April 1. The doctrine of temporary impossibility is applicable to these circumstances since the length of the delay could be easily estimated and the employer would be required to render performance substantially similar to that originally contemplated upon termination of the impossibility. See 6 Williston on Contracts § 1957 (1938 Rev. Ed.); see also Local 368, United Federation of Engineers v. Western Electric Co., 359 F. Supp. 651, 656 (D. N.J. 1973) (general canons of contract construction available for ascertaining intent of parties in labor context). We therefore conclude that while the negotiation requirement was temporarily excused, the parties were not excused from other responsibilities arising from the contract.
We find further support for this determination in the policy of the National Labor Relations Act. The Midwest Piping doctrine implements a Congressional desire to protect representational rights by insulating the employees' selection of a bargaining agent against interference by an employer. It would directly contravene that policy if an employer were permitted to hide behind this doctrine to deprive employees of a negotiated contract right.
3. April 1 Notice of Termination. In support of its cross-motion for summary judgment defendant argues that its letter of April 1, 1976 constituted notice of intent to terminate the Agreement which termination was effective on June 1, citing section 8(d) of the National Labor Relations Act. 29 U.S.C. § 158(d). This position is untenable for two reasons. First, we have determined that the contract of May 2, 1974 expired by its terms on April 1, 1976: only the terms of the contract were effective beyond that date, and they were not susceptible of termination pursuant to section 8(d) of the Landrum-Griffin Act. Secondly, even if the contract was still viable, defendant did not by that notice comply with the requirements of section 8(d) to effectuate termination. The notice did not refer to section 8(d) or the 60-day requirement; defendant did not notify the Federal Mediation and Conciliation Service; and the defendant did not offer to negotiate with plaintiff regarding modifications. Admittedly satisfaction of some of the statutory requirements might be inappropriate during a representation dispute; again, however, the Post cannot be permitted to convert this dispute to its own advantage by attempting to alter the existing employment relationship. While we recognize caselaw that excludes strict compliance with the requirements of section 8(d) in other factual contexts, we reach our determination because of the unique circumstances presented herein and because defendant's failure to comply with any of the provisions of section 8(d) indicates strongly that the proffered explanation of the April 1 communication is merely an ex post facto attempt to import significance to it.
c. Conclusion. In view of our determination that the arbitration provisions are "terms" of the agreement and remained operational beyond April 1 by virtue of said agreement, it is not necessary to confront the question of the propriety of directing arbitration after the termination of a collective bargaining agreement.
Upon consideration of the motions of both parties, memoranda and points and authorities in support thereof and in opposition thereto, and for the foregoing reasons, it is by the Court this 14th day November, 1977,
ORDERED, that the motion of plaintiff for summary judgment be, and the same hereby is, granted to the extent that defendant shall be directed to resolve all grievances within the meaning of Article XX of the collective bargaining agreement of May 2, 1974, pursuant to the provisions of that contract relating to grievance and arbitration processing; and it is further
ORDERED, that the motion of defendant for summary judgment be, and the same hereby is, denied; and it is further
ORDERED, that this action be, and the same hereby is, dismissed.
John H. Pratt United States District Judge