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June 21, 1972

Bethlehem Mines Corporation, Plaintiff,
United Mine Workers Of America et al., Defendants

Weber, D.J.

The opinion of the court was delivered by: WEBER


 On December 15, 1971 this court issued a Preliminary Injunction at Civil Action No. 71-1109 compelling these plaintiffs and defendants to abide by the compulsory and binding arbitration provisions of their collective bargaining agreement with reference to disputes arising at Plaintiff's Mine No. 33 which occasioned a work stoppage. On March 21, 1972, plaintiff filed a petition in this court for a citation of civil contempt because of another work stoppage at the same mine in the same union over a dispute subject to arbitration. The court ordered the matter at issue, a grievance by an employee-member of Local 1368 to be submitted to the plaintiff under the grievance procedure. In accordance with the provisions of the grievance procedure the matter passed through the various stages up to Step 3. At this point the grievance procedure broke down and the matter was brought before this court. The defendant Union contends that the matter must be referred to Maurice Shadden because for many years prior to the present dispute District #2 of the United Mine Workers, which represents the miners in the Central Pennsylvania area where plaintiff's mines are located and whose Local Unions represent the miners in plaintiff's affected mines, have appointed and utilized a permanent umpire to resolve grievances that have reached the final step of the Settlement of Local District Disputes procedure. The plaintiff, on the other hand, contends that it is not bound to accept Maurice Shadden as the umpire*and plaintiff asks that the court order the arbitration to proceed under some method agreed to by the parties or directed by the court whereby the selection of the final arbitrator will be the result of mutual selection between the parties.

 The relevant contractual obligations between the parties are set forth in the National Bituminous Coal Wage Agreement of 1971, effective November 12, 1971, signed on behalf of the plaintiff by the Bituminous Coal Operators Association, Inc., and on behalf of the defendant Unions by its bargaining agent, the United Mine Workers of America.

 The relevant portion of the above agreement applicable to the present situation is as follows:

 "Article XVII -- Settlement of Disputes, Section (b) Grievance Procedure

(5) Should the Board fail to agree the matter shall, within ten calendar days after decision by the Board, be referred to an umpire who shall expeditiously and without delay decide said case. The decision of the umpire shall be final. . . .".

 Another pertinent provision of said Article XVII of the 1971 agreement is as follows:

 "Section (c) A Joint Committee on Arbitration Procedure.

A committee of equal representation from the Employers and the Union will be appointed immediately after the execution of this agreement to study the feasibility of a permanent or chief umpire and/or a panel of umpires to arbitrate disputes which may arise under the terms of the agreement.
The committee will examine methods of selection, tenure, compensation and related matters and will complete its report and recommendations no later than April 1, 1972."

 As of this date the above-mentioned committee has not completed its examination nor rendered its report.

 It is the contention of plaintiff that the above-recited section is the only controlling agreement between the parties on the mechanics of arbitration. Plaintiff contends that it is not bound by any other agreement or any former or prior practice in this matter.

 The 1971 agreement also contains the following provision:

Section (b) Prior Practice and Custom
This agreement supersedes all existing and previous contracts except as incorporated and carried forward herein by reference; and all local agreements, rules, regulations and customs heretofore established in conflict with this agreement are hereby abolished. Prior practice and custom not in conflict with this agreement may be continued, . . . Wherever a conflict arises between this agreement and any district or local agreement, this agreement shall prevail."

 The defendant contends that District #2, United Mine Workers of America, being the District including the Local Union whose members are employed by plaintiff, entered into an agreement with the Central Pennsylvania Coal Producers ...

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