Respondent labor union brought an action under § 301 of the
Labor Management Relations Act to compel arbitration under a
collective bargaining agreement executed by a company which the
petitioner acquired by merger. The District Court denied relief,
but the Court of Appeals reversed and directed arbitration.
Held:
1. The courts determine whether arbitration is required, based
on the agreement.
Atkinson v. Sinclair Refining Co.,
370 U. S. 238,
followed. Pp.
376 U. S.
546-547.
2. The substantive law which controls suits under § 301 of the
Act is federal law.
Textile Workers Union v. Lincoln
Mills, 353 U. S. 448,
followed. P.
376 U. S.
548.
3. Rights of employees under a collective bargaining agreement
are not automatically lost by the disappearance by merger of the
employer, and, in appropriate circumstances, the successor employer
may be required to arbitrate under the contract. P.
376 U. S.
548.
4. Arbitration has a key role in effectuating national labor
policy, and when there is substantial continuity of identity in the
business enterprise and a clear assertion by the union of rights
under the agreement, the duty to arbitrate survives the merger. Pp.
376 U. S.
549-551.
5. Procedural questions growing out of a dispute and bearing on
its disposition are to be determined by the arbitrator. Pp.
376 U. S.
555-559.
313 F.2d 52, affirmed, in part on other grounds.
Page 376 U. S. 544
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is an action by a union, pursuant to § 301 of the Labor
Management Relations Act, 61 Stat. 136, 156, 29 U.S.C. § 185, to
compel arbitration under a collective bargaining agreement. The
major questions presented are (1) whether a corporate employer must
arbitrate with a union under a bargaining agreement between the
union and another corporation which has merged with the employer,
and, if so, (2) whether the courts or the arbitrator is the
appropriate body to decide whether procedural prerequisites which,
under the bargaining agreement, condition the duty to arbitrate
have been met. Because of the importance of both questions to the
realization of national labor policy, we granted certiorari (373
U.S. 908) to review a judgment of the Court of Appeals directing
arbitration (313 F.2d 52), in reversal of the District Court which
had refused such relief (203 F.Supp. 171). We affirm the judgment
below, but, with respect to the first question above, on grounds
which may differ from those of the Court of Appeals, whose answer
to that question is unclear.
I
District 65, Retail, Wholesale and Department Store Union,
AFL-CIO, entered into a collective bargaining agreement with
Interscience Publishers, Inc., a publishing firm, for a term
expiring on January 31, 1962. The agreement did not contain an
express provision making it binding on successors of Interscience.
On October 2,
Page 376 U. S. 545
1961, Interscience merged with the petitioner, John Wiley &
Sons, Inc., another publishing firm, and ceased to do business as a
separate entity. There is no suggestion that the merger was not for
genuine business reasons.
At the time of the merger, Interscience had about 80 employees,
of whom 40 were represented by this Union. It had a single plant in
New York City, and did an annual business of somewhat over
$1,000,000. Wiley was a much larger concern, having separate office
and warehouse facilities and about 300 employees, and doing an
annual business of more than $9,000,000. None of Wiley's employees
was represented by a union.
In discussions before and after the merger, the Union and
Interscience (later Wiley) were unable to agree on the effect of
the merger on the collective bargaining agreement and on the rights
under it of those covered employees hired by Wiley. The Union's
position was that, despite the merger, it continued to represent
the covered Interscience employees taken over by Wiley, and that
Wiley was obligated to recognize certain rights of such employees
which had "vested" under the Interscience bargaining agreement.
Such rights, more fully described below, concerned matters
typically covered by collective bargaining agreements, such as
seniority status, severance pay, etc. The Union contended also that
Wiley was required to make certain pension fund payments called for
under the Interscience bargaining agreement.
