Aрpellant, Crescent City Lodge No. 37 of the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), brought suit in District Court in an effort to compel Boland Marine and Manufacturing Company, Inc. (the Company) to arbitrate a grievance under the provisions of a collective bargaining agreement. Jurisdiction was based on § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). 1 The District Court refused to comрel arbitration of unión steward George Klein’s preferential overtime claim. Appellant argues that this ruling should be reversed, asserting that Klein’s right to arbitration of his claim was not precluded by the refusal of the Nationаl Labor Relations Board (NLRB) to issue a complaint in an unfair labor practice charge involving a legal issue pertinent to his claim. We agree with the appellant.
Appellant Klein has been an outside Machinist for twenty-eight years and has served as an outside steward for the Union for three and a half years. On May 6,1975, Klein was informed that he would be transferred to the Company’s Machine Shops as an inside Machinist Benchman. Following this action, the Union, on behalf of Klein, filed grievances for arbitration relating to the transfer. A hearing was conducted on June 19, 1975, and the arbitrator issued an opinion on two grievances on September 16, 1975.
After this decision was rendered, the Union complained that Klein’s claim for overtime, based on the stewards preference clause of the contract, had not been disposed of. In a supplemental decision of September 29, 1975, the arbitrator explained that the stewards preference clause requires that a steward be “competent to perform the work” and that because the record was dеvoid of evidence that Klein was competent to perform overtime assignments following his transfer to the inside job, he could not rule on the overtime claim. He concluded his opinion by stating that Klein was entitled tо have this claim resolved through arbitration and his “right to assert his overtime claim in a future proceeding is preserved and is maintained without prejudice.”
After receiving this supplemental decision, the Union requested оf the Company that the overtime claim be submitted to arbitration. The Company refused to do so.
On February 26, 1976, the appellant Union and another New Orleans labor organization, International Brotherhood of Boilermakers, Local 37, filed a joint unfair labor practice charge with the Fifteenth Region of the NLRB against Boland Marine, alleging violation of § 8(a)(5) of the National Labor Relations Act. The basis of the charge was the Company’s refusal to honor *1186 a stewards preference clause in the bargaining agreements between the Company and the Unions. This same clause was the basis of the Klein grievance, which at the timе of the filing of the NLRB charge had not been submitted by the parties to arbitration.
On April 26,1976, following a month-long investigation, the NLRB Regional Director of the Fifteenth Regional office in New Orleans informed the charging party unions that a complaint would not be issued in the matter, because “[t]he Employer’s action in ceasing to honor the super-seniority clause is lawful, in view of Dairylea Cooperative, Inc., 219 NLRB [656]. . . . ” In Dairy-lea the Labor Board held super seniority clauses to be presumptively unlawful where not limited on their face to lay off and recall and placed the burden of rebutting that presumption on the party asserting the clause’s legality.
Sometime thereafter the NLRB’s General Counsel informed the Union that it would not consider the appeal of this matter; 2 therefore, the Regional Director’s ruling stood.
The Union then renewed its demand for arbitration of the Klein grievance, filing suit under § 301 of 29 U.S.C. § 185 on September 21, 1976, seeking an order to compel the Company to arbitrate the grievance. The Company filed a motion to dismiss, and then the Union filed a motion for summary judgment.
On December 8, 1976, a hearing on these motions was held, and the District Judge granted the Company’s motion to dismiss, exрlaining that he was bound by the Labor Board finding that the stewards preference clause was no longer enforceable.
On appeal the Union argues that the refusal by the NLRB to issue a complaint in the unfair labor practice charge is not a bar to the arbitration of Klein’s collective bargaining agreement grievance, which was submitted by the Union prior to the filing of the § 301 charge, despite the similarity of the legal issues аssociated with the grievance and the unfair labor practice charge. It is important to note that this is not a question of whether to order the enforcement of an arbitrator’s award; instead it is a question of whether or not to require arbitration at all.
