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August 7, 1989


The opinion of the court was delivered by: RODRIGUEZ

 This matter comes before the court on plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant has filed a crossmotion for summary judgment. The court heard oral argument on July 14, 1989 and required defendant to file an affidavit to clarify an ambiguity with respect to the subject matter of the grievance. The hearing was continued without date. Defendant filed an affidavit on July 24, 1989. Upon review of the filed affidavit and for the reasons set forth below, the court will grant summary judgment for defendant.


 Defendant, Teamsters Local Union No. 676 (hereinafter Union), is the exclusive bargaining representative of the Automobile Mechanics, Automobile Mechanic Helpers, Truck Drivers and Truck Driver Helpers at General Electric's Camden plant. On August 22, 1988, General Electric's predecessor, RCA entered into a collective bargaining agreement with Local 676 which continues in effect until August 31, 1991. On November 28, 1988, the union filed a grievance which stated: "For the past three or four years, the company has refused to replace drivers who, for a number of reasons, have left the company. The Union is requesting that laid-off drivers with seniority recall rights be recalled back to work." Plaintiff General Electric Company (hereinafter GE) filed a complaint on January 25, 1989 seeking a declaratory judgment that the grievance was not arbitrable. Plaintiff then filed an amended complaint on February 10, 1989 and moved for a preliminary injunction to enjoin arbitration pending resolution of the case. Following oral argument on April 7, 1989 the court denied plaintiff's motion for injunctive relief. The parties then agreed to resolve the issue through crossmotions for summary judgment.


 Plaintiff argues that the issue submitted to the American Arbitration Association is not arbitrable for several reasons. First, plaintiff argues that the union has not identified a specific provision of the collective bargaining agreement which General Electric allegedly violated. Plaintiff contends that a review of various contract provisions demonstrates that GE never contracted to arbitrate the issue of replacement of drivers who left GE's employment. *fn1" Specifically, plaintiff argues that the grievance usurps the exclusive management right of GE to determine how many employees it will employ in its work force and requires GE to fill job vacancies with employees which its level of business no longer needs. Plaintiff submits an affidavit of Alan E. Matt, Manager of Human Resources for GE's Camden facility, as support that the company never contracted to arbitrate the instant dispute.

 Plaintiff next argues that the narrow arbitration clause as well as other evidence distinguishes this case from E.M. Diagnostic Systems, Inc. v. Local 169, 812 F.2d 91 (3d Cir. 1987). In E.M. Diagnostic, the arbitration clause provided for arbitration of "any dispute arising out of a claimed violation of the agreement." Id. at 92. To the contrary, GE's arbitration clause provides for arbitration only of disputes "with respect to the interpretation or application of any provision of this Agreement." Agreement at 8.01. Plaintiff argues that the language of its arbitration clause mirrors the clause discussed in Boeing Company v. International Union U.A.W., 231 F. Supp. 930 (E.D. Pa. 1964), aff'd 349 F.2d 412 (3d Cir. 1965) *fn2" as opposed to the clause in E.M. Diagnostic. Thus, plaintiff argues that as in Boeing, there is no provision, specific or otherwise, which relates to the matter in dispute.

 GE further argues that under E.M. Diagnostic, the court must review not only the language of the arbitration clause but also must determine whether the language of the contract expressly excludes the dispute from arbitration and whether there is any other "forceful evidence" excluding the dispute from arbitration. GE then asserts that the bargaining history of the parties and the language of the General Agreement constitutes the equivalent of an express exclusion of the present dispute from arbitration. In addition, GE contends that unlike E.M. Diagnostic, which involved a dispute over the subcontracting of alleged bargaining-unit work, this dispute involves the size of GE's workforce and thus is clearly within the exclusive management rights clause.

 Finally, GE asserts that if the present dispute were found to be arbitrable, the arbitrator would have to establish contractual provisions for job replacement and thus would be creating a new term and condition of employment contrary to the general agreement. *fn3"

 In opposition to GE's motion and in support of its motion, the Union first cites provisions of the agreement which it claims relate to the filed grievance. Specifically, the Union cites paragraph 11.01 captioned RULES APPLICABLE TO LAYOFFS AND REHIRING, and paragraph 15.07 captioned LEASED OR HIRED EQUIPMENT. *fn4" The Union next argues that there is no showing that the parties intended the exclusive rights paragraph 2.04 to encompass recall rights of employees with seniority. In fact, the Union argues that provisions relating to layoffs and rehiring and leased or hired equipment indicate that the parties intended otherwise.

 Next the Union asserts that GE has argued the merits of the grievance as opposed to the narrow issue of whether the dispute is arbitrable. The Union argues that the case falls under the zone of interest test enunciated in E.M. Diagnostic.5 Finally, the Union asserts that there is no express provision limiting arbitration on this issue and that the bargaining history does not provide any indication of whether the parties' minds ever met on the issue of excluding subcontracting grievances from arbitration.


 The Third Circuit recently summarized the principles governing arbitration delineated by the Supreme Court in the Steelworkers Trilogy6 and reiterated in AT & T Technologies, Inc., v. Communications Workers of America, 475 U.S. 643, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986):

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