Wiley, though recognizing for purposes of its own pension plan
the Interscience service of the former Interscience employees,
asserted that the merger terminated the bargaining agreement for
all purposes. It refused to recognize the Union as bargaining agent
or to accede to the Union's claims on behalf of Interscience
employees. All such employees, except a few who ended their Wiley
employment with severance pay and for
Page 376 U. S. 546
whom no rights are asserted here, continued in Wiley's
employ.
No satisfactory solution having been reached, the Union, one
week before the expiration date of the Interscience bargaining
agreement, commenced this action to compel arbitration.
II
The threshold question in this controversy is who shall decide
whether the arbitration provisions of the collective bargaining
agreement survived the Wiley-Interscience merger, so as to be
operative against Wiley. Both parties urge that this question is
for the courts. Past cases leave no doubt that this is correct.
[
Footnote 1]
"Under our decisions,
Page 376 U. S. 547
whether or not he company was bound to arbitrate, as well as
what issues it must arbitrate, is a matter to be determined by the
Court on the basis of the contract entered into by the
parties."
Atkinson v. Sinclair Refining Co., 370 U.
S. 238,
370 U. S. 241.
Accord, e.g., United Steelworkers of America v. Warrior &
Gulf Navigation Co., 363 U. S. 574,
363 U. S. 582.
The problem in those cases was whether an employer, concededly
party to and bound by a contract which contained an arbitration
provision, had agreed to arbitrate disputes of a particular kind.
Here, the question is whether Wiley, which did not itself sign the
collective bargaining agreement on which the Union's claim to
arbitration depends, is bound at all by the agreement's arbitration
provision. The reason requiring the courts to determine the issue
is the same in both situations. The duty to arbitrate being of
contractual origin, a compulsory submission to arbitration cannot
precede judicial determination that the collective bargaining
agreement does in fact create such a duty. Thus, just as an
employer has no obligation to arbitrate issues which it has not
agreed to arbitrate, so,
a fortiori, it cannot be
compelled to arbitrate if an arbitration clause does not bind it at
all.
The unanimity of views about who should decide the question of
arbitrability does not, however, presage the parties' accord about
what is the correct decision. Wiley, objecting to arbitration,
argues that it never was a party to the collective bargaining
agreement, and that, in any event, the Union lost its status as
representative of the former Interscience employees when they were
mingled in a larger Wiley unit of employees. The Union argues that
Wiley, as successor to Interscience, is bound by the latter's
agreement at least sufficiently to require it to arbitrate. The
Union relies on § 90 of the N.Y. Stock Corporation Law, which
provides, among other things, that no "claim or demand for any
cause" against a constituent
Page 376 U. S. 548
corporation shall be extinguished by a consolidation. [
Footnote 2] Alternatively, the Union
argues that, apart from § 90, federal law requires that arbitration
go forward, lest the policy favoring arbitration frequently be
undermined by changes in corporate organization.
Federal law, fashioned "from the policy of our national labor
laws," controls.
Textile Workers Union of America v. Lincoln
Mills, 353 U. S. 448.
State law may be utilized so far as it is of aid in the development
of correct principles or their application in a particular case,
id. at
353 U. S. 457,
but the law which ultimately results is federal. We hold that the
disappearance by merger of a corporate employer which has entered
into a collective bargaining agreement with a union does not
automatically terminate all rights of the employees covered by the
agreement, and that, in appropriate circumstances, present here,
the successor employer may be required to arbitrate with the union
under the agreement.
Page 376 U. S. 549
This Court has, in the past, recognized the central role of
arbitration in effectuating national labor policy. Thus, in
Warrior & Gulf Navigation Co., supra, at
363 U. S. 578,
arbitration was described as "the substitute for industrial
strife," and as "part and parcel of the collective bargaining
process itself." It would derogate from "[t]he federal policy of
settling labor disputes by arbitration,"
United Steelworkers of
America v. Enterprise Wheel & Car Corp., 363 U.
