The opinion of the court was delivered by: NEILL
This action is before this Court on plaintiff employee's petition to enforce an arbitration award under a collective bargaining agreement. Each party seeks summary judgment. The applicable portions of the collective bargaining agreement are set forth in the appendix hereto.
The facts giving rise to the arbitration are not in dispute. Plaintiff was laid off by defendant employer in a reduction of force program. Plaintiff contends her layoff was contrary to the seniority provisions of the agreement (Section 9) and that the "transfer out of classification" violated Sections 3, 4 and 5(b) thereof. The arbitrator ruled against plaintiff on her grievance as to seniority but held with her on the "transfer" grievance.
Defendant asserts that it agreed to arbitrate only the Section 9 (seniority) grievance and that the arbitrator violated his duty and exceeded his authority in considering plaintiff's grievance under Sections 3, 4 and 5(b).
Arbitration was commenced pursuant to a letter from a union official to the selected arbitrator wherein the arbitrator was advised that:
" [defendant] and [plaintiff] request your service as an arbitrator in a dispute over the layoff of Mary Hersey, the grievant. The Guild has charged that in reducing the work force in January, 1973, with respect to Mrs. Hersey, the company violated Section 9 of the contract by retaining an employee junior to her in classification. . . . the company has denied there was a violation of Section 9. . . ."
At the arbitration hearing the union, over objection of defendant, submitted evidence on the "transfer out of unit" grievance. The arbitrator received such evidence under a reservation as to the scope of the arbitration.
In its post-hearing brief defendant partially acceded to the arbitrator's earlier suggestion that he be permitted to consider and rule on all grievances by stating in the brief:
". . . with the understanding the arbitrator has only these four issues before him, and that he treat them as though they had been referred to him in accordance with Section 7, and that the arbitrator's jurisdiction to hear and determine these questions is to be found only in the express language of Section 7, . . . the company will withdraw its objection . . . and agrees the issues are before the arbitrator in accordance with the procedure set forth in Section 7."
The arbitrator reviewed the history of the negotiation leading to the collective bargaining agreement and ruled that he was authorized to consider all the grievances. Defendant contends that by so doing he manifested an infidelity to his duties.
The starting point for deciding arbitration questions is in the "steelworkers trilogy" of United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960), United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960), and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960). In these cases the Supreme Court set out certain guidelines for courts' involvement in labor arbitration matters under federal law.
The scope of review of an arbitrator's award is greater than in a suit to compel arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra. A court may review the question of arbitrability and it is not necessary that a party refuse to arbitrate all issues if an objection to the arbitrability of some claims is properly preserved throughout the proceedings. Local 719, American Bakery and Confectionery Workers of America, AFL-CIO v. National Biscuit Co., 378 F.2d 918 (3d Cir. 1967).