dissenting.
I dissent as to the point discussed and decided under heading No. IV, which is the basic question in this case, after the matter of jurisdiction is disposed of, for the following reasons.
After both employees were acquitted in the Federal Court, the union demanded their reinstatement. The company refused alleging that after an investigation of the facts “we have concluded that Messrs. Torres and Farrulla were negligent in the performance of their duties and consequently they cannot be employed again by this company.”
The only question submitted by the parties to arbitration was the following:
“The union requests reinstatement of employees . . . and also payment of their respective salaries for all the time they remain discharged. ...”
According to the evidence submitted to the consideration of the fifth member of the Arbitration Committee, he stated the following:
*757“Passing on the merits of the contentions of both the workmen and the employers, they tend to show that there was negligence. It is this question exclusively which we must consider in order to decide the complaint. As to whether complaints committed an offensive or criminal act, it was already decided in favor of the complainants by virtue of the judgment of Judge David Chávez of the United States District Court for Puerto Rico.
“We do not see why we must state the reasons to show that complainants’ negligence was properly proved. The evidence tends to prove it, and even the complainants themselves admitted it in their brief of April 12, 1948 by accepting that Armando Farrulla committed “one of the errors charged as serious in Mr. Calzada’s letter and Miguel Angel Torres admits having committed ‘a clerical error of those charged as simple in the letter and which warrant no penalty.’ It is quite plain that these errors are negligent acts, on account of which they were suspended by the company on January 9, 1918.” (Italics ours.)
Notwithstanding the fact that this is the sole question which, in my opinion, was submitted to arbitration — and such seems to have been the understanding of the Fifth Member — he further states:
“The Fifth Member has reached the conclusion that the charge of negligence made by the company against the complainants in its letter of January 9, 1948, and which we have upheld inasmuch as it so appeared from the evidence and the briefs, does not warrant a final suspension as employees of the company. . . (Italics ours.)
It is. clear to me that the Arbitration Committee acted without jurisdiction in deciding, after having admitted that the negligence was proved, that the discharge of the employees did not lie and that it could, capriciously, fix the penalty of one-week suspension on the ground that, for other negligent acts of its employees, the company as a rule suspended them for one week. This question was not submitted to arbitration. The Fifth Member himself, at the end of the award, states:
“Since the respondent corporation has not passed upon the possible penalties to be imposed, confining itself to say that *758they do not even merit reinstatement, which we have considered as somewhat drastic and arbitrary, we have no other choice hut to 'punish each one of the complainants, Miguel Angel Torres and Armando Farrulla, to one-week suspension without pay inasmuch as toe are not clothed with jurisdiction to impose a more severe penalty. . . (Italics ours.)
Where in the submission to arbitration in this case was it stipulated by the parties that the Committee was only clothed with jurisdiction to impose a one-week suspension without pay and that it could not impose a more severe penalty?
The language used and the conclusion reached in the arbitration award, indicate, in my opinion, that if it were to stand,-an employer could at no time discharge a workman for negligent acts which have been proved, if in the opinion of. the Arbitration Committee their negligence only warranted a one-week — or one-day — suspension without pay. Where negligence in the performance of work, causing a considerable loss to the company is proved, as in the present case, said negligence constitutes just cause for discharge. Blanes v. District Court, ante, p. 106. I do not agree in that the submission to arbitration in this case authorized the Committee to decide, despite the fact that the negligence was proved, that it could determine, arbitrarily, what penalty to impose. As to this point, it acted without jurisdiction. Ríos v. Puerto Rico Cement Corp., 66 P.R.R. 446; Simon v. Stag Laundry, 18 N.Y.S. (2) 197, affirmed in 19 N.Y.S. (2) 1943 (1940);1 Application of MacMahon, 63 N.Y.S. (2) 657, where after citing Simon v. Stag Laundry, supra, it is said: “No award can be supported by implications inconsistent with the actual facts,” and here the implication that there was no *759just causé for the discharge is inconsistent with the facts, the evidence and the conclusion of the Arbitration Committee, to that effect.
May 24, 1949.In In Re Stockham Pipe Fitting Co. and United Steel Workers, 1 Labor Arbitration Reports 160 (1946), cited in the article Discharge and Discipline Cases in Labor Arbitration, 43 Illinois Law Review 847, 851, the arbitrator, sustained both discharges on the ground that the company had made a fair investigation before discharging the men and that in the absence of a clear showing of discrimination or abuse of discretion it would be a “usurpation of the functions, of management” for the arbitrator to substitute his judgment for that of the management, even though he may consider the penalty too severe. And this was precisely what the Committee did in the instant case, to usurp the functions of the management on a question which was not submitted to it, thereby acting without jurisdiction. Since I have come to the conclusion that the reinstatement of the employees does not lie, a fortiori they are not entitled either to retroactive pay.
It is my opinion that the petition should be denied.
ON RECONSIDERATION
*760Mr. Justice Snyderdelivered the opinion of the Court.