S. 593,
363 U. S. 596,
if a change in the corporate structure or ownership of a business
enterprise had the automatic consequence of removing a duty to
arbitrate previously established; this is so as much in cases like
the present, where the contracting employer disappears into another
by merger, as in those in which one owner replaces another, but the
business entity remains the same.
Employees, and the union which represents them, ordinarily do
not take part in negotiations leading to a change in corporate
ownership. The negotiations will ordinarily not concern the
wellbeing of the employees, whose advantage or disadvantage,
potentially great, will inevitably be incidental to the main
considerations. The objectives of national labor policy, reflected
in established principles of federal law, require that the rightful
prerogative of owners independently to rearrange their businesses
and even eliminate themselves as employers be balanced by some
protection to the employees from a sudden change in the employment
relationship. The transition from one corporate organization to
another will, in most cases, be eased, and industrial strife
avoided, if employees' claims continue to be resolved by
arbitration, rather than by "the relative strength . . . of the
contending forces,"
Warrior & Gulf, supra, at
363 U. S.
580.
The preference of national labor policy for arbitration as a
substitute for tests of strength between contending forces could be
overcome only if other considerations compellingly
Page 376 U. S. 550
so demanded. We find none. While the principles of law governing
ordinary contracts would not bind to a contract an unconsenting
successor to a contracting party, [
Footnote 3] a collective bargaining agreement is not an
ordinary contract.
". . . [I]t is a generalized code to govern a myriad of cases
which the draftsmen cannot wholly anticipate. . . . The collective
agreement covers the whole employment relationship. It calls into
being a new common law -- the common law of a particular industry
or of a particular plant."
Warrior & Gulf, supra, at
363 U. S.
578-579 (footnotes omitted). Central to the peculiar
status and function of a collective bargaining agreement is the
fact, dictated both by circumstance,
see id., at
363 U. S. 580,
and by the requirements of the National Labor Relations Act, that
it is not in any real sense the simple product of a consensual
relationship. Therefore, although the duty to arbitrate, as we have
said,
supra, pp.
376 U. S.
546-547, must be founded on a contract, the impressive
policy considerations favoring arbitration are not wholly overborne
by the fact that Wiley did not sign the contract being construed.
[
Footnote 4] This case cannot
readily be assimilated to the category of those in which there is
no contract whatever, or none which is reasonably related to the
party sought to be obligated. There was a contract, and
Interscience, Wiley's predecessor, was party to it. We thus find
Wiley's obligation to arbitrate this dispute in the
Interscience
Page 376 U. S. 551
contract construed in the context of a national labor
policy.
We do not hold that, in every case in which the ownership or
corporate structure of an enterprise is changed, the duty to
arbitrate survives. As indicated above, there may be cases in which
the lack of any substantial continuity of identity in the business
enterprise before and after a change would make a duty to arbitrate
something imposed from without, not reasonably to be found in the
particular bargaining agreement and the acts of the parties
involved. So too, we do not rule out the possibility that a union
might abandon its right to arbitration by failing to make its
claims known. Neither of these situations is before the Court.
Although Wiley was substantially larger than Interscience, relevant
similarity and continuity of operation across the change in
ownership is adequately evidenced by the wholesale transfer of
Interscience employees to the Wiley plant, apparently without
difficulty. The Union made its position known well before the
merger, and never departed from it. In addition, we do not suggest
any view on the questions surrounding a certified union's claim to
continued representative status following a change in ownership.
See, e.g., Labor Board v. Aluminum Tubular Corp., 299 F.2d
595, 598-600;
Labor Board v. McFarland, 306 F.2d 219;
Cruse Motors, Inc., 105 N.L.R.B. 242, 247. This Union does
not assert that it has any bargaining rights independent of the
Interscience agreement; it seeks to arbitrate claims based on that
agreement, now expired, not to negotiate a new agreement. [
Footnote 5]
Page 376 U. S. 552
III
Beyond denying its obligation to arbitrate at all, Wiley urges
that the Union's grievances are not within the scope of the
arbitration clause. The issues which the Union sought to arbitrate,
as set out in the complaint, are:
"(a) Whether the seniority rights built up by the Interscience
employees must be accorded to said employees now and after January
30, 1962."
