SHERIDAN, Ch. J.
This is a motion by defendants to dismiss the complaint for failure to state a claim upon which relief can be granted.
The action was begun to compel arbitration under Section 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C.A. § 185, and the Declaratory Judgment Act, as amended, 28 U.S.C.A. § 2201.
The complaint alleges that the dispute involved arose on February 2, 1966, when a walkout occurred among plaintiff's employees who were members of and represented by the defendant unions. The walkout ended on the same day it began. Shortly thereafter plaintiff informed defendants that one of the employees involved, John Matteo, participated in or was responsible for the strike. Plaintiff requested that the issue of Matteo's innocence or guilt with respect to his participation or responsibility be arbitrated before the company undertook disciplinary action. The defendants refused. Plaintiff therefore brought this action to compel arbitration.
Both sides agree that whether Matteo was responsible for the walkout is a subject for arbitration under the collective bargaining agreement. Defendants contend, however, that whether Matteo's responsibility should be arbitrated before or after he is disciplined is in itself a dispute which is covered by the arbitration clause, and that this action must be dismissed and the parties sent to arbitration on both issues. In effect, defendants contend that there is a dispute as to whether a condition precedent to arbitration of the main dispute has been complied with. Plaintiff contends that the question of when disciplinary action must be taken is not a dispute subject to arbitration and that under the clear language of the agreement, only the question of Matteo's responsibility, which they seek to have arbitrated, is arbitrable.
Whether or not the company was bound to arbitrate the issue as to the time when disciplinary action must be taken is a matter to be determined by the court on the basis of the contract entered into by the parties. Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 8 L. Ed. 2d 462, 82 S. Ct. 1318; Local 490, United Rubber Workers v. Kirkhill Rubber Co., 9 Cir. 1966, 367 F.2d 956. In Boeing Co. v. International Union, UAW, 3 Cir. 1967, 370 F.2d 969, the court said:
" . . . Arbitration clauses, such as those usually contained in labor-management contracts, should be so construed as to effectuate congressional policy favoring the settlement of labor disputes. It was held in United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960): 'An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' Despite this liberal rule of construction a reluctant party may not be compelled to submit a controversy to arbitration unless under a fair construction of the agreement he is bound to do . . . . Absent a contractual obligation to the contrary, a reluctant party is free to pursue any available legal remedy to redress its grievances." (Citations omitted.)
In Strauss v. Silvercup Bakers, Inc., 2 Cir. 1965, 353 F.2d 555, the court said:
" . . . The Supreme Court, although strongly favoring arbitration of labor disputes in its many recent decisions on the subject, has nevertheless maintained that '[the] duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.' . . . The courts have the duty to determine whether the reluctant party has breached his promise to arbitrate, . . . unless the contract clearly manifests an intention that arbitrability should be decided by the arbitrator. . . . The Supreme Court held that the question of arbitrability was for the courts, even though the arbitration clause covered 'any act or conduct or relation between the parties.' . . . Moreover, the juxtaposition of an 'all disputes' clause in a collective bargaining agreement with a clause excluding certain disputes from arbitration suggests that the parties intended to have questions concerning the scope of the exclusion decided in the first place not by the arbitrator, but by the courts.