MEMORANDUM AND ORDER
Plaintiff, B. O. Daubert, Inc. [Daubert] brought this action pursuant to 29 U.S.C. § 185 to vacate an arbitration award rendered on March 16, 1984 in favor of Defendant Local 44 of the Sheet Metal Workers International Association [Union]. The parties have filed cross motions for summary judgment and briefs in support thereof. Oral argument was heard on the motions on September 20, 1985. For the reasons set forth below, the Union's motion for summary judgment will be granted and Daubert's motion for summary judgment will be denied.
In order to clarify what the court considers the dispositive issue in this matter, a brief recitation of the factual background is necessary. Both parties agree that in 1975 Daubert was a member of an employer association known as the Sheet Metal Contractors Association of Northeastern Pennsylvania, Inc. [Association]. For a three-year contract period of 1978-1981, the Association and the Union were parties to a collective bargaining agreement which bound the individual employer-members of the Association.
Daubert admits that it was a member of the Association and thus bound by the 1978-1981 contract. In 1981, a new multi-employer agreement was executed by the Union and Association. Daubert, however, maintains that before negotiations for the new contract commenced, it withdrew its membership from the Association and, therefore, was not a party to the collective bargaining agreement covering the 1981-1984 period. The Union's position is that Daubert was a member and, therefore, bound by the contract.
On July 16, 1983, the Union filed a grievance against Daubert alleging that Daubert had breached the collective bargaining agreement by performing work at two different job sites without using Union members as required under the contract. Daubert challenged the jurisdiction of the Local Joint Adjustment Board's authority to hear and decide the merits of the Union's grievance. In lieu of appearing before the Board, Daubert submitted a "Position Statement" challenging the Board's jurisdiction but also addressing the merits raised by the Union's grievance. By decision dated March 16, 1984, the Board found that Daubert was a member of the Association and, in utilizing non-Union members at two job sites, had violated the collective bargaining agreement. The Board assessed damages against Daubert in the amount of $33,263.00.
As a general rule, it is for the court to determine whether the parties have entered into a contract which imposes a duty to arbitrate. International Brotherhood of Electrical Workers, Local 1228 v. Freedom WLNE-TV, Inc., 760 F.2d 8, 10 (1st Cir. 1985) (citations omitted). If, however, the issue of whether the contract is binding is based solely upon a construction of the collective bargaining agreement, then that issue may be properly decided by the arbitrator. Id. The court is guided by the decision rendered by the Court of Appeals for the Second Circuit in Rochdale Village, Inc. v. Public Service Employees, 605 F.2d 1290, 1295 (2d Cir. 1979):
If a court finds that the parties have agreed to submit to arbitration disputes "of any nature or character," or simply "any and all disputes," all questions, including those regarding termination, will be properly consigned to the arbitrator: "With that finding the court will have exhausted its function, except to order the reluctant party to arbitration. . . ." In dealing with a narrower arbitration clause, a court's inquiry is not so circumscribed, and it will be proper to consider whether the conduct in issue is on its face within the purview of the clause. . . . For example, if an arbitration clause covers only employee grievances, the court should not compel arbitration of questions of contract termination. . . . But if the arbitration clause covers disputes as to contract interpretation, and the termination is alleged to have occurred on a basis "implicit in [the] contract," the termination question is arbitrable.
The initial issue presented in the case sub judice is whether Daubert was a member of the collective bargaining agreement of 1981-1984. The employer contends that this is an issue for the court while the Union argues that under the broad language of the agreement, it is a question for the arbitrator to decide. In determining this issue, the court necessarily must examine the collective bargaining agreement of 1978-1981 to which Daubert concedes it was bound. See Transcript of Oral Argument, Document 41 of the Record at 18.
Daubert contends that it withdrew its membership from the Association and, therefore, was not bound by the 1981-1984 collective bargaining agreement. In Ottley v. Sheepshead Nursing Home, 688 F.2d 883 (2d Cir. 1982), the Court of Appeals for the Second Circuit was faced with an almost identical factual situation and argument. In Ottley, the employer, Sheepshead Nursing Home [SNH], was a member of a multi-employer nursing home association. On behalf of SNH, the association entered into a collective bargaining agreement. In particular, the agreement had a three-year term until March 31, 1981, which provided that "if membership in the Association . . . is terminated . . . this agreement shall become null and void to such employer." On October 30, 1980, SNH withdrew its membership from the association. After its withdrawal, in January 1981, SNH discharged a union employee. The union demanded arbitration which SNH refused, claiming that under the terms of the collective bargaining agreement, withdrawal from the association released it from all obligations.
SNH was ordered to arbitration and the arbitrator held that its previous withdrawal was ineffective due to a failure to give 60 days notice. In the collective bargaining agreement, as previously noted, unlike the present case, there was a provision to the effect that if membership in the association was terminated, the collective bargaining agreement would be null and void. The Second Circuit upheld the holding that the dispute should be arbitrated. In so finding, the court stated:
We disagree with SNH's mode of analysis. By focusing initially only on section 32 of the contract [provision that membership termination rendered collective bargaining agreement null and void], SNH places the cart before the horse. As we have made clear in recent decisions, . . . the arbitrability of any dispute turns in the first instance on the arbitration clause of the contract . . . . If its arbitration clause is broad, then we must find that the parties bargained to have any dispute that arguably falls within the scope of that clause settled through arbitration, absent compelling proof to the contrary.
Ottley, supra at 886 (citations omitted).
In analyzing the arbitration issue, the Ottley court noted the case of Nolde v. Brothers, Inc. v. Local 358, Bakery & Confectionery Workers, 430 U.S. 243, 51 L. Ed. 2d 300, 97 S. Ct. 1067 (1977) in which the Supreme Court held that arbitration was required even though it was conceded by the parties that the contract had terminated when the dispute arose.
This does not mean that, in the face of claim that a contract with a broad arbitration clause has terminated, a court must always order arbitration simply because the other party to the contract requests it. In such a situation, there must at least be a colorable claim under the contract that the contract has not terminated.