The first agreement to arbitrate that existed at the time of Gebhardt's discharge arose upon the termination of the 1973-75 agreement. By stipulation, the parties have informed the Court that when the 1973-75 agreement expired by its terms on August 31, 1975, the parties agreed to continue negotiations and during negotiations to "abide by the terms of the old contract on a day-to-day basis." As negotiations continued until a month after Gebhardt's discharge, the terms of the 1973-75 contract were in effect at the time Gebhardt was fired. One of those terms provided for the funnelling of "any dispute as to the interpretation of any clause of [the] agreement or as to the carrying out of its terms" through the grievance-arbitration process. It appears clear to the Court then that this arbitration provision which was included in the 1973-75 agreement was in effect at the time Gebhardt's grievance arose; however, the defendant argues that the parties did not intend to include the arbitration provision within the extension of the "terms" of the agreement and, therefore, the Court cannot find that the arbitration agreement survived beyond the stated expiration date of the contract. The Court finds the defendant's position meritless. There is no question that at the expiration of the 1973-75 contract the parties agreed to abide by the "terms" of the old contract; the only question defendant raises is whether the parties intended that the word "terms" should be defined so as to include the arbitration provision. As the defendant has not argued that the parties ever clearly indicated that the "terms" of the contract did not include the arbitration provision, the Court must presume that the arbitration provision was an extended "term." Newspaper Guild v. Washington Post, 442 F. Supp. 1060, 96 LRRM 3138 (D.D.C. 11/15/77); see also Nolde Brothers Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 51 L. Ed. 2d 300, 97 S. Ct. 1067 (1977).
However, even if there is a question of fact remaining as to whether the 1973-75 contract's arbitration provision covers Gebhardt's grievance, summary judgment is not precluded, as the Court finds that by the 1975-78 agreement the parties also agreed to arbitrate grievances arising at the time of Gebhardt's discharge. This second agreement which was executed on September 21, 1976, was made retroactive to the expiration of the prior agreement; the retroactivity provision means that the terms of this agreement apply to events dating back as far as September 1, 1975. And as this contract contains an arbitration clause which mirrors the one in the 1973-75 agreement, there surely is an arbitration agreement existing which covers grievances arising at the time of Gebhardt's discharge. Although certain provisions in collective bargaining agreements, such as in collective union security check-off provisions, will not be applied retroactively because they adversely affect third persons, see, e.g., N.L.R.B. v. Mechanical & Allied Production Workers Union, 427 F.2d 883 (1st Cir. 1970), the arbitration provision is one which does not have such an effect and may be applied retroactively. See International Brotherhood of Electrical Workers, Local Union No. 1102 v. Wadsworth Electric Manuf. Co., 240 F. Supp. 292 (E.D. Kent. 1965). In Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 51 L. Ed. 2d 300, 97 S. Ct. 1067 (1977), the Supreme Court found that parties to collective bargaining agreements must be deemed conscious of the federal policy in favor of arbitration and, therefore, unless they clearly exclude certain disputes from arbitration, the courts are afforded a basis for concluding that all disputes are covered by their general arbitration clauses. In Nolde, the Court held that a severance pay grievance which arose after the contract's termination was arbitrable under the arbitration provision of the expired collective bargaining agreement as the right to severance pay arose under the old contract and the parties failed to exclude from their arbitration provision contract disputes arising after termination of the contract. Although other contract obligations such as the no strike duties imposed on the union might have terminated with the collective agreement's expiration, the Supreme Court found arbitration appropriate because the parties had not clearly indicated that arbitration was to terminate with the agreement.
As the parties in this case did not indicate otherwise in their agreement, this Court finds that the reasoning and policies articulated in the Nolde decision demand that the arbitration provision be applied retroactively to Gebhardt's grievance.
Having found that the parties entered at least one agreement to arbitrate grievances arising at the time of Gebhardt's discharge, the next question is whether the agreement covers Gebhardt's grievance. The defendant employer contends that it does not because Gebhardt, as City Editor, was not an employee covered by the collective bargaining agreement. Whether Gebhardt was covered by the collective bargaining agreement is a "dispute as to the interpretation of [the] agreement or as to the carrying out of its terms," and therefore under the collective agreement a question for the arbitrator. Therefore, as there is not "forceful evidence of a purpose to exclude the claim from arbitration", the Court must conclude that it is covered by the agreement's arbitration provisions. United Steelworkers v. Warrior & Gulf Navigation Company, 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960).
