The opinion
ON REHEARING
On July 17, 1961, we granted a rehearing in this case, on our own motion, because of apparent conflict between our opinion of July 11, 1961, and the opinion of the Fifth Circuit Court of Appeals in Lodge No. 12, District No. 37, International Association of Machinists v. Cameron Iron Works, Inc., 292 F.2d' 112, rendered on June 27, 1961 (reh. den. July 28, 1961).
After consideration of Cameron, with which we do not agree (because we believe the Steelworkers cases are clearly distinguishable, as noted in our original opinion), and having studied all briefs filed on rehearing, as an inferior court we are forced to hold that our original decision was in error. The original judgment, therefore, will be set aside and there will be judgment for defendant as prayed, for the following reasons:
It is apparent from the collective agreement here that the parties neither expressly granted nor expressly denied to the Arbitrator power to fashion an appropriate remedy for the redress of injuries occasioned by a breach of the contract by either party. Any such power, therefore, must exist, if at all, by way of implication in the collective agreement. However, any implied agreement to empower the Arbitrator to fashion an appropriate remedy must be read against the parties’ restriction that the Arbitrator’s “ * * * decision is confined to an interpretation or application of the terms and conditions of * * " the agreement.
In Cameron the collective agreement provided 1 that the “ * * * terms and conditions of settlement shall be within the sole discretion of the Board *528 * * 292 F.2d 116 , subject, however, to an exclusionary clause against “* * * authority to violate, contravene, disregard or supplement the terms of * * * ” the agreement, Id. The Court there interpreted the exclusionary clause as something less than a positive declaration which would preclude the fashioning of an appropriate remedy by the Arbitrator. Strengthened in its belief by the clause providing that the “ * * * terms and conditions of settlement shall be within the sole discretion of the Board * * *,” the decision of the Arbitrator was held properly to include a determination of whether back pay (the remedy) was within the terms of the agreement, and, if so, whether it was an appropriate remedy. The Court did not find “clearly restrictive language” sufficient to diminish the “great latitude * * * allowed in fashioning the appropriate remedy constituting the arbitrator’s ‘decision.’ ” 292 F.2d 119 .
In the language of the Court, quoting from the Steelworkers cases, “ ‘When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informal judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. * * * ” (Emphasis added.) Id.
Here, as in Cameron, the decision of the Arbitrator or Arbitrators was contemplated as being “ * * * final and binding on the parties * * subject, however, to the exclusionary clause which, it is noted, was more explicit in Cameron than here.
Under the broad teachings of Cameron, it is clear that, in order to deny the Arbitrator power to fashion an appropriate remedy for breach of the collective agreement, we must find clearly restrictive language negating the Arbitrator’s power to fashion a remedy, thereby calling for application of the principle announced by the Court that, when doubt exists as to the arbitrability of an issue, it should be resolved in favor of arbitration. The collective agreement here does not clearly negative the existence of power in the .Arbitrator to make an award. It must be held, therefore, that he possessed the power to make the award and assess the penalty which he entered.
For the reasons given, there will be judgment for defendants as prayed. .
Present decree accordingly.
. The Court, at 292 F.2d 115 , set forth the following:
“ ‘Article IV — Grievance Procedure
“ ‘Section 1. It is the mutual intent and desire of the Union and the Company that employees make an effort to settle their problems or grievances with their Superior prior to resorting to the Grievance Procedure.’
i'fi ifc & jfc *
“ ‘Section 2. Should any difference arise between the Company and any employee as to the meaning, application or interpretation of the provisions of this Agreement, such difference may constitute a grievance and shall be settled as follows:
“‘[(a) through (f) described successive steps] * * *
“‘(e) If the grievance is not satisfactorily adjusted by the General Manager or his designated representative, then arbitration may be invoked as provided in Article V.’
“Article V prescribed a Board of Arbitration composed of one member selected by the Union and one by the Company. The Union and the Company had to name their representatives within three days. Section 1 then provided:
“ ‘Before proceeding toward selection of the third member of the Board of Arbitration, the two representatives appointed by the parties shall attempt to effect a settlement of the controversy within five (5) days * * *. If it should appear that additional time would be helpful toward effecting settlement, this five (5) day period may be extended by mutual consent of the two representatives. In the event settlement of the controversy is not effected during such period * * the two representatives shall * * * select the disinterested member * * Then follows the method of selecting the third member where the two others cannot agree.
“Article V, * * * then continues:
“ ‘Section 2. The Board of Arbitration shall render a decision within fifteen (15) days from the date the hearing is completed. The terms and conditions of settlement shall be within the sole discretion of the Board and the decision of a majority of the Board shall be final and binding on the parties; provided, however, the Board shall have no authority to violate, contravene, disregard or supplement the terms of this agreement.’ ”