Kalodner, Freedman and Seitz, Circuit Judges.
In the instant case the District Court vacated the Award of the Arbitrators on the ground that "the arbitrators' decision as to the scope of the submission was in violation of the terms of the collective-bargaining agreement, and that the decision reached is so unreasonable as to amount to a lack of due process." The Arbitrators had refused to consider the issue as to whether a discharged employee had committed a theft from his employer on the ground that the issue had not been submitted to them and, for reasons later stated, limited their consideration to the single issue whether the penalty of discharge suffered by the employee violated the terms of the collective bargaining agreement.
The threshold question presented by this appeal is whether the District Court acted within the permissible scope of the judicial review of an arbitration award.
The facts critical to our disposition may be summarized as follows:
On April 7, 1965, the appellant, John Sichik was discharged by defendant Great Atlantic and Pacific Tea Company ("A&P"), after 32 years of service, for allegedly stealing four cans of crab meat. Sichik denied that he had stolen the crab meat and asked Local 56, Amalgamated Food and Allied Workers Union ("Union"), of which he was a member, to intervene in his behalf. There followed two discussions between Joseph C. Nettleton, Vice-President and Business Agent of the Union, and representatives of A&P. At both discussions Nettleton expressed the view that there was insufficient evidence to justify the discharge and indicated that Union would seek arbitration.*fn1 Thereafter, on May 21, 1965, the Union Executive Board decided to request arbitration of Sichik's discharge.
On May 27, 1965, Nettleton sent the following letter to the A&P Personnel Manager:
"This is to advise you that the Union intends to institute arbitration proceedings in behalf of John Sichik.
"The matter was brought before our Executive Board, and in view of the fact that John Sichik has 32 years of seniority, they felt that dismissing him from his job was too severe.
"We will be available to discuss this matter with you. If we do not hear from you, we will go ahead with arbitration proceedings."
When A&P did not respond to this letter, Union's attorneys wrote on June 16, 1965, stating that "pursuant to the terms of the collective bargaining agreement we request that the matter of the discharge of John Sichik be submitted to arbitration."
A&P failed to reply to this letter, and on September 7, 1965, Union counsel sent another letter, nothing that they had received no answer to their letter of June 16, in which they had requested that "the discharge of John Sichik be submitted to arbitration."
Again A&P failed to respond, and on September 14, 1965, Union counsel sent the following letter to the American Arbitration Association:
"Pursuant to the terms of the contract between Local 56 and A&P, we request the submission of the discharge of John Sichik to arbitration. Please send both parties lists of proposed arbitrators."
A&P, though informed by the Association of its right to file an answering ...