“[W]e have plainly intimated that the arbitrator’s authority to render a given award is subject to meaningful review”, 362 F.2d at 680
How later courts described this case
- “[W]e have plainly intimated that the arbitrator’s authority to render a given award is subject to meaningful review”, 362 F.2d at 680
- setting aside such an award
- clause limits arbitrator’s powers in adding to an agreement
Written by the judges who cited it.
Later courts went against this
Disapproved — as noted by a later court
There was a strong dissent (362 F. 2d at 682-684), and the case has been disapproved in, e.g., Holly Sugar Corp. v. Distillery, Rectifying, Wine & Allied Wkrs.
medium confidence
The opinion
FEINBERG, Circuit Judge
(dissenting) :
I respectfully dissent.
I start with the proposition, accepted by the majority, that an arbitrator’s award may be reviewed by the courts only to see if “it draws its essence from the collective bargaining agreement” and whether “the arbitrator’s words manifest an infidelity to this obligation.” See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 , 80 S.Ct. 1358, 1361 , 4 L.Ed.2d 1424 (1960). But this inquiry is a very limited one and, so limited, should lead to reversal of the court below.
The arbitrator in this case concluded that both parties agreed at the bargaining table to continue the prior practice of paid time off for voting. It is clear that the new contract did not by its terms deal with the time off for voting issue. But the arbitrator reasoned that it was the company, not the union, that was trying to change the twenty-year old practice. It was the company that introduced the issue into the bargaining at the first negotiation meeting in August 1963, and insisted on a change in the practice. Thereafter, according to the arbitrator, the company “removed * * * [this demand] from the table * * *. Thus * * * both parties agreed that the old contract was to be continued except for certain changes among which was not a change in the practice of giving time off with pay for voting.”
The arbitrator assumed that a collective bargaining agreement can include terms or conditions not made explicit in the written contract. This proposition is correct. In a prior appeal involving these same parties and this same con *683 tract, this court said that the arbitration clause of the agreement could be applicable to a recall grievance if there were “some special agreement making it applicable or * * * some custom or common understanding which has that effect.” Torrington Co. v. Metal Prods. Workers, 347 F.2d 93, 95 (2d Cir.), cert. denied, 382 U.S. 940 , 86 S.Ct. 394 , 15 L.Ed.2d 351 (1965). This is a clearÍ statement of the view that it is proper! to look beyond the terms of a labor con-j tract in interpreting it. In United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 580 , 80 S.Ct. 1347, 1352 , 4 L.Ed.2d 1409 (1960), the Supreme Court said: “Gaps [in the “written document”] may be left to be filled in by reference to the practices of the particular industry and of the various shops covered by the agreement.” 1 Moreover, the difference between the earlier (1961-1963) and the new contract in this case is most significant. The arbitration article in the earlier contract contained the following limitations on the arbitrator’s power:
The Company’s decisions will stand and will not be over-ruled by any arbitrator unless the arbitrator can find that the Company misinterpreted or violated the express terms of the agreement.
******
No point not covered by this con- • tract shall be subject to arbitration
After a 16-week strike in which the scope of the arbitration clause was an important issue (which, in itself, is unusual), these limitations on the arbitrátor’s power were excluded m the new contract. This was a clear recognition by the parties that there can be “implied” as well as “express” terms in the agreement. In this case, the arbitrator held that pay for time off for voting was a benefit which was such “an implied part of the contract.” If so, then, of course, the arbitrator did not “add to, delete from, or modify, in any way, any of the provisions of this agreement” in violation of the arbitration clause.
Thus, the arbitrator looked to prior practice, the conduct of the negotiation for the new contract and the agreement reached at the bargaining table to reach his conclusion that paid time off for voting was “an implied part of the contract.” From all of this, I conclude that . the arbitrator’s award “draws its essence I from the collective bargaining agree-71 ment” and his words do not “manifest j an infidelity to this obligation.” Once 1 that test is met, the inquiry ends. \ cori:ect...is-irreLevanti 2 because the parties .agreed, .to. abide by_.it.-right or wrong. 3 Nevertheless, the majority has carried the inquiry further and concerned itself with a minute examination of the merits of the award, which we are enjoined not to do. 4 Thus, the majority opinion states that the arbitrator “ignored the fact that the company had revoked [its] * * * policy almost ten months earlier.” Of course, the arbitrator was aware of the company’s actions in December 1962 and April 1963 and referred to them in his opinion. And I would suppose that what significance to attach to these acts — e. g., whether the company *684 could “revoke” its policy unilaterally- — ■ and to the bargaining held thereafter is exactly the sort of question the parties left to the arbitrator to decide.
Supreme Court decisions are quite clear that the courts should not leap into the arbitration process too quickly. I need not repeat here the reasons for this approach; they are set out in detail in the famous trilogy. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra; United Steelworkers of America v. Warrior & Gulf Nav. Co., supra; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960). 5 It used to be that the attempt to obtain court review of the merits of an arbitration award was made under the guise that the issue was so clear it was not arbitrable. But the trilogy settled that old fight. This case shows the same attempt under the guise that the arbitrator has exceeded his authority, and it should meet with no greater success.
. See also Willson H. Lee Co. v. New Haven Printing Pressmen, 248 F.Supp. 289, 290 (D.Conn.1965) (arbitrator may seek guidance from past practices of the company); American Mach. & Foundry Co. v. UAW, 48 CCH Lab.Cas. ¶ 18452 , at 29746 (S.D.N.Y.1963), aff’d per curiam, 329 F.2d 147 (2d Cir. 1964) (same); United Furniture Workers v. Virco Mfg. Corp., 45 CCH Lab.Cas. ¶ 17771 , at 27325 (E.D.Ark.1962) (same); Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1498-1500 (1959).
. I by no means imply that I think the arbitrator was wrong here on the merits.
. The reluctance of these parties to accept an arbitrator’s award is, of course, not confined to one side. In Metal Prods. Workers Union, etc. v. Torrington Co., 358 F.2d 103 (2d Cir. 1966), the union similarly moved to vacate an arbitrator’s award.
. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at 598-599, 80 S.Ct. at 1361-1362.
. For examples of judicial reluctance since Enterprise to review an arbitrator’s decision, see, e. g., Ficek v. Southern Pac. Co., 338 F.2d 655, 657 (9th Cir. 1964), cert. denied, 380 U.S. 988 , 85 S.Ct. 1362 , 14 L.Ed.2d 280 (1965); Avco Corp., etc. v. Mitchell, 336 F.2d 289 , 291 (6th Cir. 1964); Minute Maid Co. v. Citrus, etc., Workers, 331 F.2d 280 (5th Cir. 1964) (per curiam).