In my opinion, on any fair view of the record before us, the arbitrators did not decide against the company, but rather refused to decide at all, the question whether the discharge of an employe was an arbitrable matter. As stated in the majority opinion (ante, p. 108), the original petition of the union to the superior court “was for either arbitration of the grievance of Semmett, or arbitration of the question whether the Semmett discharge was subject to arbitration. The superior court [on July 8, 1952] ordered only arbitration of the merits of the discharge.”
The company throughout these proceedings has consistently taken the position that the question of discharge was not an arbitrable matter under the collective bargaining agreement between the company and the union. The original appeal of the company from the order directing arbitration was dismissed by the District Court of Appeal of its own motion, in Corbett v. Petroleum Maintenance Co. (1953), 119 Cal.App.2d 21, 22 [258 P.2d 1077], on the ground that the order directing arbitration was not appealable. But as the District Court of Appeal points out, the company’s ground of appeal was that “the [collective bargaining] agreement is silent as to any restriction upon the employer’s right to discharge and, therefore, the'matter of the discharge of the employee is not within the scope of the agreed arbitration procedure.”
After dismissal of this former appeal, the company and the union in writing “submit[ted] to arbitration . . . the following dispute:
“(1) . . . Company, the Employer, asserts that the matter of the discharge of an employee is not subject to arbitration. . . . Union, . . . representing the Employee, Frank Sem*113mett, asserts that the matter of the discharge of an employee is subject to arbitration. The Union asserts that its position has been upheld by the Superior Court [by the above mentioned order of July 8, 1952] . . .
“ (2) The Company asserts that if the matter of discharge is subject to arbitration, the discharge of Frank Semmett, the employee, was proper. The Union asserts that the discharge was improper . . .
“ (4) In submitting this matter to arbitration neither party shall be deemed to have waived any rights given them by law.”1
The majority of the arbitrators, in their opinion filed after the arbitration hearing, announced that they believed that they were bound by the superior court order of July 8, 1952, based on the “conclusion of law that a question of discharge is arbitrable and is within the grievance procedure of the [collective bargaining] agreement between the parties”; fhe majority opinion of the arbitrators further set out in detail the reasons why the majority would have determined that the question was not arbitrable had they believed that such question was open.
The opinion of the dissenting arbitrator states, “It is axiomatic that arbitration can be compelled only where parties have agreed to this method of settling disputes, and then only to the extent provided. The discharge in question was therefore not subject to arbitration and, in my view, the decision of the Superior Court to the contrary is erroneous.
“The majority concurs in this conclusion. It, however, holds that the Superior Court judgment is nevertheless binding upon this Board. The majority states that absent such judgment, it would hold the dispute not to be arbitrable. The anomalous position in which this places the majority is well shown by the result in this case. The very factors which *114go into the question of arbitrability are the ones upon which the decision upon the merits must be based. Thus, it is conceded that the collective bargaining agreement only provides for the arbitration of disputes concerning the performance of the agreement and that therefore disputes concerning discharges are not arbitrable. Yet, assuming arbitrability, the Company’s action can only be upset if it is in violation of the agreement. But it cannot be in violation of the agreement since there is no limitation upon the right to discharge; if there were the matter would be arbitrable. But the majority says it is not arbitrable, and to be consistent it would have to hold that for the same reasons the Company’s action was not in violation of the agreement. However, it has not done so.”
The award of the arbitrators decides that the superior court order of July 8, 1952, “renders this dispute arbitrable” and that “Semmett shall be reinstated.”
When the union moved the superior court to confirm the arbitrator’s award, the company, although it did not move to vacate the award, took the position by its answer to the union’s application for confirmation that “the arbitrators were without jurisdiction and had no authority to make the award herein sought to be enforced for the reasons that [the collective bargaining agreement] . . . contains no restrictions or limitations on the defendants’ [company’s] right to discharge an employee. That the Arbitrators exceeded their powers in making the- award ...”
In my opinion there was presented to the superior court by the foregoing allegations of the company’s answer (perhaps ineptly but with sufficient certainty to make necessary a ruling thereon) the following question of law: Have the arbitrators “exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award, upon the subject matter submitted, was not made”? (Code Civ. Proc., § 1288, par. (d), which requires vacation of an award in the quoted situation.) In my further opinion, the arbitrators did imperfectly execute their powers because they made it clear (by their majority opinion and award) that they thought that because of the superior court order of July 8, 1952, the question of the arbitrability of discharges, although it had been submitted to them, was not properly before them and that they were bound to rule that such question was arbitrable. In fact, the question of arbitrability was before the *115arbitrators and their refusal to decide it was an imperfect exercise of their powers and duties.
Here the arbitrators did not, as the majority opinion of this court states, decide the question of arbitrability against the company; rather, upon a reasonable interpretation of the record, they refused to decide that question in the erroneous belief that it was not open. I recognize and accept the rule, quoted in the majority opinion from Pacific Fire etc. Bureau v. Bookbinders’ etc. Union (1952), 115 Cal.App.2d 111, 114 [251 P.2d 694], that “The powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission.” But when the arbitrators refuse to decide a question submitted to them, it seems to me that they are improperly and insufficiently exercising their powers and duties.
The end result of affirmance of the present superior court judgment which confirms the arbitrators’ award is that the company, despite all its attempts to keep the matter open, has never had an opportunity either to litigate on appeal or to arbitrate the question determined against it by the original superior court conclusion of law that “a question of discharge is arbitrable.”
For the reasons above stated, I would reverse the order confirming the award.
Spence, J., and MeComb, J., concurred.
Appellants’ petition for a rehearing was denied April 10, 1957. Schauer, J., Spence, J., and MeComb, J., were of the opinion that the petition should be granted.
A transcript of the proceedings before the arbitrators, lodged with this court, shows that, at the beginning of the hearing before the arbitrators, counsel for the company and also counsel for the union made clear their position that they were submitting to the arbitrators the question whether the right to discharge was arbitrable. Counsel for the company took the position that under the collective bargaining agreement there was no provision for arbitration concerning discharges, and on this ground claimed that the arbitrators had no “jurisdiction.” Counsel for the company appears mistaken in his claim that the arbitrators were without “jurisdiction” to determine arbitrability, for that question had been expressly submitted to the arbitrators, but he was correct in his position that the question whether discharge was an arbitrable issue was open.