The Company cites in its brief numerous cases indicating that the Labor Board’s decision has precedence over an arbitrator’s ruling, but those cases involve situatiоns in which an arbitrator’s decision has already been made and is found to be in conflict with the Board’s decision.
In the celebrated “Steelworkers trilogy” the Supreme Court delineated the proper apprоach for the courts in an arbitration matter.
United Steelworkers of America v. American Mfg. Co.,
(1) Arbitration is desirable and should be encouraged;
(2) the duty to utilize arbitration depends on the labor contract;
(3) where the clause is a broad one as we have here, i. e., “. . . any dispute about the proper application of meaning of the contract, . . . then the parties have manifested a clear desire to utilize the process; and
(4) although matters may be excluded from arbitration, such exclusions should be clear and explicit.
Oil, Chemical & Atomic Workers International Union v. Southern Union Gas Co.,
5 Cir. 1967,
*1187
Although the question of arbitrability is one for judicial determination, this Court has frequently pointed оut that we must resist the temptation, in ruling on this threshold issue, of making a decision on the merits of the case. We must not go “beyond deciding whether the agreement, on its face, [makes] the claim asserted arbitrable.”
Southern Union, supra; see also, Communication Workers of America v. Southwestern Bell Telephone Co.,
5 Cir. 1969,
In this case the Company argues that because the Labor Bоard, in refusing to issue an unfair labor practice complaint against the Company, said that the stewards preference clause of the contract could not be enforced in view of the Dairylea decision, Klеin’s grievance based on that clause is not arbitrable. The Supreme Court specifically rejected this sort of argument in the first case of the Steelworkers trilogy.
In
International Association of Machinists
v.
Cutler-Hammer, Inc.,
Therefore, it is not for this Court to look at what the outcome of arbitration of Klein’s grievanсe might be in view of the NLRB’s decision; our duty is simply to look at the labor agreement and determine whether this is the sort of question which is covered by the arbitration. The grievance procedure section of the contract between Boland Marine and the Union calls for arbitration on “matters concerned with the interpretation and application of the language of this agreement.” This broad arbitration clause сlearly indicates to this Court a desire by the parties to use the arbitration process. Klein’s grievance is based on the stewards preference clause in the labor contract; therefore, an arbitrator should be allowed to interpret the application of the clause to Klein’s particular situation. In two cases in which employers asserted the refusal of the NLRB Regional Director to issue a complaint as a bar to compelling arbitration, the Second Circuit has held as we do. In
Luckenbach Overseas Corp. v. Curran, 2
Cir. 1968,
In holding that Boland Marine should be compelled to arbitrate the Klein grievance, we note the following statement made at the conclusion of
United Gypsum Co. v. United Steelworkers of America,
5 Cir. 1967,
*1188 Additionally, where unusual situations аre presented involving possible clashes between arbitral and Board determinations, between policies for arbitration and for authoritative administrative disposition, the determination that each grievance is arbitral is that and nothing more. Such pronouncement does not begin to put an advance Court imprimatur on the award. That can await enforcement. “We make doubly plain that this opinion in no way indicаtes what, if any, decision an arbitrator should or must make. We hold merely that he should determine the grievance. Whether the decision or the remedy prescribed is, or is not, supportable is for another day.” International Ass’n of Machinists v. Hayes Corp., supra, 296 F.2d [238] аt 244. And for all we know this might wash out. Cf. Byers v. Byers, 5 Cir., 1958,254 F.2d 205 ; City of Houston v. Standard-Triumph Motor Co., 5 Cir., 1965,347 F.2d 194 .
We reverse the District Court and direct that the grievance be submitted to arbitration.
Reversed and Remanded for further proceedings not inconsistent herewith.
Reversed and Remanded.
Notes
. 29 U.S.C. § 185
(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
. The General Counsel refused to hear the appeal because it was filed a day late. At oral argument the attorney for the Union explained that the delay was not a matter of strategy, but simply a mistake on his part.