United Steelworkers v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 581, 80 S. Ct. at 1352 (citation omitted). See also, Section 203(d) of the Labor Management Relations Act, 1947, 61 Stat. 154, 29 U.S.C. § 173(d).9

The Supreme Court has emphasized that " 'The underlying objective of the national labor laws is to promote collective bargaining agreements and to help give substance to such agreements through the arbitration process.' " Carey v. Westinghouse Electric Corp., 375 U.S. 261, 265, 84 S. Ct. 401, 405, 11 L. Ed. 2d 320 (1964), quoting Judge Fuld, below, in dissent, 11 N.Y.2d 452, 458, 230 N.Y.S.2d 703, 706, 184 N.E.2d 298, 300 (1962).

There is no suggestion here of fraud or bias on the part of either Arbitrator Kagel or Arbitrator Marcus, See Holodnak v. Avco Corp., Avco-Lycoming Division, 381 F. Supp. 191 (D.Conn.1974), Mdf'd on other grounds, 514 F.2d 285 (2d Cir.), Cert. denied, 423 U.S. 892, 96 S. Ct. 188, 46 L. Ed. 2d 123 (1975), or that they went beyond the provisions of each of the respective collective bargaining agreements, See, City Electric, Inc. v. Local Union 77, IBEW, 517 F.2d 616, 619 (9th Cir.), Cert. denied, 423 U.S. 894, 96 S. Ct. 194, 46 L. Ed. 2d 127 (1975); Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966). Neither is it argued that either arbitrator acted improperly or made the wrong decision based upon the two agreements which, respectively, were before each of them; nor should either of these arbitrators have been governed by provisions in the other's agreement.

"(A)n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He 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."

United Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S. Ct. at 1361. See also, Holly Sugar Corp. v. Distillery, Rectifying, Wine & Allied Workers, 412 F.2d 899, 902-03 (9th Cir. 1969); Riverboat Casino, Inc. v. Local Joint Executive Board, 578 F.2d 250 (9th Cir. 1978).

Despite the unchallenged fidelity of each of these arbitrators to the agreements which had been drafted by the Company and each of the unions, the Company now attacks the awards because of their apparent inconsistency. This, it is argued, should be a basis for ignoring firm federal policy on the finality of a labor arbitrator's decision.10

The Company asserts that national labor policy as announced by the Supreme Court in Transportation-Communication Employees Union v. Union Pacific Railroad Co., supra, 385 U.S. 157, 87 S. Ct. 369 (Transportation Union ), requires the vacation of the two bipartite awards here and the ordering of tripartite arbitration.

In Transportation Union, a case that arose under the Railway Labor Act, 45 U.S.C. §§ 151-163, the employer had installed electronic data processing equipment which created new jobs that had not been contemplated when the existing collective bargaining agreements were established. Two unions, one representing the telegraphers, the other the clerks, in separate bargaining units with the company, each claimed the new jobs for members in their respective units. The employer assigned the new work to members of the clerks' union. The telegraphers' union protested this assignment under its collective bargaining agreement, processed its grievance and referred its claim to the Railway Adjustment Board, the statutorily established final arbiter for disputes covered by the Railway Labor Act. See 45 U.S.C. § 153. The clerks' union refused to become a party to that arbitration, and neither the employer or the telegraphers' union attempted to compel the clerks' participation. The Board considered only the telegraphers' collective bargaining agreement and decided that the work should have been assigned to the telegraphers. When that union petitioned a federal district court for enforcement of the Board's award, the court refused and dismissed the case because of the absence of an indispensable party, the clerks' union. The Supreme Court affirmed the dismissal and ordered the case remanded to the Board for tripartite arbitration.

The analogy between Transportation Union and the case at bar which appellant seeks to draw is not strong enough to outweigh the facts that in Transportation Union the arbitrator derived its power from an act of Congress and was fulfilling a governmental obligation in the exercise of that power. Although the Supreme Court expressed a view favoring tripartite arbitration in work assignment disputes, the Court was careful to point out that it had previously held that a statute gave the Railroad Adjustment Board exclusive jurisdiction to hear and determine work assignment disputes. Id., 385 U.S. at 164, 87 S. Ct. 369. Relying heavily on that portion of the Railway Labor Act which provides that the Board itself shall give notice of a hearing " 'to the . . . employees . . . Involved in any disputes . . .' (45 U.S.C. § 153, First (j))" Id. (emphasis supplied), and stressing the fact that the "clerks' union . . . is 'involved,' " Id., the Court held that the refusal of one union to participate in an arbitration proceeding involving the other contestant in a work assignment dispute was not only unjustified, but resulted in the Board's failure to comply with its enabling statute, providing for " 'the Prompt and Orderly settlement of All disputes . . .,' . . . § 2(5). (Emphasis supplied.)" Id. at 162, 164, 87 S. Ct. at 373. Thus the Court held that the bipartite award should be vacated, because "(t)he Adjustment Board . . . can, with its experience and common sense, handle this entire dispute in a satisfactory manner in a single proceeding." Id. at 165, 87 S.Ct. at 373.

