APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-1775)
Before Aldisert, Weis and Higginbotham, Circuit Judges.
This appeal from a summary judgment in favor of the union ordering arbitration of a grievance presents a narrow issue for decision. We must decide if, by its order, the district court required the arbitrator to decide in the first instance whether the grievance was arbitrable. If so, the order is defective because "whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court," Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 1320, 8 L. Ed. 2d 462 (1962), and not by the arbitrator.
The controversy arises from an attempt by the union to grieve the employment termination of Andrew McKay at age sixty-five. The company vigorously contends that McKay's termination was a retirement governed by the Westinghouse Pension Plan, and as such it is not a proper subject for grievance. The union argues that the termination was a discharge without just cause, and therefore arbitrable. The problem illustrates the tension between provisions contained in two agreements entered into by the company and the union the collective bargaining agreement, known as the IATSE, Local # 804, KYW-TV Agreement, and the Pension and Insurance Agreement.
Article IX of the collective bargaining agreement described the company's right "to discharge any of its employees for just cause." App. at 39a. Article XI of the agreement, entitled "Grievance and Arbitration," provided that all grievances, disputes and differences with respect to the interpretation or application of the agreement were to be resolved through the grievance procedure, which culminated in final and binding arbitration. Article V of the collective bargaining agreement disclosed that the parties "have executed a Pension, Insurance and Personal Savings Plan Agreement which extends the benefits of those Plans to the employes covered by this Agreement." App. at 33a.*fn1 Article I, Section 3(a) of the Pension and Insurance Agreement provided that its terms "are accepted by the Union, for the duration of this Agreement, as a complete insurance, pension and savings program." App. at 60a. Section 3(b) provided:
It is further understood that no matter respecting any Plan provided by this Agreement or any differences arising under any such Plan, or ( ) concerning any benefits payable by the Company under any such Plan or any benefits the payment of which could or might be insured by the Company, shall be subject to any grievance or arbitration procedure which may be established by agreement between the Company and the Union.
What has triggered the immediate dispute is a compulsory retirement provision contained in neither the collective bargaining nor the Pension and Insurance agreements, but set forth in the Westinghouse Pension Plan, a plan specifically referred to in Article I, Section 3(a) of the Pension and Insurance Agreement. Section 2.A of the Westinghouse Pension Plan provided:
(A)n Employe shall retire from service with his Employer on the first day of the month following the month in which his 65th birthday occurs. . . .
Although this matter is before us on appeal from a summary judgment, the parties agreed at oral argument that no material issue of fact prevented a proper exercise of the summary judgment power of the district court. The litigants before us continue to maintain the positions they asserted before the district court. For its part, the company relies on Section 3(b), the non-arbitrability provision of the Pension and Insurance Agreement. The union responds that this language must not be interpreted in vacuo. This section refers only to controversies over details of the plan, the union ...