MEMORANDUM AND ORDER
Plaintiff has brought this action for violation of a contract between the Servomation Corporation and the Union pursuant to the provisions of § 301 of the National Labor Relations Act, as amended. 29 U.S.C. § 185(a). The complaint alleges that defendant has violated the collective bargaining agreement between the parties in the defendant's refusal to submit a purported grievance to arbitration.
Plaintiff seeks an order compelling the defendant to arbitrate the grievance in accordance with its duties under the agreement, together with a request for attorneys' fees and court costs.
Defendant has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on several grounds which are discussed below.
Defendant first contends that plaintiff's complaint fails to state a claim upon which relief can be granted. Specifically, defendant alleges that the Union's grievance protests the defendant's refusal to recall seniority strikers after they had been permanently replaced by "probationers" during the course of an economic strike.
On November 18, 1975 the Union ended the strike and accepted defendant's final pre-strike contract proposal, effective December 1, 1974. The strike settlement failed to include plaintiff's request for reinstatement of strikers. Therefore, the defendant contends that plaintiff seeks to compel, by way of arbitration of a "grievance," that which it was unable to obtain through contract negotiations. Defendant contends that not only did the settlement agreement resolve the question as to reinstatement so as to estop plaintiff from presenting it as a grievance within the arbitration provision of the collective bargaining agreement, but in any event the alleged grievance occurred prior to the execution of the collective bargaining agreement and is unrelated to its "meaning, interpretation or application."
Plaintiff, on the other hand, urges the court to consider only the clear import of the language in the collective bargaining agreement concerning the scope of the arbitration and grievance procedures. Inasmuch as the settlement agreement was signed seven days prior to the date on which the parties entered into the collective bargaining agreement, plaintiff contends that such agreements are not contemporaneous and that therefore the settlement agreement should be excluded from our consideration by reason of the parol evidence rule or the doctrine of merger. On the basis of the collective bargaining provisions above, plaintiff believes that the crux of its grievance is within the ambit of the arbitration and grievance provisions.
Clearly, federal labor policy under the Labor Management Relations Act, 29 U.S.C. § 141, et seq. favors the arbitration of labor disputes. CONTROLLED SANITATION CORP. v. DISTRICT 128 of The INT'L ASS'N OF MACHINIST AND AEROSPACE WORKERS, AFL-CIO, 524 F.2d 1324, Civil Action No. 69-489, 3d Cir., decided October 17, 1975. The law is also well-settled that while arbitration clauses contained in labor-management contracts should be construed as to effectuate congressional policy favoring the settlement of disputes, the duty to arbitrate is wholly contractual and that "a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty." JOHN WILEY & SONS, INC. v. LIVINGSTON, 376 U.S. 543, 547, 11 L.Ed 2d 898, 84 S. Ct. 909 (1964); BOEING CO. v. INT'L UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS, 370 F.2d 969 (3d Cir. 1967). As it was stated in UNITED STEELWORKERS OF AMERICA v. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574, 582-83, 4 LEd2d 1409, 80 S. Ct. 1347 (1960), a part of the often-cited Steelworkers trilogy:
"The judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. 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. Doubts should be resolved in favor of coverage." (footnote omitted)
The Supreme Court further noted that in the absence of any express provision excluding a particular grievance from arbitration, exclusion of a claim should only prevail where it is clear that such was the intent of the parties at the time they drafted their agreement. Id., at 584-85.
The Third Circuit court has held that despite the liberal rule of construction of arbitration clauses, recent United States Supreme Court decisions indicate that arbitration is not proper unless under a fair construction of the contract on its face, within the scope of the grievance and arbitration provisions of the collective bargaining agreement as viewed in light of traditional principles of contract interpretation, the parties bound themselves to arbitrate the issue. CONTROLLED SANITATION CORP. v. DISTRICT 128 Of The INT'L ASS'N OF MACHINIST AND AEROSPACE WORKERS, supra; AFFILIATED FOOD DISTRIBUTORS, INC. v. LOCAL UNION No. 229, 483 F.2d 418, 420 (3d Cir. 1973). "In effect, there is a presumption in favor of arbitrability which should be dispelled only when the agreement explicitly exempts certain conduct from arbitration or when the terms of the agreement, read as a whole, clearly envision non-arbitrability." CONTROLLED SANITATION CORP., supra, at 1328.
The essential point of our inquiry then is as to the intention of the parties when they negotiated and signed their settlement agreement and collective bargaining agreement as expressed in the documents themselves. The pertinent sections of the settlement agreement provide:
"I. That the collective bargaining agreement embracing all terms and conditions of the Company's final offer (proposal of September 6, 1974) shall be effective December 1, 1974, and remain in effect through December 1, 1975.