dissenting:
In my opinion, the result reached by the majority in this case flies in the face of the plain and unambiguous language of the collective bargaining agreement (Agreement), and is squarely at odds with the law of this Circuit as set forth in Monongahela Power Co. v. Local No. 2332, 566 F.2d 1196 (1976) and Textile Workers Union of America v. American Thread Co., 291 F.2d 894 (1961).
Article XI, Section 8 of the Agreement and Rule 6 of the Company Rules provide that the Company’s right to discharge “shall be deemed to include the right to suspend or otherwise discipline an Employee in lieu of discharge.” In the words of the late Judge Dobie, this language is as “clear as crystal and crisp as bacon.” Under this language, once a violation occurs, the Company can discharge an employee or it may, in its discretion, take some less severe disciplinary action. Disregarding this unambiguous language of the Agreement, however, the arbitrator took it upon himself to substitute his judgment for that of the Company, and selected the “more equitable discipline” of suspension.
In reducing the disciplinary action from discharge to suspension, the arbitrator, in effect, wrote into the contract a system of “progressive discipline”. Such a system had been proposed by the Union during the contract negotiations between the parties but had been rejected and, accordingly, omitted from the final Agreement. Despite this fact, the majority, in effect, is now giving the Union an opportunity to obtain the benefit of a contract provision which it proposed and lost at the bargaining table. Such an anomaly was rejected by the Second Circuit in Torrington Co. v. Metal Products Workers Union Local 1645, 362 F.2d 677, 681 (2 Cir. 1966):
While it may be appropriate to resolve a question never raised during negotiations on the basis of prior practice in the plant or industry, it is quite another thing to assume that the contract confers a specific benefit when that benefit was discussed during negotiations but omitted from the contract.
In ruling in favor of the Company, the district judge understandably relied upon our decisions in Monongahela Power Co. and American Thread, supra, both of which are conspicuous by their absence from the majority opinion. In each of those cases, we held that the action of an arbitrator in substituting his judgment on the appropriate discipline for that of the employer violated the terms of the collective bargaining agreement and exceeded the limits of his authority. The law of this Circuit was clearly stated by Judge Russell in Monongahela Power Co.:
The powers of an arbitrator are not unlimited. He derives his authority from and is bound by the terms of the contract from which he draws his authority; and while “[H]e may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.” His function is confined to the interpretation and application of the collective bargaining agreement under *801which he acts and, while he may give his own construction to ambiguous language, he is without any authority to disregard or modify plain and unambiguous provisions. This is a well-established principle of law; it is, also, specifically so provided in the agreement in this case.
In Article X of this agreement the employees bound themselves not to engage in a work stoppage during the currency of the agreement. The arbitrator found, and the parties take no exception to the finding, that the employees in this case did violate this provision of the agreement. As already stated, the Article specifies that, in such an event, the Company shall have the unqualified right to discipline or discharge the offending employees. The penalty to be imposed for violation of the Article was thereby specifically reserved to the Company and was in no way committed to the discretion or decision of an arbitrator. That provision, the agreement expressly stated, was not within the power of the arbitrator to amend, alter or nullify. The arbitrator in this case accordingly had no power or authority to change or amend the penalties imposed by the Company on the offending employees on account of their violation of the obligation under Article X of the collective bargaining agreement and his action in so doing was illegal and void.
566 F.2d at 1198-99. (footnotes omitted).
I would affirm the judgment of the district court.