"(b) Whether, as part of the wage structure of the employees,
the Company is under an obligation to continue to make
contributions to District 65 Security Plan and District 65 Security
Plan Pension Fund now and after January 30, 1962."
"(c) Whether the job security and grievance provisions of the
contract between the parties shall continue in full force and
effect."
"(d) Whether the Company must obligate itself to continue liable
now and after January 30, 1962 as to severance pay under the
contract."
"(e) Whether the Company must obligate itself to continue liable
now and after January 30, 1962 for vacation pay under the contract.
"
Page 376 U. S. 553
Section 16.0 of the collective bargaining agreement provides for
arbitration as the final stage of grievance procedures which are
stated to be the "sole means of obtaining adjustment" of
"any differences, grievance or dispute between the Employer and
the Union arising out of or relating to this agreement, or its
interpretation or application, or enforcement. . . ."
There are a number of specific exceptions to the coverage of the
grievance procedures, none of which is applicable here. [
Footnote 6] Apart from them, the
intended wide breadth of the arbitration clause is reflected by §
16.9 of the agreement which provides, with an irrelevant
exception:
". . . [T]he arbitration procedure herein set forth is the sole
and exclusive remedy of the parties hereto and the employees
covered hereby, for any claimed violations of this contract, and
for any and all acts or omissions claimed to have been committed by
either party during the term of this agreement, and such
arbitration procedure shall be (except to enforce, vacate or modify
awards) in lieu of any and all other remedies, forums at law, in
equity or otherwise which will or may be available to either of the
parties. . . . "
Page 376 U. S. 554
All of the Union's grievances concern conditions of employment
typically covered by collective bargaining agreements and submitted
to arbitration if other grievance procedures fail. Specific
provision for each of them is made in the Interscience agreement.
[
Footnote 7] There is thus no
question that, had a dispute concerning any of these subjects, such
as seniority rights or severance pay, arisen between the Union and
Interscience prior to the merger, it would have been arbitrable.
Wiley argues, however, that the Union's claims are plainly outside
the scope of the arbitration clause: first, because the agreement
did not embrace post-merger claims, and, second, because the claims
relate to a period beyond the limited term of the agreement.
In all probability, the situation created by the merger was one
not expressly contemplated by the Union or Interscience when the
agreement was made in 1960. Fairly taken, however, the Union's
demands collectively raise the question which underlies the whole
litigation: what is the effect of the merger on the rights of
covered employees? It would be inconsistent with our holding that
the obligation to arbitrate survived the merger were we to hold
that the fact of the merger, without more, removed claims otherwise
plainly arbitrable from the scope of the arbitration clause.
It is true that the Union has framed its issues to claim rights
not only "now" -- after the merger but during the term of the
agreement -- but also after the agreement expired by its terms.
Claimed rights, during the term of the agreement, at least, are
unquestionably within the arbitration clause; we do not understand
Wiley to urge that the Union's claims to all such rights have
become
Page 376 U. S. 555
moot by reason of the expiration of the agreement. [
Footnote 8] As to claimed rights "after
January 30, 1962," it is reasonable to read the claims as based
solely on the Union's construction of the Interscience agreement in
such a way that, had there been no merger, Interscience would have
been required to discharge certain obligations notwithstanding the
expiration of the agreement. [
Footnote 9] We see no reason why parties could not, if
they so chose, agree to the accrual of rights during the term of an
agreement and their realization after the agreement had expired. Of
course, the Union may not use arbitration to acquire new rights
against Wiley any more than it could have used arbitration to
negotiate a new contract with Interscience, had the existing
contract expired and renewal negotiations broken down.
