The opinion of the court was delivered by: COOPER
This is an action by plaintiff Ice Cream Drivers and Employees Union Local 757 (hereinafter "Union") to compel defendant Borden, Inc. (hereinafter "Borden") to arbitrate the issues of whether or not Borden's closing on October 3, 1969 of its Fifth Avenue Plant, and thereafter its alleged importation into the Metropolitan Area of ice cream manufactured outside of the Metropolitan Area, violated sections 2(e)
respectively of the collectively-bargained Ice Cream Industry Area-Wide Agreement (hereinafter "Agreement") entered into by the parties on May 1, 1968 effective until April 30, 1971.
Plaintiff moves for summary judgment granting the relief requested pursuant to Rule 56, F.R. Civ. P. and for dismissal of defendant's counterclaim which seeks a declaratory judgment based on the premise that by reason of the Union's alleged illegal strike it has forfeited and waived its right to arbitration, or at least has no such right while the strike continues. Defendant resists these motions contending genuine issues of material facts are present.
The relevant facts viewed in the light most favorable to defendant follow. On August 25, 1969 representatives of the Union and Borden met to discuss the proposed closing of Borden's only manufacturing facility in the Local 757 Area, the Fifth Avenue Plant. As a consequence of the above-mentioned contractual restrictions, sections 2(d) and 2(e), Borden, in addition to terminating production, decided it must discontinue distribution in the 757 Area as well. The Union orally and by telegram dated September 2, 1969 notified Borden of its position that such proposed action would be violative of the contractual commitment " . . . to continue to manufacture within the area of Local 757."
Borden notified its employees covered by this 757 Area agreement that the last day of production would be on Friday, October 3, 1969, and that the remaining inventory would be distributed until dissipated at which point Borden would go out of the ice cream business in their area. On October 1, 1969 Borden by telegram to the Union demanded immediate arbitration of "the company's right to go out of business" stating that "it is necessary that this issue be finally resolved prior to our plant closing on October 3" and promising cooperation "to expedite the arbitration to resolve this issue within the time limits." The Union responded by telegram that day suggesting they meet to discuss issues which may be appropriate for arbitration and procedures therefor.
Such meetings between the parties were held on October 1, 2 and 3. Borden contends that at such negotiations the Union while professing willingness to arbitrate would not agree to expedited arbitration. On October 3, Borden closed the Fifth Avenue Plant. Immediately thereafter that same day the Union began picketing this plant and other Borden facilities. On October 6, the Union allegedly struck all Borden facilities throughout the 757 area and northern New Jersey; the strike and picketing still continue.
On October 13, 1969 the Union by letter to Borden requested arbitration as to whether the Company violated § 2(e) of the Contract by closing its plant. Borden replied by letter dated October 17 that it would proceed toward arbitration "as soon as the illegal work stoppage of 757, IBT ceases and the pickets are removed from our premises." On October 24, 1969 the Union wrote the Chairman of the New York State Mediations Board requesting arbitration as to whether the Company violated sections 2(d) and (e) of the Contract. Responding to this request, Borden wrote the Board on November 4, 1969 reiterating its position that no arbitration proceeding should be processed until the strike and picketing ceased, and that without prejudice to its position in that regard it was selecting three names from the list of arbitrators. The Mediation Board, in accordance with its procedures and after receiving the selections of both parties, designated Mr. Burton Turkus as Arbitrator. Borden refused to proceed. On November 13, 1969 this action was commenced by the Union.
The Agreement contains a broad, all-inclusive arbitration clause:
"8. Any and all disputes and controversies arising under or in connection with the terms or provisions of this Agreement, or in connection with or relating to the application or interpretation of any of the terms or provisions hereof, or in respect of anything not herein expressly provided but germane to the subject matter of this Agreement which the representative of the Union and the Company have been unable to adjust, shall be submitted to arbitration, at the request of either party. . . ."
The arbitration procedures herein contained shall be the exclusive remedy for the enforcement of this Agreement and for adjudication of any grievances arising hereunder, and such arbitration procedures may be instituted only by the Union or Employer."
The parties concede that the underlying dispute over whether Borden violated sections 2(d) and (e) is encompassed within their agreement to arbitrate and thus arbitrable. Cf. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960).
Defendant seeks to avoid arbitration on the ground that plaintiff has waived its right thereto in that the Union has violated section 5(a) of the Agreement:
"No strikes, lockouts, walkouts or slowdowns shall be ordered, sanctioned or enforced by either party hereto against the other ...