to comply with the award but that it has failed to do so. Plaintiff asks that defendant be directed to comply with the award and pay costs of the proceeding and attorney's fees.
Defendant's answer while it denies certain averments in the complaint, acknowledges that only two of its denials are material to the issues here involved; namely (1) it denies that Milano was unjustly discharged, and (2) it further denies that the first award of the arbiter awarded any damages to grievant and further avers that defendant did not agree "to reopening of said decision" and therefore denies "that the arbitrator had any jurisdiction, authority or power to reverse his decision denying back pay to the grievant."
We are faced first with the problem of what this court should do under the Labor-Management Relations Act of 1947 when, pursuant to that act, the parties have entered into a collective bargaining contract which provides fully and adequately for the arbitration of grievances
and the grievance here involved was duly submitted to arbitration. The second problem concerns the propriety of granting the motion for summary judgment when defendant contends that by its defense it has raised "genuine issues as to material facts."
We begin with § 301 of the Labor-Management Relations Act of 1947 which provides, in pertinent part, that "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties . . ." 29 U.S.C. § 185(a).
In Textile Workers v. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957) the Supreme Court in an action by a union to compel arbitration under a collective bargaining contract which provided for such arbitration, held that it was proper for a district court to decree specific performance of the agreement to arbitrate under § 301 of the act and that the substantive law to be applied is federal law but that state law if compatible with the purpose of § 301 might be resorted to in order to find the rule that will best effectuate the federal policy.
This circuit, in Ass'n of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 210 F.2d 623, 625 (3d Cir. 1954), had held that § 301(a) is a grant of "federal-question jurisdiction and thus creates a federal, substantive right."
This brings us to the agreement in issue here. There is no dispute concerning its application to the facts of this case. Indeed, the dispute was referred by both parties to arbitration before a neutral arbiter who, thereafter, held two hearings at both of which the company and the union were represented and at which each presumably presented evidence. While the company contends in its memorandum that the second arbitration hearing was held to litigate a completely different issue raised by "another Anthony Milano grievance," its answer to the complaint does not raise this issue
and we are inclined to believe from a fair reading of the two opinions and awards of the arbiter that he was considering at both hearings the same general grievance.
The defendant's real contention seems to be that once having rendered an opinion and award the arbiter cannot thereafter hold another hearing and make a new award unless both parties agree to this procedure.
We do not believe that both parties needed to agree to the procedure followed here, but even if such agreement were necessary (and not found in the record); nevertheless, this court should not pass on the matter, but that question should have been (if it was not) raised before the arbiter.
It will be noted that the grievance section of the collective bargaining agreement provides, in part, in Sec. 1 of Article X, that if "differences arise as to the meaning and application3 of the provisions of . . . [the] Agreement, or . . . [if] differences arise about matters not specifically mentioned in . . . [the] Agreement," arbitration should be employed if other specific procedures have failed.
In United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960) and the two related cases ( United Steel Workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409, and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424), the Supreme Court established the principle governing the role of the courts where the parties have provided in collective bargaining agreements for arbitration. At page 566 the Court, after stating that the statute indicates that final adjustment by a method agreed upon by the parties to settle grievances is desirable, points out that "that policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play," and further, at page 567, "arbitration is a stabilizing influence only as it serves as a vehicle for handling any and all disputes that arise under the agreement . . . . The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. . . . In these circumstances the moving party should not be deprived of the arbitrator's judgment, when it was his judgment and all that it connotes that was bargained for."
Our own circuit, in Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969), in construing this field of the law said, at page 1125, quoting from United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358,
"'it is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.'"
And in reviewing cases decided since the Enterprise case which had held that so long as the arbitrator's decision drew its "essence" from the collective bargaining agreement, it should not be disturbed by the courts, Judge Aldisert pointed out, at 1126, that:
"Each case seems to have fashioned its own standard, and among those variously employed have been: the reviewing court should not disturb the award so long as the interpretation was not arbitrary, or 'even though the award permits the inference that the arbitrator may have exceeded his authority', or merely because it believes that sound legal principles were not applied; the court should interfere 'where the arbitrator clearly went beyond the scope of the submission', or where 'the authority to make * * * award cannot be found or legitimately assumed from the terms of the arbitration agreement', or if the arbitrator made a determination not required for the resolution of the dispute.
"Three decisions suggest no review whatsoever of the arbitrator's interpretations: construction and interpretation is not for the reviewing court; there should be no review on the merits at all; review is confined to the question of whether the union agreed to arbitrate or give arbitrator power to make the award."