Whether or not the Union's demands have merit will be determined
by the arbitrator in light of the fully developed facts. It is
sufficient for present purposes that the demands are not so plainly
unreasonable that the subject matter of the dispute must be
regarded as nonarbitrable because it can be seen in advance that no
award to the Union could receive judicial sanction.
See Warrior
& Gulf, supra, at
363 U. S. 582-583.
IV
Wiley's final objection to arbitration raises the question of
so-called "procedural arbitrability." The Interscience agreement
provides for arbitration as the third stage of the grievance
procedure. "Step 1" provides for
"a conference between the affected employee, a Union Steward and
the Employer, officer or exempt supervisory person
Page 376 U. S. 556
in charge of his department."
In "Step 2," the grievance is submitted to
"a conference between an officer of the Employer, or the
Employer's representative designated for that purpose, the Union
Shop Committee and/or a representative of the Union."
Arbitration is reached under "Step 3" "in the event that the
grievance shall not have been resolved or settled in
Step 2.'"
[Footnote 10] Wiley argues
that, since Steps 1 and 2 have not been followed, and since the
duty to arbitrate arises only in Step 3, it has no duty to
arbitrate this dispute. [Footnote 11] Specifically, Wiley urges that the question
whether "procedural" conditions to arbitration have been met must
be decided by the court, and not the arbitrator. [Footnote 12]
We think that labor disputes of the kind involved here cannot be
broken down so easily into their "substantive" and "procedural"
aspects. Questions concerning the procedural prerequisites to
arbitration do not arise in a vacuum; they develop in the context
of an actual dispute
Page 376 U. S. 557
about the lights of the parties to the contract or those covered
by it. In this case, for example, the Union argues that Wiley's
consistent refusal to recognize the Union's representative status
after the merger made it "utterly futile -- and a little bit
ridiculous to follow the grievance steps as set forth in the
contract." Brief, p. 41. In addition, the Union argues that time
limitations in the grievance procedure are not controlling, because
Wiley's violations of the bargaining agreement were "continuing."
These arguments in response to Wiley's "procedural" claim are
meaningless unless set in the background of the merger and the
negotiations surrounding it.
Doubt whether grievance procedures or some part of them apply to
a particular dispute, whether such procedures have been followed or
excused, or whether the unexcused failure to follow them avoids the
duty to arbitrate cannot ordinarily be answered without
consideration of the merits of the dispute which is presented for
arbitration. In this case, one's view of the Union's responses to
Wiley's "procedural" arguments depends to a large extent on how one
answers questions bearing on the basic issue, the effect of the
merger --
e.g., whether or not the merger was a
possibility considered by Wiley and the Union during the
negotiation of the contract. It would be a curious rule which
required that intertwined issues of "substance" and "procedure"
growing out of a single dispute and raising the same questions on
the same facts had to be carved up between two different forums,
one deciding after the other. Neither logic nor considerations of
policy compel such a result.
Once it is determined, as we have, that the parties are
obligated to submit the subject matter of a dispute to arbitration,
"procedural" questions which grow out of the dispute and bear on
its final disposition should be left to the arbitrator. Even under
a contrary rule, a court
Page 376 U. S. 558
could deny arbitration only if it could confidently be said not
only that a claim was strictly "procedural," and therefore within
the purview of the court, but also that it should operate to bar
arbitration altogether, and not merely limit or qualify an arbitral
award. In view of the policies favoring arbitration and the
parties' adoption of arbitration as the preferred means of settling
disputes, such cases are likely to be rare indeed. In all other
cases, those in which arbitration goes forward, the arbitrator
would ordinarily remain free to reconsider the ground covered by
the court insofar as it bore on the merits of the dispute, using
the flexible approaches familiar to arbitration. Reservation of
"procedural" issues for the courts would thus not only create the
difficult task of separating related issues, but would also produce
frequent duplication of effort.
