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September 30, 1965

James McGuire, as President, et al., of Coal, Gasoline, Fuel Oil Teamsters, Chauffeurs, Oil Burner Installation Maintenance, Servicemen and Helpers of New York City and Vicinity, Nassau and Suffolk Counties, New York, New York Local, Union 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Plaintiffs
Humble Oil & Refining Company, Defendant

Tenney, District Judge.

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge:

Plaintiffs move herein, in their official capacities, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, "for the relief requested in the complaint."

 In the complaint as drawn, plaintiffs not only request an order directing defendant to arbitrate certain grievances arising under named collective bargaining agreements, but also request that defendant be restrained from pursuing any activities contrary to the provisions of the respective agreements; in effect, a request for specific performance of the collective bargaining agreement provisions. In the view taken of the instant case, defendant will be directed to proceed to arbitration. However, as a necessary corollary of that order is the fact that the continued vitality, if any, of the provisions in question is a matter for the arbitrator to decide. United Steelworkers of America v. Reliance Universal, Inc., 335 F.2d 891, 895 (3d Cir. 1964). Accordingly, the "other" relief requested will be denied, and, as defendant suggests, the within motion will be treated as one for partial summary judgment, pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.

 The factual setting of the instant controversy is not disputed and is fully set forth in an opinion by Judge Sugarman, dated February 17, 1965 (opinion No. 30887). The facts are similarly set forth in a decision by the National Labor Relations Board, Humble Oil & Ref. Co., 153 NLRB No. 111 (July 8, 1965). Therefore, for background, the following is sufficient:

 On August 7, 1964, defendant Humble Oil & Refining Company (hereinafter referred to as "Humble") purchased the fuel oil delivery service and installation business of Weber & Quinn and its subsidiary, Burdi Fuel Oil Co., Inc. (hereinafter collectively referred to as "Weber & Quinn"), both of whom had collective bargaining contracts, effective January 1, 1964, through December 15, 1965, with Local 553 of the Teamsters Union (hereinafter referred to as "Local 553" or as "plaintiff"). At that time, plaintiff was recognized under the "Fuel Oil Contracts" with each company as the bargaining representative for the chauffeurs employed and, under the "Servicemen's Contract", as representative for the service, installation men and installation men's helpers. Both prior and subsequent to the purchase, plaintiff made known to defendant its status and requested defendant to acknowledge its obligations under the aforesaid contracts, which defendant refused to do.

 In September of 1964, plaintiff, pursuant to the identical arbitration clause in the respective contracts, sought to arbitrate a number of disputes arising out of some 26 categories of alleged refusals by defendant to accede to the demands of plaintiff, in violation of the contracts. *fn1" Defendant has refused to arbitrate these disputes, contending that the collective bargaining agreements are not binding upon it.

 Defendant, a Delaware corporation, is engaged in the production, refining and distribution of petroleum products throughout the United States. Since 1937 its distribution employees have been represented for collective bargaining purposes by the Industrial Employees Association, Inc. (hereinafter referred to as the "Association"), with whom defendant presently has a contract expiring April 30, 1966.

 Weber & Quinn employed 14 mechanics and 10 drivers. As of this date it appears that 9 of these mechanics (8 burner service mechanics and 1 truck mechanic) and 4 truck drivers have been employed by Humble. Other employees of Weber & Quinn either have refused the offered employment or failed to pass defendant's physical examination.

 The dispute between the parties relates to the legal consequences flowing from the above-cited facts.

 The defendant does not appear to seriously question the arbitrability of the issues sought to be arbitrated herein, qua arbitrable issues in vacuo, but asserts that in the factual setting here presented it is not bound by the collective bargaining agreements entered into between Local 553 and Weber & Quinn, and is equally not bound by the arbitration clause contained therein, nor required to arbitrate any disputes arising therefrom.

 Accordingly, the issue squarely presented is whether Humble is bound by the collective bargaining agreements entered into between plaintiff and Weber & Quinn, or at least the arbitration clause contained therein, the issue of how much of the contract is binding being left to the arbitrator.

 In support of its action to compel defendant to arbitrate under a collective bargaining agreement it concededly never signed or assumed, plaintiff relies, inter alia, on John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909 (1964) and two decisions following it, United Steelworkers of America v. Reliance Universal, Inc., 335 F.2d 891 (3d Cir. 1964) and Wackenhut Corp. v. International Union United Plant Guard Workers, 332 F.2d 954 (9th Cir. 1964).

 In opposition, defendant contends that Wiley is inapplicable by reason of the lack of any substantial continuity of identity between Weber & Quinn and itself, and that, as distinguished from Wiley, in the instant case the successor company has a union representing its employees and to arbitrate with Local 553 would be to dilute the status of the Association as collective bargaining representative of Humble employees. In addition, it argues that by reason of the National Labor Relations Board's decision in the unit clarification proceeding hereinafter discussed Local 553 no longer represents the prior Weber & Quinn employees and therefore lacks any standing to advance these grievances.

 Arbitration is, of course, a matter of contract and a party cannot be required to submit to arbitration any dispute whith it has not agreed to submit. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960). Whether or not the company is bound to arbitrate, as well as what issue it must arbitrate, are matters to be determined by the Court on the basis of the contract entered into by the parties. Atkinson v. Sinclair Ref. Co., 370 U.S. 238, 241, 8 L. Ed. 2d 462, 82 S. Ct. 1318 (1962).

 Similarly, "[the] duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all." Wiley, supra, 376 U.S. at 547.

 Accordingly, the initial task of this Court is to determine whether the duty to arbitrate has survived the purchase and has devolved upon Humble under the prior executed collective bargaining agreements. In approaching this question I leave to the side for the moment the presence of another union, the Association, a factor not presented in Wiley.

 In Wiley, Interscience Publishers had entered into a collective bargaining agreement with a union representing some of its employees. During the life of the contract, Interscience was merged into Wiley, a much larger publishing house, most of Interscience's employees being retained by the successor firm. The union was unable to agree with Interscience, and later with Wiley, as to the effect of the merger on the collective bargaining agreement. The union asserted that under the agreement its members had certain "vested rights" regarding seniority, severance pay and pension fund payments. Wiley would not recognize the union as a bargaining agent and declared that the agreement had terminated with the merger. The union demanded arbitration of its grievances and, when Wiley refused, sued to compel arbitration.

 Wiley's position in opposing the union demand, as described by one commentator, "was quite simple. It had not agreed to either the contract or the obligation to arbitrate contained therein and the union plainly was not the representative of a majority of its employees. That position . . . seemed well founded on the consistent rulings of the NLRB and the federal courts that a collective bargaining agreement does not survive either a change of representatives or as in this case, a basic change in the identity of the employer absent some affirmative adoption of the old agreement by the new party. [Citing: NLRB v. Armato, 199 F.2d 800 (7th Cir. 1952); International Longshoremen's [& Warehousemen's] Union v. Juneau Spruce Corp., 13 Alaska 291, 189 F.2d 177 (9th Cir. 1951), aff'd, 342 U.S. 237, [96 L. Ed. 275, 72 S. Ct. 235] (1952); American Seating Co., 106 NLRB 250 (1953); Cruse Motors, Inc., 105 NLRB 242 (1953); Stonewall Cotton Mills, 80 NLRB 325 (1948); Herman Lowenstein, Inc. 75 NLRB 377 (1947)." Christensen, Labor Relations Law, 1964 Ann. Surv. American Law, 155, 156-57.

 The Supreme Court, referring to the strong preference for arbitral settlement of industrial disputes, held 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 ...

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