DOUGLAS, J., dissenting. 376 U.S. United States, 370 U. S. 717), which provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Our Rule 40 (1)(d) (2) is to the same effect. Enough has been said to show that the issue was squarely raised in the trial court and squarely passed upon by the Court of Appeals. But if it is assumed arguendo that the point was not squarely raised, few clearer cases for applying Rule 52 (b) have appeared, at least in recent years. Syllabus. JOHN WILEY & SONS, INC., v. LIVINGSTON, WHOLESALE AND DEPARTMENT CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 91. Argued January 9, 13, 1964. Decided March 30, 1964. Respondent labor union brought an action under § 301 of the Labor Management Relations Act to compel arbitration under a collective bargaining agreement executed by a company which the petitioner acquired by merger. The District Court denied relief but the Court of Appeals reversed and directed arbitration. Held: 1. The courts determine whether arbitration is required, based on the agreement. Atkinson v. Sinclair Refining Co., 370 U. S. 238, followed. Pp. 546-547. 2. The substantive law which controls suits under § 301 of the Act is federal law. Textile Workers Union v. Lincoln Mills, 353 U. S. 448, followed. P. 548. 3. Rights of employees under a collective bargaining agreement are not automatically lost by the disappearance by merger of the employer, and in appropriate circumstances the successor employer may be required to arbitrate under the contract. P. 548. 4. Arbitration has a key role in effectuating national labor policy; and when there is substantial continuity of identity in the business enterprise and a clear assertion by the union of rights under the agreement, the duty to arbitrate survives the merger. Pp. 549–551. 5. Procedural questions growing out of a dispute and bearing on its disposition are to be determined by the arbitrator. Pp. 555-559. 313 F.2d 52, affirmed, in part on other grounds. Charles H. Lieb argued the cause for petitioner. With him on the briefs was Robert H. Bloom. Irving Rozen argued the cause for respondent. With him on the brief was Milton C. Weisman. Opinion of the Court. 376 U.S. Thomas E. Harris argued the cause for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging affirmance. On the brief were J. Albert Woll, David E. Feller, Elliot Bredhoff, Jerry D. Anker and Michael H. Gottesman. MR. JUSTICE HARLAN delivered the opinion of the Court. This is an action by a union, pursuant to § 301 of the Labor Management Relations Act, 61 Stat. 136, 156, 29 U.S. C. § 185, to compel arbitration under a collective bargaining agreement. The major questions presented are (1) whether a corporate employer must arbitrate with a union under a bargaining agreement between the union and another corporation which has merged with the employer, and, if so, (2) whether the courts or the arbitrator is the appropriate body to decide whether procedural prerequisites which, under the bargaining agreement, condition the duty to arbitrate have been met. Because of the importance of both questions to the realization of national labor policy, we granted certiorari (373 U. S. 908) to review a judgment of the Court of Appeals directing arbitration (313 F. 2d 52), in reversal of the District Court which had refused such relief (203 F. Supp. 171). We affirm the judgment below, but, with respect to the first question above, on grounds which may differ from those of the Court of Appeals, whose answer to that question is unclear. I. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, entered into a collective bargaining agreement with Interscience Publishers, Inc., a publishing firm, for a term expiring on January 31, 1962. The agreement did not contain an express provision making it binding on successors of Interscience. On October 2, 543 Opinion of the Court. 1961, Interscience merged with the petitioner, John Wiley & Sons, Inc., another publishing firm, and ceased to do business as a separate entity. There is no suggestion that the merger was not for genuine business reasons. At the time of the merger Interscience had about 80 employees, of whom 40 were represented by this Union. It had a single plant in New York City, and did an annual business of somewhat over $1,000,000. Wiley was a much larger concern, having separate office and warehouse facilities and about 300 employees, and doing an annual business of more than $9,000,000. None of Wiley's employees was represented by a union. In discussions before and after the merger, the Union and Interscience (later Wiley) were unable to agree on the effect of the merger on the collective bargaining agreement and on the rights under it of those covered employees hired by Wiley. The Union's position was that despite the merger it continued to represent the covered Interscience employees taken over by Wiley, and that Wiley was obligated to recognize certain rights of such employees which had "vested" under the Interscience bargaining agreement. Such rights, more fully described below, concerned matters typically covered by collective bargaining agreements, such as seniority status, severance pay, etc. The Union contended also that Wiley was required to make certain pension fund payments called for under the Interscience bargaining agreement. Wiley, though recognizing for purposes of its own pension plan the Interscience service of the former Interscience employees, asserted that the merger terminated the bargaining agreement for all purposes. It refused to recognize the Union as bargaining agent or to accede to the Union's claims on behalf of Interscience employees. All such employees, except a few who ended their Wiley employment with severance pay and for Opinion of the Court. 376 U.S. whom no rights are asserted here, continued in Wiley's employ. No satisfactory solution having been reached, the Union, one week before the expiration date of the Interscience bargaining agreement, commenced this action to compel arbitration. II. The threshold question in this controversy is who shall decide whether the arbitration provisions of the collective bargaining agreement survived the Wiley-Interscience merger, so as to be operative against Wiley. Both parties urge that this question is for the courts. Past cases leave no doubt that this is correct.1 "Under our decisions, 1 Wiley argues that the Court of Appeals decided that the effect of the merger on the obligation to arbitrate was a question for the arbitrator. The opinion below is unclear. It first states that "the question of 'substantive arbitrability' is for the court not for the arbitrator to decide." 313 F. 2d, at 55. At another point, it says: "We merely hold that, as we interpret the collective bargaining agreement before us in the light of Supreme Court decisions enunciating the federal policy of promoting industrial peace and stability, especially with reference to arbitration procedures set up in collective bargaining agreements, we cannot say that it was intended that this consolidation should preclude this Union from proceeding to arbitration to determine the effect of the consolidation on the contract and on the rights of the employees arising under the contract." 313 F. 2d, at 56-57. Elsewhere, however, the opinion states: "... [W]e think and hold . . . that it is not too much to expect and require that this employer proceed to arbitration with the representatives of the Union to determine whether the obligation to arbitrate regarding the substantive terms of the contract survived the consolidation on October 2, 1961, and, if so, just what employee rights, if any, survived the consolidation." 313 F. 2d, at 57 (footnote omitted). Judge Kaufman, concurring separately, plainly thought that the court had left to the arbitrator the question of whether Wiley was obligated to arbitrate at all. 313 F. 2d, at 65, 66. |