The opinion of the court was delivered by: Parsons, District Judge.
I have before me plaintiff's motion for the entry of an order
requiring defendant to select an arbitrator and submit a dispute
between the parties to arbitration.
On September 23, 1963, this District Court entered a judgment
order pursuant to its memorandum opinion (reported at 221 F. Supp. 461)
directing: "that defendant refer to arbitration its
differences with plaintiff concerning the interpretation of
application of their collective bargaining agreement dated
October 1, 1960, in accordance with the procedure outlined in
The Court of Appeals for the Seventh Circuit reversed the
decision of the District Court (reported at 333 F.2d 761). On
petition for writ of certiorari, the United States Supreme Court
in a Per Curiam opinion (reported at 379 U.S. 357, 85 S.Ct. 441,
13 L.Ed.2d 541) stated: "The petition for a writ of certiorari is
granted and the judgment is reversed. United Steelworkers of
America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct.
1343, 4 L.Ed.2d 1403, and John Wiley & Sones, Inc. v. Livingston,
376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898."
In its judgment order, however, the Supreme Court remanded the
case to the District Court "for further proceedings in conformity
with (its) opinion * * *."
The parties presently differ over the nature of the order which
the District Court should now enter pursuant to the mandate of
the United States Supreme Court.
Plaintiff has submitted a proposed draft order which reads:
It is plaintiff's position that the question of arbitrability,
i.e., whether the dispute is, in fact, arbitrable, is a matter
for the Court, not the arbitrator, to decide; that this Court has
determined that the dispute involved in this case is arbitrable,
and that the arbitrator's sole function is to arbitrate the
dispute, and not to determine at the outset whether the dispute
Defendant, on the other hand, contends that the parties first
must submit to arbitration the question of whether an arbitrable
issue is presented in this case, and only if that question is
answered in the affirmative by the arbitrator should the parties
proceed to arbitrate the merits of the dispute. And it is true
that in my memorandum opinion of September 23, 1963, I stated
(221 F. Supp. 461, at 465):
"[a]ccordingly, it is the opinion of the Court that
the `difference' between the plaintiffs and the
defendant concerning the hiring practices at the
French Lick Plant arose from the interpretation and
application of Articles III, VIII, and XI of the
collective bargaining agreement and the same is
arbitrable. It must be understood that this last
determination and the reasoning in support thereof is
mere dicta in the event this cause proceeds to
arbitration immediately hereafter, for it is the
opinion of the Court that the question of whether
this particular difference is arbitrable also is
subject to arbitration."
The Court of Appeals stated (333 F.2d 761, at 765):
"The district court determined that the question of
arbitrability was for the arbitrator to decide. In so
doing, it erred. Wiley v. Livingston, supra; Atkinson
v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct.
1318, 8 L.Ed.2d 462 (1962); Brass & Copper Workers
Federal Labor Union No. 19322, A.F.L.-C.I.O. v.
American Brass Co., 7 Cir., 272 F.2d 849, 853 (1959);
cert. denied, 363 U.S. 845, 80 S.Ct. 1609, 4 L.Ed.2d
Defendant contends that this particular holding of the Seventh
Circuit also was reversed by the Per Curiam decision of the
Supreme Court. Defendant is mistaken.
It is clear from plaintiff Union's petition for writ of
certiorari that the actual question presented to the ...