Lumbard, Chief Judge, Kaufman, and Feinberg,*fn* Circuit Judges. Feinberg, C. J. (dissenting).
This appeal presents the question whether an arbitrator exceeded his authority under the collective bargaining agreement between The Torrington Company (Torrington) and Metal Products Workers Union Local 1645, UAW, AFL-CIO (the Union), in ruling that the agreement contained an implied provision, based upon prior practice between the parties, that Torrington would allow its employees up to one hour off with pay to vote each election day. The District Court for the District of Connecticut held that "the arbitrator exceeded and abused his authority when he attempted to read into the agreement this implied contractual relationship," and it vacated and set aside the arbitrator's award. We affirm.
In its company newsletter of December 1962, Torrington announced that it was discontinuing its twenty-year policy of permitting employees time off with pay to vote on election days.*fn1 This policy had been unilaterally instituted by the company and was not a part of the then-existing collective bargaining agreement, which contained an extremely narrow arbitration provision. The Union did not attempt to arbitrate this issue. Rather, on April 9, 1963, it filed a many-faceted complaint with the National Labor Relations Board which included a charge that the unilateral change of election day policy constituted an unfair labor practice.
The Union later dropped this charge, and the Board dismissed the entire complaint on July 29, 1963. In August, the parties began negotiations for a new collective bargaining agreement, as the old contract was due to expire September 27, 1963. At the first meeting, Torrington informed the Union that it did not intend to reestablish its paid time off for voting policy. The Union responded by including a contrary provision in its written demands presented at a meeting in August or early September.
At this point, the record is somewhat unclear as to the circumstances surrounding the negotiations. We know that in the written proposals made by Torrington (September 26) and by the Union (October 25), each suggested that the old contract be continued with specific amendments, none of which involved the election day policy. We know that a long and costly strike began when the old contract expired on September 27, that some employees worked during the strike, and that those employees were not given paid time off for the November 1963 elections. And it is conceded by all that the current contract, signed on January 18, 1964, contained, like the old, no mention of paid time off for voting.
When the 1964 elections became imminent, Torrington's understanding of its rights under the new contract was revealed by a union flier to the employees dated November 2, 1964. The Union reported that, "The Torrington Company has again stated that you will not be allowed the one hour time off for voting this year." This time, however, the Union was armed with a new weapon, for the new contract contained a much less restrictive arbitration clause.*fn2 Thus, on December 17, 1964, the Union filed the grievance which underlies this case. When no solution was reached by the parties, application was made to the American Arbitration Association for determination under its Voluntary Labor Arbitration Rules, and the arbitrator was selected by the parties. A hearing was held on May 19, 1965.
In his written decision, the arbitrator first held that the dispute was arbitrable under the new contract's arbitration clause even though the contract contained no express provision for paid time off for voting, a decision which is not challenged. See, e.g., United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); Procter & Gamble Independent Union of Port Ivory v. Procter & Gamble Mfg. Co., 298 F.2d 644 (2 Cir. 1962). Compare Metal Prods. Workers Union v. The Torrington Co., 358 F.2d 103 (2 Cir. 1966). He then ruled that the benefit of paid time off to vote was a firmly established practice at Torrington, that the company therefore had the burden of changing this policy by negotiating with the Union, and that in the negotiations which culminated in the current bargaining agreement the parties did not agree to terminate this practice. Finding further that this employee benefit was not within management's prerogative under the "management functions" clause of the contract,*fn3 the arbitrator held that employees who took time off to vote on November 3, 1964, or who worked on that day and had received an election benefit in 1962 must be paid a comparable benefit for Election Day 1964.
The company petitioned to vacate the award. Judge Clarie agreed with the arbitrator that the practice at issue had been long established at Torrington prior to 1963. But he also found that, "Throughout the negotiations [of 1963-1964], the plaintiff employer persistently reiterated its position not to grant this benefit [in the new contract]." Commenting that, "Labor contracts generally affirmatively state the terms which the contracting parties agree to; not what practices they agree to discontinue," Judge Clarie held that the arbitrator had gone outside the terms of the contract and thus had exceeded his authority by reading the election day benefit into the new contract after the parties had negotiated the issue but had made no such provision in that contract.
The essence of the Union's argument on appeal is that, in deciding that the arbitrator exceeded his authority in making this award, the District Court exceeded the scope of its authority and improperly examined the merits of the arbitrator's award. The Union relies on the language in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960), the third of the famous Steelworkers trilogy in which the Supreme Court outlined the proper role of the judiciary in labor arbitration cases, to the effect that the courts are not "to review the merits of an arbitration award."
It is now well settled that a grievance is arbitrable "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. at 582-83.*fn4 A less settled question is the appropriate scope of judicial review of a specific arbitration award. Although the arbitrator's decision on the merits is final as to questions of law and fact, his authority is contractual in nature and is limited to the powers conferred in the collective bargaining agreement.*fn5 For this reason, a number of courts have interpreted Enterprise Wheel as authorizing review of whether an arbitrator's award exceeded the limits of his contractual authority. See H. K. Porter Co. v. United Saw, File & Steel Prods. Workers, 333 F.2d 596 (3 Cir. 1964); Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Co., 330 F.2d 562 (8 Cir. 1964); I.A.M. v. Hayes Corp., 296 F.2d 238, 242-43 (5 Cir. 1961). The precise question seems not to have arisen in this Circuit, compare Local 453 v. Otis Elevator Co., 314 F.2d 25 (2 Cir.), cert. denied, 373 U.S. 949, 10 L. Ed. 2d 705, 83 S. Ct. 1680 (1963), where the arbitrator's power to settle the dispute was clear, but we have plainly intimated that the arbitrator's authority to render a given award is subject to meaningful review. See Carey v. General Elec. Co., 315 F.2d 499, 508 (2 Cir. 1963). We agree with Carey that this is an appropriate question for judicial review.
Torrington contends that the arbitrator exceeded his authority in this case by "adding" the election day bonus to the terms of the January 1964 agreement. However, the arbitrator held that such a provision was implied by the prior practice of the parties. In some cases, it may be appropriate exercise of an arbitrator's authority to resolve ambiguities in the scope of a collective bargaining agreement on the basis of prior practice, since no agreement can reduce all aspects of the labor-management relationship to writing. However, while courts should be wary of rejecting the arbitrator's interpretation of the implications of the parties' prior practice, the mandate that the arbitrator stay within the confines of the collective bargaining agreement, footnote 5 supra, requires a reviewing court to pass upon whether the agreement authorizes the arbitrator to expand its express terms on the basis of the parties' prior practice. Therefore, we hold that the question of an arbitrator's authority is subject to judicial review, and that the arbitrator's decision that he has ...