
    LOCAL 61, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellant v. BRD PLASTICS, INC.
    No. 18463.
    United States Court of Appeals, Third Circuit.
    Argued May 19, 1970.
    Decided June 19, 1970.
    Richard Scupi, International Union of Electrical, Radio and Machine Workers, Washington, D. C. (Irving Abramson, Ruth Weyand, Washington, D. C., on the brief), for appellant.
    Richard H. Zamboldi, Elderkin, Martin & Kelly, Erie, Pa. (Joseph T. Messina, Erie, Pa., on the brief), for appellee.
    Before ALDISERT and ADAMS, Circuit Judges, and HIGGINBOTHAM, District Judge.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

In the Steelworkers’ trilogy, the Supreme Court made it clear that the national labor policy favors the settlement of labor disputes through arbitration. This policy, however, does not provide the solution to the present dispute, but does set forth the guidelines for its resolution.

Local 616, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Union) and Byrd Plastics, Inc. (Employer) are parties to a collective bargaining agreement. The Union filed a complaint in the District Court for the Western District of Pennsylvania to enforce an arbitration award entered presumably on the basis of the collective bargaining agreement. The Employer filed a motion to dismiss alleging, inter alia, that the complaint failed to state a claim upon which relief could be granted since a prior arbitration award had decided the same grievance in favor of the Employer. The District Court granted the Employer’s motion to dismiss, and the Union appealed.

The circumstances leading to the District Court proceeding began on October 24, 1967, when the Union, on behalf of employee, Rosalie Black, filed a “grievance” with the Employer alleging that the Employer violated the seniority provision of the collective bargaining agreement by failing to recall Rosalie Black from layoff. The Union filed its complaint as a “union grievance” rather than an individual grievance, thus short-cutting the procedural steps set forth in the collective bargaining agreement. Although the Employer objected to the initiation of the grievance in this manner, the Union persisted in processing the grievance in this form and arbitration was scheduled before Arbitrator Maurice Nichols. After a hearing, Nichols made an award which sustained the position of the Employer, and dismissed the grievance because the employee haJ not signed it or processed it through th( full grievance procedure outlined in thíagreement. Nichols concluded his opinio) by stating that the grievance was “disiissed without consideration of the mrits of the claim for reinstatement”.

Five days later, the grievace was refiled over the signature of le employee and processed in aeeordance'ith the outlined grievance procedure, he Employer took the position that thecond filing was improper, and that iivas not required to arbitrate the griance again. The Employer based its comtion on the dismissal of Rosalie Black’;rievance by Arbitrator Nichols, and thlause of the collective bargaining agment which states that the “decision Che Arbitrator on a matter properly bee him within the limits of his juris «on shall be final and binding”. The Dn requested the Federal Mediation a Conciliation Service to appoint an ¿rator. Because the collective bargafg agreement states that “either partly request a panel or panels of arbitré”, and “[i]f agreement cannot be r<ed on selection” of an arbitrator <shall be appointed, the Service apted Arbitrator Allen Dash, Jr. AltJh notice was given the Employer, itised to arbitrate the matter and ttPceeding was conducted ex parte.

After the hearing, A*tor Dash decided that Arbitrator iols’. decision did not bar Rosalie Blfom re-filing her grievance because ollective bargaining agreement hatime requirement for initiating ste of the grievance procedure. Arbi! Nichols then decided the case on thits in Rosalie Black’s favor, and aw her back pay from the day the second grievance was filed.

The Union petitioned the District Court for enforcement of the award by Arbitrator Dash. Judge Willson granted the Employer’s motion to dismiss because of lack of jurisdiction of the second arbitrator. In doing so, Judge Willson held that whether the Employer had to arbitrate the grievance a second time was a question of “substantive arbitrability” to be decided by a court rather than the second arbitrator, and that Arbitrator Nichols’ award was binding and final so as to preclude the assertion of the grievance in a second arbitration proceeding. He considered the language in Arbitrator Nichols’ opinion saying the dismissal was “without consideration of the merits” as “surplusage”.