In addition, the opportunities for deliberate delay and the
possibility of well intentioned but no less serious delay created
by separation of the "procedural" and "substantive" elements of a
dispute are clear. While the courts have the task of determining
"substantive arbitrability," there will be cases in which
arbitrability of the subject matter is unquestioned, but a dispute
arises over the procedures to be followed. In all of such cases,
acceptance of Wiley's position would produce the delay attendant
upon judicial proceedings preliminary to arbitration. As this case,
commenced in January, 1962, and not yet committed to arbitration,
well illustrates, such delay may entirely eliminate the prospect of
a speedy arbitrated settlement of the dispute, to the disadvantage
of the parties (who, in addition, will have to bear increased
costs) and contrary to the aims of national labor policy.
No justification for such a generally undesirable result is to
be found in a presumed intention of the parties. Refusal to order
arbitration of subjects which the parties
Page 376 U. S. 559
have not agreed to arbitrate does not entail the fractionating
of disputes about subjects which the parties do wish to have
submitted. Although a party may resist arbitration once a grievance
has arisen, as does Wiley here, we think it best accords with the
usual purposes of an arbitration clause and with the policy behind
federal labor law to regard procedural disagreements not as
separate disputes, but as aspects of the dispute which called the
grievance procedures into play.
With the reservation indicated at the outset (p.
376 U. S. 544
and p.
376 U. S. 546,
note 1 supra), the
judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE GOLDBERG took no part in the consideration or
decision of this case.
[
Footnote 1]
Wiley argues that the Court of Appeals decided that the effect
of the merger on the obligation to arbitrate was a question for the
arbitrator. The opinion below is unclear. It first states that
"[t]he question of "substantive arbitrability" is for the court,
not for the arbitrator, to decide." 313 F.2d at 55. At another
point, it says:
"We merely hold that, as we interpret the collective bargaining
agreement before us in the light of Supreme Court decisions
enunciating the federal policy of promoting industrial peace and
stability, especially with reference to arbitration procedures set
up in collective bargaining agreements, we cannot say that it was
intended that this consolidation should preclude this Union from
proceeding to arbitration to determine the effect of the
consolidation on the contract and on the rights of the employees
arising under the contract."
313 F.2d at 56-57.
Elsewhere, however, the opinion states:
". . . [W]e think and hold . . . that it is not too much to
expect and require that this employer proceed to arbitration with
the representatives of the Union to determine whether the
obligation to arbitrate regarding the substantive terms of the
contract survived the consolidation on October 2, 1961, and, if so,
just what employee rights, if any, survived the consolidation."
313 F.2d at 57 (footnote omitted). Judge Kaufman, concurring
separately, plainly thought that the court had left to the
arbitrator the question of whether Wiley was obligated to arbitrate
at all. 313 F.2d at 65, 66.
[
Footnote 2]
"The rights of creditors of any constituent corporation shall
not in any manner be impaired, nor shall any liability or
obligation due or to become due, or any claim or demand for any
cause existing against any such corporation or against any
stockholder thereof be released or impaired by any such
consolidation; but such consolidated corporation shall be deemed to
have assumed and shall be liable for all liabilities and
obligations of each of the corporations consolidated in the same
manner as if such consolidated corporation had itself incurred such
liabilities or obligations. The stockholders of the respective
constituent corporations shall continue subject to all the
liabilities, claims and demands existing against them as such at or
before the consolidation; and no action or proceeding then pending
before any court or tribunal in which any constituent corporation
is a party, or in which any such stockholder is a party, shall
abate or be discontinued by reason of such consolidation, but may
be prosecuted to final judgment as though no consolidation had been
entered into; or such consolidated corporation may be substituted
as a party in place of any constituent corporation, by order of the
court in which such action or proceeding may be pending."
[
Footnote 3]
But cf. the general rule that, in the case of a merger,
the corporation which survives is liable for the debts and
contracts of the one which disappears. 15 Fletcher, Private
Corporations (1961 rev. ed.), § 7121.
