tribe in the union never expressly agreed to arbitrate the issue of erbitux ability and certainly never agreed to arbitrate issues pertaining to employee personnel matters which is why the district court erred in granting respondent united peers motion for judgment ladies the issue of arbitration is to be determined by the court and not an arbitrator courts must decide the issue before compelling arbitration which is consistent with long lines of u s supreme court cases cited in the tribes brief including granite rock versus international brother teamsters a party cannot be required to arbitrate an issue that is not subject to arbitration it is well established that arbitration is a matter of contract and a party cannot be required to submit to arbitration in a dispute which the parties not agree to submit that's for the long lot of us supreme court cases unite here sole claim for relief is to compel arbitration of to employee terminations pursuant to a neutrality agreement called a memorandum of agreement or the m o a the m o a is not a collective bargaining agreement important distinction for the court the tribe in the union never agreed arbitrary employee terminations or other personnel matters but that so that's a dispute over the scope of the agreement that you all entered into and i guess i don't see why that isn't covered that kind of dispute isn't covered by the pretty broad language of the arbitration provision right it says any dispute over the interpretation or application of the agreement is to be and i guess i don't see why that language doesn't compass the very dispute you just referenced sure appreciate that i think that's the least of the distinction between the cases the court asked the parties to further examine which is the granite rock us supreme court decision and the ninth circuit court decision in desert palace the distinction between those two cases is pretty clear desert palace involved a collective bargaining agreement which covered the terms of employment between the union and the and the company covered wages hours all the typical components of a c p a that you would expect to find including an arbitration provision desert palace held it because the parties agreed to principles what's the parties in town and what does agreement say well so there are there are two questions here who should decide whether it's arbitrary to bull and is arbitrate about so i think you're arguing a court should decide whether it's even if we decide this question the phrase in the contract that says any dispute about this contract will be arbitrated isn't enough to say that this dispute needs to be arbitrate it should i think it's rather makes a good point i think that the the first analysis or question is is the dispute subject to arbitration we say it's not because the group it doesn't say that number two the terms of the agreement don't require arbitration or personal matters if the union said how can we tell when they just started so i mean we're in a very odd posture because it happens we now have an award from the arbitrator but when this all started all we knew was that the union was trying to enforce the agreement to remain neutral and at that point the remedy could have been money to the union or a speech with the union it didn't have to have anything to do with reinstatement how do how do we even know that this is a like an employment dispute in the typical sense of have putting someone back in a job and that's the point the which is i missed it we how do we know that the only remedy they were seeking was reinstatement well that they're one of they want to have the termination which is a personal decision arbitrator and the right but maybe the remedy is the union was hurt by the fact that you fired these two employees you should give some money to the union or let the union give a speech or something it didn't wouldn't have to be reinstatement of the employees but the union does represent the employees there are not the right answer and right the union is representing itself saying you weren't neutral you were supposed to be neutral when we were trying to organize and you weren't so why isn't that a dispute about exactly this contract i think you go back to the granite rock decision which which requires the court to examine the tension of the parties and what the contract actually says and if the parties intended to have employment terminations r allowing this case between the union and the casino to go forward would prevent the employees from doing whatever they do on their own capacity i think that's the remedy you're out at that's the that's the problem with having this case arbitrated well because it's a separate arbitration for they have to go through the tribal court process they're separate that's the and the union wants to have it that way but that's not the way it works they want to use the i'm a ways away it's to establish that they've already formed and agreed to have a union at check procedure in any issues regarding any person claiming the other person was not from any neutral this is this far exceeds that and if the party and why is firing someone for supporting the union not an example of a lack of neutrality well that's that's their claim your honor but there's nothing in the erbitux ation agree or in the i'm a way that calls for you know that sort of process to occur where employers if that was the case the union could say any employer that allegedly supports union organizing the separate some adverse actions could then arbitrate their claims of them away that's just not the case that would it shouldn't the tribe then have said that anything that involves specific employees employment needs to be excluded from this because we have a separate no remedy available for employees here it's just just not a lot of the contract and i think that's the big stink she between the holding and in the granite rock decision and desert palace again desert palace focused on the labor agreement was  intertwined the issue of who decides arbitration vs is the claim subject arbitration i think or or intertwined there is no basis in the m o a to arbitrate claims related to employment or personnel matters that was never the intent and if it was it would have said as much in the in the in the i'm away it just doesn't say that so i think the court here should look to the supreme court decisions including grant rock the focus on ter petition of contract what does the agreement say what are the parties host very representing unite here international union i will first answer the court's question regarding granite rock and then i will explain why the court doesn't need to reach that question granite rock did not implicitly over rule desert palace there's obviously two types of disputes about arbitrate billet one is whether the parties made a contract at all and the other occurs when there's no dispute that there is a contract and the question