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May 3, 1976


The opinion of the court was delivered by: POLLACK


 POLLACK, District Judge.

 This is the third installment in an already protracted series of legal proceedings to answer the simple question of whether the discharge of four funeral home employees is subject to arbitration.

 Plaintiff (hereafter the "Company" or "Garlick"), a corporation operating a number of funeral homes in the New York City area and a member of an employer bargaining unit known as the Metropolitan Funeral Directors Association (hereafter the "MFDA"), *fn1" seeks an order vacating an arbitrator's award holding that the parties agreed in a retrospective writing to arbitrate the dispute. The Union representing the employees involved has cross-moved for an order confirming the arbitrator's award. For the reasons shown, the dispute is not arbitrable and the arbitrator's decision that it is, is vacated and set aside.

 The action is brought pursuant to section 10 of the Federal Arbitration Act, 9 U.S.C. § 10, and section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a).

 Defendant (hereafter the "Union") represents funeral home employees in the New York City area including the four terminated employees. *fn2"

 On October 9, 1973 a collective bargaining agreement containing a contract to arbitrate disputes between the members of the MFDA and of the Union expired. Despite negotiations which had been carried on over the previous summer, the parties were not prepared to enter into a new agreement and there followed various forms of labor warfare by both sides, including picketing, job demonstrations, strikes and lock-outs.

 At the peak of these actions roughly 60% of the funeral home employees throughout the City were either striking or locked-out, but operations continued at all the homes and the 40% of the employees who continued working were paid according to the terms of the old agreement.

 In November of 1973 an MFDA representative notified a Union representative that several Garlick employees would not be reinstated after the labor disputes were settled because of their conduct on the picket lines. The Union made no response. *fn3" The notice was repeated by the MFDA representative on December 12, 1973 to the Union's president and negotiator.

 On December 12, 1973, during the final negotiations on a new agreement, MFDA spokesman presented a three-part stipulation to the Union in which the Union agreed not to discriminate or recriminate against any employees for crossing the picket line and going to work and not to bring any actions against MFDA members for actions growing out of the strike and lockout or the contract negotiations. The MFDA Labor Relations Division agreed, in turn, not to take any action against the Union for acts or conduct growing out of the same events. In presenting the stipulation before final oral agreement on a new contract, the MFDA spokesman again noted that the plaintiff herein was planning to discharge five of its employees (including the four here involved) for their conduct on the picket lines.

 The strikes and lock-outs continued until December 13, 1973 when the Union rank and file ratified an oral understanding on a new contract reached by negotiators on both sides.

 Promptly after the ratification vote the plaintiff sent letters of discharge to the four former employees mentioned above. The Union also received notification of the discharges.

 In late December the Union demanded arbitration of the termination of employment of the four before the American Arbitration Association. Plaintiff challenged the jurisdiction of the AAA on the ground that no arbitration agreement existed between the parties. The Company, in February 1974 countered with a suit in the Eastern District of New York for a declaratory judgment that the discharges were not arbitrable. A preliminary injunction enjoining arbitration proceedings was granted by Chief Judge Mishler on February 28, 1974 on the ground that the parties had not entered into a written agreement to arbitrate the dispute. The order enjoining arbitration of the dispute with the four employees here involved dated March 8, 1974 remains in force and was never vacated by court order or consent of the parties.

 Just before the injunction issued and on February 22, 1974 the Union filed charges against the Company with the National Labor Relations Board, alleging that the Company had violated the National Labor Relations Act, §§ 8(a)(1), 8(a)(3), and 8(a)(5), 29 U.S.C. §§ 158(a)(1), 158(a)(3), 158(a)(5), by refusing to reinstate the four discharged employees. On September 4, 1974 an associate general counsel for the N.L.R.B. sent an internal N.L.R.B. memorandum to the Board's Regional Office ...

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