In our opinion of March 31, 1949 in this case, ante p. 730* wé granted the petition of the Labor Relations Board to enforce an arbitration award insofar as it provides for reinstatement of two checkers of The New York & Porto Rico Steamship Company; but we refused to enforce that pror visibn of the award which calls for back pay from May 9, 1947, the daté these employees were suspended. The Board has’ moved'for''reconsideration of the portion of our judgment refusing to enforce the award as to back pay. It now accepts our ruling that back pay could not be validly awarded from the date of suspension. But.it contends that we should modify our judgment by providing for back pay from the date of discharge on January 9, 1948. Its theory is that the Arbitration Committee could have validly made such an award, which is severable from the provision for back pay from May'9, 1947. We have nothing to add to our opinion in this respect, and will therefore deny the motion for reconsideration. .
However, in arguing its motion, the Board points out that our opinion is silent as to whether these two employees •are entitled to back pay from the date of the award on June ¿1, 1948 to the date of reinstatément pursuant to our judgment. We think the answer is obvious.' Such back pay follows from affirmance by us of ah arbitrator’s award of rein*761statement. The award herein is not ours. ’ It is the Com-ffiittee’s, and it was made on June 21, 1948. When it is enforced, it is therefore enforced as of that date. To hold otherwise would permit employers to use the delays of litigation as a device to postpone for months the effective date of an award validly providing for reinstatement. Our judgment affirming the award of reinstatement therefore means that the company is not only obligated to reinstate these employees, but also' to pay them the salaries they have failed to receive since the date of the award on June 21, 1948. Application of Devery, 41 N.Y. 2d 298, affirmed in 55 N.E. 2d 370 (N.Y., 1944).
The company might contend that we should not reach this conclusion because it was entitled to resist the award insofar as it provided' improperly for back pay from May 9, Í947. But, as we pointed out.in our original opinion, the provisions for reinstatement, and back pay are severable.. If the company had desired to challenge only the' invalid pror vision for back pay,, it could- have reinstated- these employees, without complying with the award of back-pay.. Having deliberately chosen to resist the válid award of reinstatement, the company cannot complain if it is enforced- as of the date it was made. v.
We think it appropriate to point out that in-holding that the award will be enforced as- of the date it’ was issued, we are not modifying the views expressed’ in our original opinion that the award of back pay lacked entirety' because it did not indicate the rate thereof. At that stage" of-the case, the Committee was empowered to use different fprmulae on the issue of back pay. Its failure to make clear which formula should be used was one of the reasons which made the award defective. Our function in implementing the provision for reinstatement -is different. Unlike an arbitrator, under these circumstances we have no discretion to consider the various possibilities in connection with back pay *762or the rate thereof. We simply enforce the provision for reinstatement as of the date of the award. This carries with it back pay for the employees as though they had been employed as checkers in the usual form by the company from the date of the award to the date of reinstatement.
Just as in unfair labor practice orders where provision is made for back pay, the exact amounts due may be determined by use of the administrative machinery of the Board, with the cooperation of the employer, whose payrolls will serve as a basis for the final computation. See Rivera v. Labor Relations Board et al., 70 P.R.R. In this connection, deduction must be made not only of the actual net earnings, if any, of these employees elsewhere during the period involved, but also of the amounts, if any, which they failed without excuse to earn in other available employment. Phelps Dodge Corp. v. N.L.R.B., 318 U. S. 177, 197-200; N.L.R.B. v. Bird Machine Co., F. (2) (C.A. 1, May 12, 1949) ; N.L.R.B. v. Draper Corp., 159 F. (2) 294, 297 (C.C.A. 1, 1947) ; Wallace Corp. v. N.L.R.B., 159 F. (2) 952 (C.C.A. 4, 1947) ; Berkshire Knitting Mills v. N.L.R.B., 139 F. 2d 134, 141-2 (C.C.A. 3, 1943); Mine Workers v. Eagle-Picher Co., 325 U. S. 335. See generally, 2 C.C.H. Labor Law Reporter, 4th ed., § 4755, p. 4979 et seq.; Comment, 37 Ill.L.Rev. 441; Note, 48 Yale L.J. 1265.
The motion for reconsideration will be denied.
Mr. Justice Todd, Jr. dissented insofar as in the opinion on reconsideration the right of employees to back pay from the date of the award is made to depend on the fact that the award “validly” decreed their reinstatement and on the fact' that the Company deliberately chose “to resist the valid award of reinstatement,” because said Justice is consistently of the opinion that the award is erroneous and hence it could not validly order the reinstatement of the employees.
Mr. Justice Negrón Fernández did not participate herein.
I see no distinction at all between Simon v. Stag Laundry, supra, and the instant case. . As stated in the former:
“We are unable to agree with the respondent’s claim that the award made necessarily implies that the Impartial Chairman found that the discharge was unjustified. The fact that the arbitrator imposed a loss of four weeks’ pay leads to no other conclusion than that the discharge was not wrongfully effected.”