[
Footnote 4]
Compare the principle that, when a contract is
scrutinized for evidence of an intention to arbitrate a particular
kind of dispute, national labor policy requires, within reason,
that "an interpretation that covers the asserted dispute,"
Warrior & Gulf, supra, pp.
363 U. S.
582-583, be favored.
[
Footnote 5]
The fact that the Union does not represent a majority of an
appropriate bargaining unit in Wiley does not prevent it from
representing those employees who are covered by the agreement which
is in dispute and out of which Wiley's duty to arbitrate arises.
Retail Clerks Int'l Ass'n., Local Unions Nos. 128 and 633 v.
Lion Dry Goods, Inc., 369 U. S. 17. There
is no problem of conflict with another union,
cf. L. B. Spear
& Co., 106 A.L.R.B. 687, since Wiley had no contract with
any union covering the unit of employees which received the former
Interscience employees.
Problems might be created by an arbitral award which required
Wiley to give special treatment to the former Interscience
employees because of rights found to have accrued to them under the
Interscience contract. But the mere possibility of such problems
cannot cut off the Union's right to press the employees' claims in
arbitration. While it would be premature at this stage to speculate
on how to avoid such hypothetical problems, we have little doubt
that, within the flexible procedures of arbitration, a solution can
be reached which would avoid disturbing labor relations in the
Wiley plant.
[
Footnote 6]
Section 16.5 provides:
"It is agreed that, in addition to other provisions elsewhere
contained in this agreement which expressly deny arbitration to
specific events, situations or contract provisions, the following
matters shall not be subject to the arbitration provisions of this
agreement:"
"(1) the amendment or modification of the terms and provisions
of this agreement;"
"(2) salary or minimum wage rates as set forth herein;"
"(3) matters not covered by this agreement; and"
"(4) any dispute arising out of any question pertaining to the
renewal or extension of this agreement."
Other provisions of the agreement "which expressly deny
arbitration to specific events" are §§ 4.2, 4.4, 6.4.1, 14.4,
16.9.
[
Footnote 7]
See Art. VI: Seniority; Art. XV: Welfare Security
Benefits; Art. VII: Discharges and Lay-offs; Art. XXIII: Severance
Pay; Art. XII: Vacations.
[
Footnote 8]
Wiley apparently concedes the possibility that a right to
severance pay might accrue before the expiration of the contract,
but be payable "at some future date." Brief, p. 38.
[
Footnote 9]
Wiley apparently so construes at least part of one of the
Union's claims.
See note
8 supra.
[
Footnote 10]
All of these provisions are contained in § 16.0 of the
Interscience agreement.
[
Footnote 11]
In addition to the failure to follow the procedures of Steps 1
and 2, Wiley objects to the Union's asserted failure to comply with
§ 16.6, which provides:
"Notice of any grievance must be filed with the Employer and
with the Union Shop Steward within four (4) weeks after its
occurrence or latest existence. The failure by either party to file
the grievance within this time limitation shall be construed and be
deemed to be an abandonment of the grievance."
[
Footnote 12]
The Courts of Appeals have disagreed on this issue. The first
and Seventh Circuits have held that the courts determine whether
procedural conditions to arbitration have been met.
Boston
Mutual Life Ins. Co. v. Insurance Agents' Int'l Union, 258
F.2d 516;
Brass and Copper Workers Federal Labor Union No.
19322 A.F.L.-C.I.O. v. American Brass Co., 272 F.2d 849. The
Third, Fifth, and Sixth Circuits agree with the Second Circuit's
decision in this case that the question of "procedural
arbitrability" is for the arbitrator.
Radio Corporation of
America v. Association of Professional Engineering Personnel,
291 F.2d 105;
Deaton Truck Line, Inc. v. Local Union 612,
314 F.2d 418;
Local 748, of the International Union of
Electrical, Radio and Machine Workers A.F.L.-C.I.O. v. Jefferson
City Cabinet Co., 314 F.2d 192.