This is an action by the Package and Utility Drivers, Local No. 396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (hereinafter called Teamsters) to compel Hearst Publishing Company, Inc., (hereinafter called Company) to submit to arbitration under Title 29 U.S.C.A. § 185 [ 61 Stat. 156 ] (hereinafter called section 301).

Two questions are presented: (1) whether or not the Company is required to submit to arbitration, and (2) what effect an unfair labor practice has on the arbitrability of a certain case.

The Hearst Publishing Company operated two newspapers in Los Angeles, The Examiner and the Herald Express. Employees who delivered the Examiner were members of the Teamsters. Employees who delivered the Herald Express were members of the Guild.

On January 7, 1962, the Examiner discontinued operations. The members of *595 the Teamsters then employed by the Examiner received all monies due and owing them from the employer, which is conceded to be Hearst Publishing Company.

On February 25, 1962, the Herald Express hired additional employees to deliver said newspaper. 152 new employees were hired; and 67 of this number were former Teamster members employed by the Examiner. The Teamster Union on January 19, 1962, wrote the Hearst Publishing Company, and as a result of the discontinuance of the Examiner, requested arbitration under section 11 1 ******of the collective bargaining agreement, of the following issues:

On February 1, 1962, the Company replied, contending that the discontinuance of the Examiner, in effect, voided the collective bargaining agreement.

On February 8, 1962, the Teamsters filed a charge against the Company before the NLRB. 2

The Teamsters, as plaintiff, filed this action to compel arbitration under the collective bargaining agreement on February 21, 1962.

The Company fied a motion for summary judgment on March 22, 1962, contending that: (1) an employer has an absolute right to go out of business; (2) the discontinuance of the Examiner and discharge of its employees, does not give rise to any arbitrable issue; (3) by filing a charge with, the NLRB the Teamsters have foreclosed the route of arbitration; and no arbitration award is binding on the NLRB; and (4) the matters which the Teamsters contend should be arbitrated are within the exclusive jurisdiction of the NLRB.

The Teamsters moved for summary judgment on April 6, 1962, and contended that:

The motions for summary judgment were heard on April 16, 1962. The following important stipulations were agreed on: (1) That there was no dispute of fact in the record and that the court could rule on the motions for summary judgment or it could decide the case on its merits, [Reporter’s transcript, pp. 31, 69]; (2) Hearst Publishing Company is the employer [Reporter’s transcript, pp. 4-6]; (3) The real issue to be decided is whether or not the Teamster *596 members who were formerly employed by the Examiner, when hired by the Herald Express, had to be hired on the basis of seniority and according to the collective bargaining agreement between the Examiner and the Teamsters [Reporter’s transcript, pp. 8, 9, 10, 37-39].

I.

IS THE HEARST PUBLISHING COMPANY REQUIRED TO SUBMIT TO ARBITRATION

This case presents a unique problem concerning the interpretation of recent Supreme Court decisions.

The Teamsters have properly filed this action under section 301 (29 U.S.C.A. 185), and are in effect requesting specific performance of a contract.

There is no doubt that a Company has the right to go out of business for economic reasons. 3 However, the arbitration problem stands separate and apart from the right of a Company to go out of business.

(a) Development of the case law

In the case of International Association of Machinists v. Cutler-Hammer, Inc., [N.Y.Sup.Ct.1947] 271 App.Div. 917 , 67 N.Y.S.2d 317 , aff’d without opinion 297 N.Y. 519 , 74 N.E.2d 464 , it was held that: “It is for the Court to determine whether the contract contains a provision for arbitration of the dispute tendered, and in the exercise of that jurisdiction the Court must determine whether there is such a dispute.”

This holding resulted in the Cutler-Hammer doctrine which allowed the courts to pass on the merits of a grievance under the guise of determining its arbitrability.

The ease of Textile Workers Union of America v. Lincoln Mills [1957], 353 U.S. 448 , 77 S.Ct. 912 , 1 L.Ed.2d 972 , was the first important decision involving a request for specific performance of an arbitration agreement under section 301 [29 U.S.C.A. 185]. The Supreme Court stated that:

The crucial cases in the arbitration area, known as the “trilogy,” were decided in 1960.