Once it is determined that the party seeking arbitration has shown that there is an agreement to arbitrate the grievance in question, the court's job in a Section 301 suit is generally completed. And yet, the defendant employer has raised several other objections to arbitration; however, all of these objections are "'procedural' questions which grow out of the dispute and bear on its final disposition" and therefore, should be decided by the arbitrator. John Wiley & Sons v. Livingston, 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909 (1964). The defendant claims that the grievance was not timely filed; clearly, this is a procedural matter that is not for the Court to consider and which will not bar the arbitration order. General Warehousemen & Employees Union No. 636 v. American Hardware Supply Co., 329 F.2d 789 (3rd Cir. 1964). So too is the question of whether the union's right to seek arbitration has been waived by Gebhardt proceeding in state court for severance pay. The employer claims that Gebhardt waived the union's right to request arbitration by filing his state court action for severance pay. While it is true that a party may be estopped from invoking a remedy if it has already employed another inconsistent remedy, it would appear to the Court that Gebhardt could not be found guilty of such action. In state court he is seeking severance pay; in the arbitration proceeding, the union is asking that Gebhardt be reinstated in his former position. Although these remedies do not appear inconsistent to the Court, it is really a question which the Court does not have to decide, because, like the question of timely filing, it is a procedural matter that must be left to the decision of the arbitrator. In International Union of Operating Engineers v. Flair Builders, 406 U.S. 487, 32 L. Ed. 2d 248, 92 S. Ct. 1710 (1972), the reluctant party to arbitration claimed that the equitable defense of laches prevented the Court from ordering arbitration in that case. Although laches was an equitable defense--one arising outside of the specific terms of the collective bargaining agreement--the Court held that it was subject to arbitration. Similarly, in this case, the waiver defense is a procedural defense, though equitable in nature, which is to be raised at arbitration. It cannot prevent arbitration, for if the Court was to resolve the waiver issue it would be necessary to address the merits of the case which is beyond the Court's role in a Section 301 suit. Controlled Sanitation Corporation v. District 128 of the International Association of Machinists & Aerospace Workers, 524 F.2d 1324 (3rd Cir. 1975). See also Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local No. 295 v. Servomation Corporation, 402 F. Supp. 1058 (M.D. Pa. 1975); Office & Professional Employees International Union v. Allied Industrial Workers International Union, 397 F. Supp. 688 (E.D. Wis. 1975); Transit Union v. Greyhound Lines, 323 F. Supp. 219, 77 LRRM 2238 (D.Mass. 1971). The final defense that the defendant raises to arbitration is that he claims that by accepting severance pay the grievant has waived his right to arbitration. This is similar to the last discussed defense and demands the same response. Such a defense may be properly presented in an arbitration, but it is not a defense in an action to compel arbitration under the Labor Management Relations Act. General Warehousemen & Employees Union No. 636 v. American Hardware Supply Co., 329 F.2d 636 (3rd Cir. 1964).
To conclude, the Court has found that there was an agreement to arbitrate Gebhardt's grievance and none of the objections raised by the defendant are sufficient defenses in a Section 301 suit. Therefore, the Court grants plaintiff's motion for summary judgment and orders arbitration of Gebhardt's grievance. It should be noted that the plaintiff also requests attorney's fees for its prosecution of its claim; however, as the Court finds that the defendant, in good faith, could have believed it did not have an obligation to arbitrate this grievance, the plaintiff's request will be denied. International Union of District 50, United Mine Workers of America v. Bowman Transportation, Inc., 421 F.2d 934 (5th Cir. 1970).
Clarence C. Newcomer, J.
AND NOW, to wit, this 30th day of March, 1978, for the reasons stated in the accompanying memorandum, it is hereby ORDERED that plaintiff's Motion for Summary Judgment, except as it relates to attorney's fees, is GRANTED and defendant is to immediately arrange to commence arbitration on the grievance which is the subject of this suit. It is further ORDERED that Defendant's Motion for Summary Judgment is DENIED.
AND IT IS SO ORDERED.
Clarence C. Newcomer, J.