the collective bargaining agreement, and its ready remedy thereunder, the Union thereupon filed the complaint herein. The Company promptly thereafter obtained from this Court an order to show cause, under the terms of the Federal Arbitration Act, Section 3, supra, staying the trial of this action pending arbitration to be had in accordance with the terms of the collective bargaining agreement.
Of course, the ultimate issue between the parties is the right of the Company to issue this new job code classification, in apparent accord with the arbitral award. But the sole issue now before this Court is whether the above issue on the merits is to be decided now by this Court, or by the grievance and arbitration procedure provided in the collective bargaining agreement. In paragraph 116 of this contract are the provisions for the classification of jobs. These require that if the Union disagrees with the Company's classification, same will constitute a 'grievance.' The grievance procedure to be followed by the parties, under such circumstances, is set forth in paragraphs 29 through 39, the last step being arbitration. Paragraph 29 provides:
'All grievances and other disputes arising out of the terms of this agreement shall be dealt with in accordance with the following grievance procedure: * * *'
Clearly this new code set up by the Company under the arbitral award constitutes as to the Union a grievance, as shown by its definite opposition thereto. Same is also obviously a 'dispute arising out of the terms of this agreement.' Thus the parties have agreed to adjust this grievance by the grievance procedure set up under their collective bargaining agreement, with arbitration as its last step.
However, plaintiff Union claims, for several reasons, that this normal procedure is here inapplicable. It contends, first, that under the common-law rule as to arbitration, the contract as to arbitration must expressly make arbitration a condition precedent to a court action, in order to prevent the court from first deciding the question, despite the agreement of the parties to arbitrate. While this was the old State law in New Jersey, Anderson v. Odd Fellows, 86 N.J.L. 271, 90 A. 1007 (E. & A. 1914); Sonotone Corp. v. Hayes, 4 N.J.Super. 326, 67 A.2d 184 (App.Div.1949), cf. Rosenthal v. Berman, 14 N.J.Super, 348, 82 A.2d 455 (App.Div.1951), this New Jersey law is here inapplicable. This is so not only by agreement of the parties, as seen above, but on the merits. If we consider the proceedings here to be one under Section 301(a) of the Taft-Hartley Act, 29 U.S.C.A. § 185(a), to which the complaint first alludes, the words of our highest court in Lincoln Mills, supra, are controlling. Here the Court said (353 U.S. 488, 77 S. Ct. 914):
'Other courts -- the overwhelming number of them -- hold that § 301(a) is more than jurisdictional (citing cases) -- that it authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements and includes within that federal law specific performance of promises to arbitrate grievances under collective bargaining agreements. Perhaps the leading decision representing that point of view is the one rendered by Judge Wyzanski in Textile Workers Union of America v. American Thread Co., D.C., 113 F.Supp. 137. That is our construction of § 301(a), which means that the agreement to arbitrate grievance disputes, contained in this collective bargaining agreement, should be specifically enforced.
'* * * Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.
'* * * It seems, therefore, clear to us that Congress adopted a policy which placed sanctions behind agreements to arbitrate grievance disputes (citing cases), by implication rejecting the common-law rule, discussed in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S. Ct. 274, 68 L. Ed. 582, against enforcement of executory agreements to arbitrate (citing cases). We would undercut the Act and defeat its policy if we read § 301 narrowly as only conferring jurisdiction over labor organizations.
'The question then is, what is the substantive law to be applied in suits under § 301(a)? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws.'
This 'common-law rule' discussed in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S. Ct. 274, 276, 68 L. Ed. 582, against enforcement of 'executory agreements to arbitrate' is the very common-law rule on which the plaintiff Union here relies. Hence the provisions of the Federal Arbitration Act apply. This Act itself provides that 'the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement * * *'. Moreover, many other cases than Lincoln Mills, supra, join with our highest court in decrying the old reluctance of the courts to enforce arbitral agreements, and call attention to both a judicial and 'a congressional policy to encourage and enforce labor arbitration in industries affecting commerce.' See cases cited by Lincoln Mills, supra, 353 U.S. at page 460, 77 S. Ct. at page 920. Thus, this first objection by the plaintiff Union is ill-founded.
