collective bargaining agreement. There was, therefore, a dispute 'as to the meaning and application of the provisions of this Agreement' which the parties had agreed would be determined by arbitration.' 363 U.S. at 584, 585, 80 S. Ct. at 1354.
Commenting on Warrior, supra, in his concurring opinion in American Mfg., supra, Justice Brennan said:
'On the basis of inconclusive evidence, those courts (lower) found that Warrior was in no way limited by any implied covenants of good faith and fair dealing from contracting out as it pleased -- which would necessarily mean that Warrior was free completely to destroy the collective bargaining agreement by contracting out all the work.' 363 U.S. at 572, 80 S. Ct. at 1365.
American Mfg., supra, involved the discharge of an employee and a provision in the labor agreement which reserved to management power to suspend or discharge any employee 'for cause.' There was a broad arbitration clause. The employer refused to arbitrate and the district court upheld its refusal. The Supreme Court reversed stating:
'The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It 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.' 363 U.S. at 567, 568, 80 S. Ct. at 1346. 'The union claimed in this case that the company had violated a specific provision of the contract. The company took the position that it had not violated that clause. There was, therefore, a dispute between the parties as to 'the meaning, interpretation and application' of the collective bargaining agreement. Arbitration should have been ordered.' 363 U.S. at 569, 80 S. Ct. at 1347. (Emphasis supplied.)
The Wiley case, supra, involved a change of employers as the result of a merger and the question presented was whether the collective bargaining agreement survived the merger imposing upon the successor of the merged employer the duty to arbitrate grievances in accordance with a collective bargaining agreement to which it had not been a party. There the Court stated:
'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.' 376 U.S. at 548, 84 S. Ct. at 914.
The Sinclair Refining case, supra, involved an action commenced in the district court by the employer pursuant to § 301 of the Act seeking judgment for damages against an international and local union on allegations of breach on the part of the unions of a no-strike provision in the collective bargaining agreement. The unions contended that the subject matter of this litigation was referable to arbitration under the collective bargaining agreement. The Court held that the employer was not bound to submit to arbitration stating:
'There is not a word in the grievance and arbitration article providing for the submission of grievances by the company. Instead, there is the express, flat limitation that arbitration boards should consider only employee grievances. Furthermore, the article expressly provides that arbitration may be invoked only at the option of the union. At no place in the contract does the union agree to arbitrate at the behest of the company. The company is to take its claims elsewhere, which it has now done.' 370 U.S. at 243, 82 S. Ct. at 1322.
It must be conceded that there is language in the Supreme Court opinions cited which, considered out of context with the factual background, lends support to defendant's argument. It is also noted that none of these cases, and none which independent research has uncovered, are in point of fact precisely analogous to the situation here. But one thing is clear. The Court in the first instance must interpret the collective bargaining agreement to determine whether there is an arbitrable issue. Interpretation by the Court touching upon the merits of the dispute is forbidden. Passing upon the merits is the exclusive function of the arbitrator and, in the exercise of this function, it may be necessary in certain cases for him to consider whether the alleged arbitrable issue is frivolous. In this area there may be overlapping of the function of the Court and the function of the arbitrator. For further discussion of this subject see Smith & Jones, The Supreme Court and Labor Dispute Arbitration: The Emerging Federal Law, 63 Mich.L.Rev. 751 (1965).
The mere fact of the existence of an arbitration clause like the one here does not make every alleged grievance arbitrable. The agreement must embrace the subject matter of the alleged grievance so that it would appear that the arbitrator could make an award: '* * * his award is legitimate only so long as it draws its essence from the collective bargaining agreement.' United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 1361, 4 L. Ed. 2d 1424 (1960); see also, H. K. Porter Co. v. United Saw, File & Steel Products Workers, 333 F.2d 596, 600 (3rd Cir. 1964).
There is no substantive provision in this collective bargaining agreement which has been brought to the Court's attention that would cover the subject of severance pay. Defendant contends that evidence it would be able to produce before the arbitrator would disclose an implied covenant to pay wages to employees after plant closure prior to expiration of the term of the collective bargaining agreement. Plaintiff denies the existence of any such evidence and thereby creates a genuine issue of material fact which compels the Court to deny defendant's motion for summary judgment. An appropriate order in conformity herewith will be submitted.