In the first case, United Steelworkers v. American Mfg. Co., (1960) 363 U.S. 564 , 80 S.Ct. 1343, 1363 , 4 L.Ed.2d 1432 , the union asked for arbitration of a grievance that one of its members had with the company. The union member had been injured and subsequently had received a workmen’s compensation award. Subsequent to this award the union member requested that he be returned to work, based on the seniority provisions of the collective bargaining agreement. The Company refused to arbitrate this grievance.

The Supreme Court first disapproved the Cutler-Hammer doctrine and then said:

In Steelworkers v. Warrior & Gulf Co., [1960] 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 , the second case in the “trilogy,” the Supreme Court was faced with the following facts: The Company transported steel and steel products by barge and maintained a terminal at Chickasaw, Alabama, where it performs maintenance and repair work on the barges. The employees were represented by the Steelworkers union.

Between 1956 and 1958 the Company laid off some employees reducing the bargaining unit from 42 to 23 men. This reduction was partially due to the Company contracting maintenance work to other independent companies. These independent companies hired some of the laid-off employees at reduced wages.

A grievance was filed with the Company based on the previously stated facts. The grievance was not satisfied; the union requested arbitration; and when the company refused arbitration the union brought suit for specific performance. The lower court dismissed, essentially on the ground that this was a “function of management,” and thus not subject to arbitration.

The Supreme Court reversed and in effect ordered arbitration. The Court stated that:

In the final ease in the “trilogy”, Steelworkers v. Enterprise Corp., [1960] 363 U.S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 , the facts were as follows: Employees were discharged for a wildcat strike. After the discharge and before the arbitration award the collective agreement expired. The arbitration award said that a discharge was not proper and that the proper discipline would have been a ten day suspension. The arbitrator awarded the employees pay for all of the time that they had been discharged subtracting therefrom the ten day suspension period. The District Court ordered the employer to comply with the award.

The Court of Appeals held that the reinstatement and all pay subsequent to the termination of the collective agreement was unenforceable.

The Supreme Court approved the action of the District Court (and thus the arbitrator) and said:

Thus, the Supreme Court, in the previously discussed cases, has indicated: that the Cutler-Hammer doctrine is dead; a suit for specific performance under section 301 may be brought in the District Courts: Federal procedural and substantive law will control such a suit; the “no-strike” clause is the quid pro quo for the agreement of management to arbitrate; the District Courts may not consider the merits of the grievance; the District Courts should resolve all doubts in favor of arbitration; the *599 management contention of “strictly a function of management” will be allowed only when there is a specific exclusion in the agreement by management (it is to be noted that this conclusion assumes a “no-strike” clause in the agreement); and the philosophy behind the Supreme Court granting specific performance of an agreement to arbitrate is based on the arbitrators knowledge of the particular industry and also on the overall aim of industrial peace.

In Portland Web Pressmen’s Union v. Oregonian Pub. Co., [9 Cir.1960] 286 F.2d 4 , certiorari denied 366 U.S. 912 , 81 S.Ct. 1086 , 6 L.Ed.2d 237 , the court was faced with the following fact situation : Company gave notice of termination of its agreement with union one. The agreement was to expire on December 31, 1959. In November another union went on strike against the Company. The members of union one refused to cross the picket line. This refusal continued until union one went on strike on January 2, 1960.

On December 27,1959, union one wrote the Company requesting that a new collective agreement be reached. The Company replied on December 28, 1959, and stated that union one had breached its no-strike agreement and thus its members were no longer employees. Union one then replied, on the same day, indicating that the matter of whether or not its members were still employees should follow the grievance procedure route.

Subsequently the union requested that the District Court order that the dispute be arbitrated. The District Court dismissed the complaint.

The Court of Appeals affirmed, and held: (1) that there was no justiciable controversy in that the contract had terminated on December 31, 1959, and there were no serious contract questions, (2) the NLRB is the proper party to determine whether or not the union still represents a majority of the employees. The Court also indicated that if there was an unfair labor practice the NLRB has exclusive jurisdiction, absent a substantial contract violation:

In distinguishing the “trilogy” the Court stated:

*600 The Pressmen’s case is distinguishable from our fact situation. Our case, as will be indicated in the next section, does involve substantial contract rights. Next, our contract has never been terminated by the Company.

It is concluded at this point in our analysis that the “trilogy” is the controlling case law as far as our problem is concerned.

