The opinion of the court was delivered by: FOGEL
Plaintiffs in this action are employees of C. Schmidt & Sons, Inc., who seek to compel their employer to make contributions to a profit sharing plan. The procedural history of the litigation is set forth in a previous opinion of this Court, reported at 374 F. Supp. 442, in which Schmidt's original motion to dismiss for failure to state a claim upon which relief can be granted was denied without prejudice pending a class action determination pursuant to Rule 23 of the Federal Rules of Civil Procedure.
Plaintiffs have subsequently withdrawn their motion for class action determination, and the action will therefore proceed on behalf of the named plaintiffs only, all of whom are members in good standing of Local 183 of the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO.
Thus Schmidt's renewed motion to dismiss, which is predicated upon plaintiffs' failure to exhaust the grievance and arbitration procedures established by the collective bargaining agreement between Local 183 and Schmidt, is now ripe for decision.
Since the class action aspect of the case has now been withdrawn by plaintiffs, we reaffirm our earlier decision that the case falls within the purview of § 301, which confers jurisdiction on the District Courts to hear "[suits] for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * * without respect to the amount in controversy or without regard to the citizenship of the parties." As we noted in our earlier memorandum, 374 F. Supp. at 445:
* * * A collective bargaining agreement exists, and one of its provisions arguably covers the disputed area. Federal jurisdiction exists, even though relief may ultimately be denied on the merits, because a resolution of the matter hinges upon the correct interpretation and application of the terms of the collective bargaining agreement. Chasis v. Progress Manufacturing Company, 382 F.2d 773, 776-777 (3d Cir. 1967); Roadway Express, Inc. v. General Teamsters, Local 249, 330 F.2d 859, 861 (3d Cir. 1964). See Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946).
Having determined that the action is properly before this Court pursuant to the jurisdictional grant in § 301, and therefore should not be remanded to the Court of Common Pleas, we now consider Schmidt's contention that the case must be dismissed because of plaintiffs' conceded failure to exhaust grievance and arbitration procedures.
Article VII, Sections 1 and 2 of the collective bargaining agreement contain the following provisions with respect to grievances and arbitration, quoted here in pertinent part:
Section 1 Grievance Procedure
All grievances involving any controversy, complaint, dispute or misunderstanding arising as to the meaning, application or observance of any provisions of this Agreement must be submitted in writing to a representative of the Employer by the aggrieved employee or his Steward before any representative of the Employer shall be required to discuss the matter with any representative of the Union. This provision is not intended to prevent officers of the Union from discussing complaints with representatives of the Employer even though no written grievance has been filed as above provided.
Any dispute, claim or grievance arising out of or relating to the interpretation or application of this agreement shall be submitted to arbitration under the Voluntary Labor Arbitration Rules of the American Arbitration Association at the request of either party submitted in writing upon the other. The parties further agree that there shall be no suspension of work when such dispute arises and while it is in the ...