grievances be heard jointly by one arbitrator and (2) whether that question must be determined by this Court or by an arbitrator.
The Court is not concerned with, and therefore may not consider, the merits, if any, of any of the grievances. Whether the grievances should be heard singly and separately or jointly and collectively is a procedural matter for which no provision is to be found in the Agreement. Careful scrutiny of the provisions of the Agreement fails to disclose any provision thereof forbidding joint arbitration of several grievances.
The law applicable to the issue presented by the instant motion is that which has been fashioned by the Federal courts to govern the situation presented. Association of Westinghouse Salaried Employees, etc. v. Westinghouse Electric Corp., 3 Cir. 1960, 283 F.2d 93, citing Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972.
In the present case, as in Westinghouse, supra, and in United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409, the interpretation of the collective bargaining agreement, which the plaintiff seeks to have enforced, is a problem which must be resolved by the arbitrator and not by this Court. The present case is peculiarly one for the resolution of an arbitrator, because the questions raised by the parties in this litigation have to do exclusively with the procedure to be followed before the arbitrator. Given the contractual requirement that a right to arbitration is available in each of the three separate grievances seeking adjustment, the absence of a provision in the collective bargaining agreement, either authorizing or proscribing a joinder of grievances for arbitration, necessarily renders the determination of the propriety of such joinder a matter for decision by the arbitrator who may be called upon to hear and resolve the merits of the grievances.
In United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 568, 80 S. Ct. 1343, 1346, 4 L. Ed. 2d 1403, it is held that the function of the Court is '* * * confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator's judgment, when it was his judgment and all that it connotes that was bargained for.'
The contract in the present case does not prescribe the identity or qualifications of an arbitrator to whom a grievance must be submitted as the third step in the procedure set up. The Agreement merly requires that 'the grievance shall be processed for arbitration and shall be submitted as soon as possible to an impartial arbitrator * * *.'
The question posed here is similar to that which would be presented to this Court upon the application of a party to consolidate two cases for trial under the provisions of Rule 42(a) of the Federal Rules of Civil Procedure. The criterion for consolidation under that Rule is the involvement in the cases of a common question of law or fact. Whether such consolidation should be allowed is a question for the Court, in its sound discretion, to determine. See Kelly v. Greer, 3 Cir. 1961, 295 F.2d 18. It is obvious that all three of the grievances referred to in the complaint in this action involve similar questions of fact and possibly also of law. The Court will take judicial notice that a joint hearing and determination by an arbitrator with respect to the three grievances will involve less delay and less expense than the aggregate of both involved in separate hearings of each. The convenience of the parties and the expedition of adjustment, looking to the early achievement of employment peace, are further considerations which would justify an arbitrator in determining that the three grievances should be heard together rather than separately. This Court may not and will not deprive the arbitrator of the opportunity and obligation to determine that question. See Radio Corporation of America v. Association of Professional Engineering Personnel, 3 Cir. 1961, 291 F.2d 105, cert. den. 1961, 368 U.S. 898, 82 S. Ct. 174, 7 L. Ed. 2d 93; International Telephone & Telegraph Corp. v. Local 400, etc., 3 Cir. 1961, 286 F.2d 329.
The Plaintiff is entitled to judgment requiring the defendant to submit to one arbitrator, pursuant to Article 23 of the Agreement, the following questions: (1) should the three grievances be arbitrated separately or jointly; and (2) the merits of each grievance.
Present an appropriate order.
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