The plaintiff Union further contends that it allowed the time to pass during which, under the contract, a grievance procedure should have been pursued, so that it cannot now ask that the dispute be arbitrated. This is indeed a surprising contention. It amounts to saying that one, who has failed to avail himself of a remedy, can now obtain a different remedy, which he could not have obtained, had he acted as he should. To agree with such a contention would simply nullify the Federal doctrine that arbitration, when agreed upon, should be first resorted to. According to such a contention, all a party need do, would be to sleep on his rights, and then when he wakes up, ask a remedy, to which he would not have been entitled earlier. See River Brand Rice Mills v. Latrobe Brewing Co., 1953, 305 N.Y. 36, 110 N.E.2d 545. This claim is insubstantial.
The plaintiff Union further claims that the Company is in default, for not having insisted on arbitration itself, when it found that the plaintiff Union disputed the new code. The plaintiff Union there refers to the provisions of the Federal Arbitration Act, 9 U.S.C.A. 3, that the right to a stay such as this may be had 'providing the applicant for the stay is not in default in proceeding with such arbitration.' But the above facts show that the setting up of the code by the Company obviously did not create a grievance so far as the Company was concerned, but a grievance insofar as the plaintiff Union was concerned. It is the plaintiff Union, therefore, the aggrieved party, who should have instigated the grievance procedure steps, which terminated in arbitration. Under the Union's argument, it is the defendant in a law suit who should sue plaintiff. Furthermore, in fact, as seen above, the Company was always willing to arbitrate, and repeatedly asked the Union to do so, but it was the Union who refused to proceed. As stated in Council of Western Electric Technical Employees National v. Western Electric, 2 Cir., 1956, 238 F.2d 892; quoting from Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 2 Cir., 1942, 126 F.2d 978, 989, a person is in default in proceeding with arbitration only if he 'when requested, has refused to go to arbitration, or * * * has refused to proceed with the hearing.' Thus it is the Union, not the Company, which is in default. So here the Company, 'the applicant for the stay is not in default.'
Therefore, since it clearly appears on the Company's petition 'for a stay of the trial of this action pending arbitration', that the setting up of the new code by the Company, in its obvious attempt to implement the arbitral award, may constitute a grievance as to the Union, and that this grievance, under the collective bargaining agreement between the parties, calls in the first place for the adoption of grievance procedure and arbitration previous to suit, and further that the Company is not in default, the stay of the Union's complaint herein will be granted pending arbitration.
The Court, of course, notes the provision in the pretrial order that
'The question to be decided by the Court primarily is whether the Court or an arbitrator is to pass on the legality of the new Code 4142 sought to be set up by Curtiss-Wright after the award of the arbitrator, Gellhorn. Thus, if the decision of this question is that this power lies in the Court, it will proceed to decide the legality of such new code. If, on the contrary, the decision is that same is a matter for arbitration, further proceedings herein will be stayed pending such arbitration, but Defendant Curtiss-Wright does not itself desire to proceed of its own motion with such arbitration or concede that arbitration is available to the plaintiff any longer.'
But, while the Company may not itself desire to proceed with arbitration, or concede that same is available to the plaintiff, the Company's petition for a stay concludes with the express prayer 'that the trial of this action be stayed pending arbitration', as the pretrial order itself states repeatedly. Of course, a party cannot ask the Court to engage in a moot controversy -- ask for a stay pending arbitration, when it contends that arbitration is unavailable. Nor does the Company's brief contend that arbitration is unavailable. In fact, it says: 'The Company has elected to have the matter determined by arbitration.' Furthermore, the jurisdiction of this Court is here invoked to determine if 'the issue involved in such suit or proceeding is referable to arbitration under such an agreement.' The statute provides further that if such be the case, the Court 'shall stay the trial of the action until such arbitration has been had * * *'. (Italics this Court's.) Since it has already been found that the issue involved herein is referable to arbitration, the Union's grievance as to the setting up of the new code by the Company should be promptly referred to arbitration, as the Federal Arbitration Act requires.
The facts herein stated and the conclusions of law herein expressed shall be considered the findings of fact and the conclusions of law required by F.R.Civ. P. 52, 28 U.S.C.A.
An order may be entered accordingly.