The statutory power and authority of the Railroad Adjustment Board under the Railway Labor Act has no application to the parties here. It would appear that the kind of expansive purview given to the Railroad Adjustment Board remains beyond what the Supreme Court has ruled as being within the limited competence of the labor arbitrator whose authority arises out of a collective bargaining agreement. See United Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S. Ct. 1358.

The rights of the parties here to arbitration, Inter se, depend not upon a statute, but upon the obligations created by the agreements between the Company and, respectively, each of the unions. And, no contention is made that either of the agreements involved in this case contain any provision relating to tripartite arbitration of work assignment disputes.

Instead this case presents an example of a failure at the time of assenting to the collective bargaining agreement or at the time of the first emergence of this jurisdictional dispute to anticipate and to take steps to avoid this recurring problem in industrial relations which was identified, but not resolved, in Carey v. Westinghouse Electric Corp., supra, 375 U.S. 261, 84 S. Ct. 401.

In Carey, the International Union of Electrical, Radio & Machine Workers (IUE) and another union known as the Federation entered into agreements with Westinghouse wherein IUE represented all production and maintenance employees and the Federation represented all salaried technical employees. IUE charged that Westinghouse has assigned work which properly belonged to employees in its bargaining unit to employees in the unit represented by the Federation. The New York Court of Appeals affirmed a lower court's refusal to order arbitration between IUE and Westinghouse on the ground that the Taft-Hartley Act preempted the issue for the National Labor Relations Board to the exclusion of arbitration. The Supreme Court reversed. In the course of its opinion, the Court expressly noted that only one union would be arbitrating and "(s)o, unless the other union intervenes, an adjudication of the arbiter might not put an end to the dispute." Id. at 265, 84 S.Ct. at 406. Stressing that holding of the Court's majority, Mr. Justice Black, joined by Mr. Justice Clark, dissented on the ground that arbitration could not bring about a final resolution of the jurisdictional dispute between the two unions, since one of them, the Federation, would not be a party to the arbitration proceeding. In an opinion concurring with the majority, Mr. Justice Harlan took note of the risk of inconsistent awards by two arbitrators:

"Lacking a clear-cut command in the statute itself, the choice in substance lies between a course which would altogether preclude any attempt at resolving disputes of this kind by arbitration, and one which at worst will expose those concerned to the hazard of duplicative proceedings. The undesirable consequences of the first alternative are inevitable, those of the second conjectural. As between the two, I think the Court at this early stage of experience in this area rightly chooses the latter."

Id. at 273, 84 S.Ct. at 409. The advisability of legal planning to protect an employer from the consequences which the appellant complains of here was suggested in a Note on the decision in Carey :

"An employer can presumably protect himself from the ruling in Carey by contracting with each union for trilateral arbitration in the case of jurisdictional disputes giving rise to a demand for arbitration."

The Supreme Court, 1963 Term, 78 Harv.L.Rev. 143, 285 (1964).11

Indeed in an industry where these disputes arise with considerable frequency and where prompt and uniform resolution is a matter of considerable economic importance, the Building and Construction Trades Department of the AFL-CIO and ten employers' associations have established a Plan for Settlement of Jurisdictional Disputes in the Construction Industry in a national contract, which is commonly incorporated by reference in local collective bargaining agreements. Acmat Corp. v. International Union of Operating Engineers, 442 F. Supp. 772, 774 n.1 (D.Conn.1977). See also, Sheet Metal Workers, Local Union # 49 v. Los Alamos Constructors, Inc., 550 F.2d 1258, 1262-64 (10th Cir. 1977); Bechtel Corp. v. Local 215, Laborers' International Union, 544 F.2d 1207, 1213-14 (3d Cir. 1976); Local 416, Sheet Metal Workers v. Helgesteel Corp., supra, 507 F.2d at 1055-56. See generally, Note, Work-Assignment Disputes Under the National Labor Relations Act, 73 Harv.L.Rev. 1150 (1960).

In addition to a contractual solution to this problem, the Company had the opportunity under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a),12 to require both unions to participate in an initial tripartite arbitration proceeding by seeking an order to do so from a federal court. Although we have not had occasion to pass on the issue and do not do so now, the Second Circuit Court of Appeals, in a thoroughly reasoned opinion, has held that, before bipartite arbitration has begun under either union's agreement, an employer can obtain an order for tripartite arbitration with unions which both claim the same work. Columbia Broadcasting System, Inc. v. American Recording and Broadcasting Association, supra, 414 F.2d at 1329. See also, Bell Aerospace Co. Division of Textron v. Local 516, UAW, 500 F.2d 921, 922 (2d Cir. 1974); Window Glass Cutters League v. American St. Gobain Corp., 428 F.2d 353, 355 (3d Cir. 1970) (dicta). Here the Company's failure to seek that relief before allowing the Pulp Workers' grievance to reach arbitration now prevents it from claiming any injustice in the determination that "the (Company's) agreement with the nonassigned union obligates the (Company) to pay . . . for idleness." Transportation Union, supra, 385 U.S. at 162, 87 S. Ct. at 372.

At several stages the Company made choices as to collective bargaining and litigation strategies. It must now abide the consequences of those choices. The orders of the District Court are affirmed.