The issue on this appeal is whether the second grievance was arbitrable, or whether the decision of Arbitrator Nichols was “final and binding” so as to preclude further arbitration.

Contrary to the Union’s contention, whether or not a company is required to arbitrate and the issues it must arbitrate are questions which are to be decided by a court. John Wiley & Sons v. Livingston, 376 U.S. 543, 546, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 570-571, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (Brennan concurring); Halstead & Mitchell Co. v. United Steelworkers of America, 421 F.2d 1191 (3d Cir. 1969). The occurrence of the second arbitration does not alter the rule that a court must decide whether the parties agreed to submit a dispute to arbitration, since it was the position of the Employer that a grievance which had previously proceeded through arbitration was no longer the subject of arbitration.

Judge Willson’s conclusion that the award of Arbitrator Nichols discharged the Employer’s obligation to arbitrate the grievance is incorrect.

The national labor policy reflected in the Labor Management Relations Act favors the arbitration of all labor disputes. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969). “[Arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself.” 363 U.S. at 578, 80 S.Ct. at 1350. Thus, unless clearly precluded from arbitration, all disputes between the union and an employer must be resolved through arbitration. 363 U.S. at 581, 80 S.Ct. at 1352. As Justice Douglas said in Warrior & Gvlf: “Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement.” 363 U.S. at 581, 80 S.Ct. at 1352.

The “final and binding” clause of the collective bargaining agreement refers to “matters properly before” the arbitrator. This clause certainly does not make it clear that a dismissal for failure to follow the correct procedure is “final and binding” on the merits. The first arbitration decision, which dismissed the grievance without a consideration of the merits, in no way indicated that the employee was precluded from proceeding in a proper manner. Indeed, Nichols’ statement that he was dismissing the grievance “without consideration of the merits” is to the contrary.

A clause stating that a decision of an arbitrator is “final and binding” is no doubt intended to establish a principle similar to that of res judicata, and to bar reconsideration of the disputes fully decided on the merits. A party who makes a procedural error in filing a complaint which is dismissed without a decision on the merits may, in the absence of the running of the statute of limitations and any other specified bars, re-institute the complaint. A collective bargaining agreement may state specifically that it intends any dismissal, whether on procedural grounds or on the merits, to bar further arbitration. But unless such an intent is explicit, it does not oust a grievance is within the jurisdiction of

The grievance procedure itself has no time limit for initiating a grievance, and thus does not bar the reassertion of the grievance by Rosalie Black. The question of the interpretation of the procedural requirements for filing a grievance is within the jursidiction of the arbitrator. John Wiley & Sons v. Livingston, 376 U.S. at 555, 84 S.Ct. at 917. The decision of Arbitrator Dash on this point represents a proper reading of the contract. “[S]o far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. at 599, 80 S.Ct. at 1362.

Accordingly, the order dismissing the Union’s request for enforcement of the second' award will be reversed, and the case will be remanded to the District Court for proceedings in accordance with this opinion. 
      
      . The Stirs’ trilogy consists of three cas'd by the Supreme Court: United Sers of America v. American Mfgl U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 3409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
     
      
      . The Collective Bargaining Agreement contains a four step grievance procedure for negotiating and settling all grievances between “the Company and the Union or its members”. A separate clause of the agreement, however, f that grievances “so general as )tly affect all or a major portiorte employees * * * may be initii* step as may be appropriate under'cumstances.” Thus, the Union máss a general grievance without cí with all of the normal steps for grievances.
     
      
      . In the recent case of Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (June 1, 1970), Mr. Justice Brennan stated: “ * * * in the Steelworkers Trilogy we emphasized the importance of arbitration as an instrument of federal policy for resolving disputes between labor and management and cautioned the lower courts against usurping the findings of the arbitrator.”
     