(b) Application of the case law

The arbitration clause (presented in note one) is a broad arbitration clause. It is to be noted that there is a “no-strike” section in the clause. Thus the requirement (if it is a requirement) of the “trilogy” of a “no-strike” clause serving as the quid pro quo for management’s agreement to arbitrate is met.

At this point we must consider the contentions of the Teamsters and determine whether or not the “trilogy” and their rules would compel arbitration.

(1) The Teamsters first contended that whether or not the Company has the right to terminate employees is in itself subject to arbitration.

It may be argued that the Company has the right to go out of business and of course this is apart from the collective bargaining agreement.

But, the methodology used, the payments to be made, and other collateral considerations, would clearly be arbitrable under the agreement.

(2) Next the Teamsters alleged that the Company discriminated. Whether or not the union can show discrimination is of no consequence. As long as it would come within the contract it is an arbitrable issue. There is no doubt that discrimination would come within the contract.

(3) The union contends that the Company failed to apply the provisions of the agreement in retaining employees.

It may be argued that the employees were not retained but new hires had been made. However, such a problem would clearly come within the seniority provisions of the collective bargaining agreement.

(4) The union alleges that the employees who were retained should have been retained as per the provisions of the collective agreement. Again it would appear that this would be an arbitrable issue.

The foregoing factual analysis is made in light of the fact that the Teamsters, claimed that the Company had violated specific provisions of the contract. The Company took the position that it had not violated the contract. There was, therefore, a dispute between the parties as to “the meaning, interpretation and application” of the contract.

II.

DOES THE FACT THAT THERE MAY BE AN UNFAIR LABOR PRACTICE AFFECT THE ARBITRA-BILITY OF THIS CASE?

The Teamsters have filed a charge with the NLRB contending that the action of the company amounted to an unfair labor practice.

The Company takes the position that, as a result of this filing the NLRB has exclusive jurisdiction. There is a line-of authority which would indicate that when the controversy involves an unfair labor practice the NLRB has exclusive jurisdiction. 4

In Lodge No. 12 etc. v. Cameron Iron Works, [5 Cir.1958] 257 F.2d 467 , it was held, in a well reasoned opinion, that parties to a collective agreement may contract to submit matters which may be an unfair labor practice to arbitration. The Court said:

This case was decided prior to the “trilogy” but would appear to be in accord with the philosophy behind the “trilogy” which is aimed at industrial peace.

It must be noted that our case involves an actual filing of a complaint with the NLRB whereas in Cameron Iron Works there was no filing. We do not believe that this fact would change the application of the theory of that case to our problem.

This Court, based on the “trilogy” of Supreme Court decisions finds that the Teamsters are entitled to have their allegations heard in an arbitration proceeding in accord with the collective bargaining agreement.

. “Section 11. Settlement of Controversies. Both parties hereto further recognize and agree that industrial peace is to be desired at all times in the area covered by this Agreement, and to that end it is agreed: (a) Should a controversy, dispute or disagreement arise during the period of this Agreement, there shall be no cessation or stoppage of work authorized by the Union, and the Union will do its utmost to see that work is continued in a normal and orderly way, and said controversy, dispute or disagreement shall be adjusted in the following manner: $ * * >>

. The NLRB refused to issue a complaint against the Company for violating sections 8(a) (3) and 8(a) (5) but there is pending a complaint against the Company under section 8(a) (1), 29 U.S.C.A. § 158 .

. See: Jay Foods Inc., v. N. L. R. B. [7 Cir. 1961] 292 F.2d 317, 320 ; N. L. R. B. v. Lassing [6 Cir. 1960 ] 284 F.2d 781 , 783; and N. L. R. B. v. Adkins Transfer Co., [6 Cir. 1955] 226 F.2d 324, 327 .

. International Cliem. Wkrs. U. v. Olin Matheson Chem. Corp., [D.C.S.D.Ill.1962] 202 F.Supp. 363 ; and Local 1357, Retail Clerks Int. Ass’n. v. Food Fair Stores, Inc., [D.C.E.D.Pa.1961] 202 F.Supp. 322 . But compare: Local Lodge 1836 v. Raytheon Mfg. Co., [D.C.Mass.1962] 201 F. Supp. 334 ; and Freight Drivers v. Quinn Freight Lines, [D.C.Mass.1961] 195 F.. Supp. 180.