Before BIGGS, ALBERT LEE STEPHENS, and KALODNER, Circuit Judges.
This is a second appeal in this case. Appellee instituted suit on behalf of himself and other employees of the appellant to recover for alleged unpaid overtime work and damages pursuant to the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The contracts of employment provided for arbitration of disputes and based thereon the appellant made application to the District Court, under Section 3 of the United States Arbitration Act of 1925, 9 U.S.C.A. § 3, to stay the proceedings therein, pending arbitration in accordance with the terms of the contract. The Court below denied the application, D.C., 49 F.Supp. 843, and an appeal was taken.
One of the points involved in that appeal was whether the appellant's application was premature. Appellee contended that an answer to the complaint was necessary to determine the nature of the controversy between the parties and whether there was an issue ueferable to arbitration. Briefly, we held that although we could not know what points would be fought out by the litigants until appellant stated his position, nevertheless, the demand in the complaint constituted an "issue referable to arbitration" within the meaning of the Arbitration Act; hence, appellant's application was not premature. For this, and other reasons, the Order of the Court below was reversed and the case remanded for further proceedings not inconsistent with our opinion. 3 Cir., 138 F.2d 3, 149 A.L.R. 271.
Nothing further happened for a period of about two and a half years. Then appellee filed a motion "To modify Order Staying Action Pending Arbitration".*fn1 Appellant, in response thereto, filed an answer "raising questions of law", but reserving therein the right to reply to the motion or the complaint by specifically admitting or denying the allegations therein.
The Court below recognized that it could not modify a mandate of this Court, but noting that no stay order had been promulgated, it treated appellee's motion as an application for an order staying proceedings in accordance with our mandate, and granted substantially the order sought.*fn2
Appellant, in this appeal, objects to that order on three grounds, that it modifies our mandate, that it anticipates without basis in the record points of probable dispute and limits the arbitration accordingly, and that it goes beyond the authority conferred upon the courts by the Arbitration Act, 9 U.S.C.A. § 3.
Difficulty with the order entered by the Court below is immediately encountered. Appellee, on the prior appeal, had contended that having only the complaint, it was impossible to determine what points would be fought out by the parties, or whether there was any issue for arbitration. We held to the contrary, particularly ruling that the appellant's application was not premature despite lack of responsive pleading. Although we did not in so many words direct the issuance of the stay order requested by the appellant, our limitation, to further proceedings not inconsistent with our opinion, left little, if anything else, to be done below. It did not contemplate an inquiry into any question we had resolved.
Examination of appellee's motion here in controversy reveals that the same considerations lie behind it as were presented on the prior appeal. Thus, paragraphs 7 and 8 thereof*fn3 reiterate the contention that appellant has not defined the issues for arbitration and unless it does so, arbitration cannot be properly conducted. That we disposed of this agrument is not open to doubt. The motion differs now only insofar as it requests the Court to define the issues for arbitration. Whereas on the prior appeal it was urged that the appellant's answer, joining issue, would solve appellee's artificial dilemma. Of course, it is not appellant's obligation to state what issues it wishes arbitrated: appellee made a demand upon the appellant; the latter called to the attention of the court that according to the contract between the parties that demand should have been submitted to arbitration. We agreed. There is now nothing left but to proceed to arbitration; such arbitration is effectuated by the court by staying the trail until arbitration has been had.
Appellee further misconceives the import of our decision in Watkins v. Hudson Coal Co., 3 Cir., 1945, 151 F.2d 311. It need only be noted that in that case there was no similar problem, for an issue of law was presented on the pleadings and the facts necessary to the decision were the subject of a stipulation by the parties. The posture of the instant case does not permit a like result.
We do not stop to discuss in further detail the order entered in this case below, but it is necessary to comment upon the broad authority assumed by the District Court in specifying the issue for arbitration and directing the findings of the arbitrators. Under Sections 3 and 4 of the Arbitration Act, the Court is directed to give effect to an arbitration agreement on the application of a non-defaulting party by staying the judicial proceeding, in the one case, and by specific enforcement, in the other, when it finds that there exists an issue referable to arbitration according to the terms of the written agreement between the parties. The Court may determine questions relating to enforcement, but that is a far cry from such supervision and control of the arbitration proceeding as was here attempted. Force is added to this conclusion by Sections 10 and 11 of the Act which provide for recourse to the court in the proper dase. We find nothing in the arbitration agreement here in controversy on this score, and it would certainly seem that the arbitrators may hear and decide any issue referable to them under the agreement which the parties care to submit. In any event, we see no reason for the exercise of such restrictions here and now. As this Court said in disposing of the prior appeal, 138 F.2d 3, at page 7, 149 A.L.R. 271, "we should not choke the arbitration process which has been given congressional approval * * *". In the Watkins case, supra, we marely decided the issues which were not for arbitration and noted that there remained other matters for arbitration.
The order of the District Court is reversed and the cause is remanded with directions to stay the trial ...