Seitz, Aldisert and Stahl, Circuit Judges.
These are three appeals which were consolidated for trial in the district court and for argument before this court because they involved the same dispositive question: whether a labor dispute between Radio Corporation of America (RCA) and Association of Scientists and Professional Engineering Personnel (the Union) with respect to layoff procedure is the subject of the grievance and arbitration machinery provided for by the collective bargaining agreement.
The pertinent facts are as follows: The Union represents a collective bargaining unit made up of engineering personnel employed by RCA at its Camden, Cherry Hill and Moorestown, New Jersey plants. Both parties entered into a written Collective Bargaining Agreement (the Contract), effective July 2, 1964, to expire July 1, 1967. It covered the terms and conditions of employment for the employees within the bargaining unit, including provisions with respect to layoff procedure (Articles 9, 10, and 11).
In the spring of 1967, both RCA and the Union formally indicated, as permitted by the Contract, a desire to terminate the existing agreement and negotiate changes. Accordingly, between May 10, 1967, and the morning of July 5, 1967, twelve bargaining sessions were held. On July 5, 1967, the parties entered into a Settlement Agreement pursuant to which the Contract was to be continued in full force and effect for a period of three years, except as amended by the Settlement Agreement. The latter did not include any amendments relating to layoff procedure. However, on the same date as the execution of the Settlement Agreement, the Union and RCA signed several letter agreements, one of which encompassed the layoff procedure dispute (the Letter Agreement). In pertinent part, it states:
"This is to confirm our understanding reached in negotiations concluded today concerning the establishment of a joint committee to study and make recommendations for mutually satisfactory modifications of all aspects of the layoff procedure (such as retention, severance, rehiring) in the collective bargaining agreement.
"It is agreed that a committee shall be appointed . . . to continue to study said layoff procedure . . . . In the event a satisfactory resolution of said layoff procedure is not achieved by midnight, November 1, 1967, the Association shall have the right to commence a strike at any time between midnight, November 1, 1967, and midnight, November 13, 1967. If no strike is commenced by midnight, November 13, 1967, the provisions of Paragraph 4.03 shall apply."
Pursuant to the above Letter Agreement, a study committee was formed, held a series of meetings, but was unable to reach a mutually agreeable solution to the layoff procedure problem. Full collective bargaining negotiations were then resumed on October 4, 1967, but they also proved fruitless. No agreement having been reached, the Union on November 6 exercised its right to strike under the Letter Agreement. Negotiations continued up to and throughout the strike until December 1, 1967, when RCA notified the Union that because an impasse had been reached, it was terminating negotiations and putting into effect immediately unilateral revisions of Articles 9, 10, and 11 of the Contract embodying the last proposal it put forth during the negotiations.
The Union ended its strike effective December 4, 1967, and on December 11, 1967, filed a grievance with an appropriate representative of RCA in accordance with the grievance procedure established under the Contract. The substance of the grievance was that RCA had breached Articles 9, 10, and 11 of the Contract by putting into effect its announced changes in layoff procedure. RCA immediately advised the Union that its action in that regard was not a proper subject for grievance or arbitration and that it declined to process the alleged grievance and would not participate in any proposed arbitration of such grievance. After the Union notified RCA that it was requesting the American Arbitration Association to appoint an arbitrator, RCA filed a complaint in the district court seeking a ruling that the whole question of the layoff procedure was exclusively the subject of collective bargaining and therefore not subject to the arbitration provision of the Contract. The Union then filed two separate suits in the district court, one seeking an order compelling RCA to proceed to arbitration on the grievance and the other seeking to enjoin any proposed layoff pending final adjudication of the dispute between the Union and RCA.
The three cases were tried together, and the district court, in an unreported opinion, found for RCA in all three. These three appeals by the Union followed.
The Union's principal contention on appeal is that the district court did not limit itself to deciding the issue of arbitrability, but "actually succumbed to the temptation of trying to decide [the merits of] the dispute raised by the grievance." It does not quarrel with the conclusion of the district court that the Letter Agreement must be considered along with the Settlement Agreement in resolving the issue of arbitrability,*fn1 but argues that "its construction, as is true of the construction of other provisions of the Contract (except for the Grievance and Arbitration clause) must be left to the arbitrator."
The court's role in this dispute is limited solely to determining the issue of arbitrability and has been stated to be the following:
"Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Whether or not a party to a contract is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court, not by the arbitrator, on the basis of the contract entered into by the parties. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 4 L. Ed. 2d 1409; Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 8 L. Ed. 2d 462; John Wiley & Sons, Inc. v. Livingston, etc., 376 U.S. 543, 546-547, 84 S. Ct. 909, 11 L. Ed. 2d 898." Retail Clerks International Ass'n etc. v. Lion Dry Goods, 341 F.2d 715, 719-720 (6th Cir. 1965).
We are hence called upon to determine whether the parties agreed to submit the dispute over layoff procedure to ...