is whether that the parties disagree about is whether the contract requires a particular dispute to be resolved through arbitration the issue before the court in granite rock was the first time there was a dispute about whether a contract had formed because there's a question about whether there was a ratification vote that was a condition of forming that contract now the court also acknowledged in granite rock that the parties could have agreed to submit their contract formation arbitron realty dispute to arbitration and that's on didn't the courts say that the parties had agreed that the district court would filippi that's right in front and then there's a footnote that says if not we would have applied first option so why doesn't that suggest that first options is now the rule for figuring out whether arbiter of realty has been given to the  the reason why your honor is because desert palace was aware of first options it distinctly distinguished it does or palace was our court and granite rock is the supreme court so once the supreme court says we would apply first options in the absence of agreement why doesn't that tell us we were wrong because what you would have to say then is that just by reciting that first principle when it wasn't the issue before the current court and first in granite rock act over it created over ruled ou labor we would be applying first options if not for the parties agreement i don't know what else to make of that footnote so so there is a problem with this or palace it seems to be inconsistent with eighteen to you versus communication workers but first options was aware that case desert house was aware that case announcer palace has been reaffirmed by this court this panel prior panels relied on that principle later panels relied on that principle so it's the law of this court i think it's a stretch to say that granite rocked by reciting that principle even though it wasn't the issue before the court in granite rock overrules desert palace but if the court does conclude the desert palace was implicitly overruled by granite rock then the question is what does the court do and i think it's unnecessary for the court to actually reach that question to use this case to re examine its desert palace precedent and there's three sort of discrete reasons why it's undisputed right this is one of the first principles that a union employer can arbitrator they just have to be clear about it and that's what the parties did here the arbitration clause applies to any dispute about the interpretation or application of the greenman that's the same language that exists in desert palace so at the time the parties made their agreement in two thousand and twelve they used the language that at least in this circuit they said that's how you submit a speech about arbiter billy to the arbitrator ok let's assume we're going to decide to just for a moment whether it's arbiter of all and maybe you can talk about why you think that is why you think you should win anyway even if it's an issue we should decide or is there some reason why we shouldn't decide this because would not be another way to skip the issue is just we just decide the question that's right and that's the second reason i was going to provide there's not really a dispute about arbiter billet here at is about the meaning of paragraph five the neutrality clause did the employer imply opposition to unionizing when it fired chris carey case the union believes it did the employee believes it didn't that's a sort of straightforward question for the arbitrate but the meaning of the contract there's no there's no real dispute about what the arbitration clause means the employer doesn't offer any argument based on the text of the agreement itself about why this dispute about paragraph five a falls outside of that arbitration clause and there isn't aren't any argument to meet the clauses not there's no ambiguity there's nothing excluded so it seems to me that that argument would be stronger if we didn't actually have the award so it seems like this  looked like a dispute between the union and the casino about whether the casino remained neutral and it looks like it was not an individual dispute from those employees until the arbitrator comes along towards reinstatement of those employees which seems like a twist that maybe wouldn't have been necessary  we only arbitrated one employee at this stage so the arbitrator found that by terminating chris carey case the union the employer violated its obligation under five day and one remedy is to post posters throughout the casino's back hallways notifying employees of the award  the other remedy was reinstatement and back pay for mr garratt back pay if there is any back pay after mitigation and and so what the arbitrator says and what we argue to the arbitrator is that's a way to remedy the harm to the union the harm to the union is the sort of corruption of the workplace environment by the employer's act of firing someone because that employee supported the union employees need to know that they can freely support the union and won't be fired for doing so and there will be some consequence if if they are fired for doing so so by by reinstating ordering chris characters to be reinstated and making him whole the arbitrator's effectively remedying the environment in the workplace which is what the harm to the union claim at any time it has no obligation to him its obligation is or it's what it's entitle to do is protect its own rights under the agreement and that's all the union is doing here i would  court is decides that our question of arbitrary realty needs to be addressed by the court and not by the arbitrator that it not remain that question to the district court the court can of course decide the case on any grounds supported by the record  and re manning would undermine federal labor policy that is exists in favor of swift revenue resolution of labor disputes the agreement itself provides for expedited arbitration that's in the arbitration clause the petition actually an award with the casino have any mechanism for challenging that award still to say that the remedy went too far and was beyond what the parties agreed was possible or something like that yes they can petition to  the award or the union can petition to confirm the award in which case those arguments whatever arguments the the employer has would be raised in that context and that is i think the correct procedure will posture of the proof way to raise those issues rather than in this case where those arguments obviously weren't raised below because there was no arbitration award to address at that point in time i i had not come in thinking that we would decide their selves as to whether this under the underline dispute was covered by the agreement so why do you think that we could just not remand and take it on on our own the court can resolve and question john that is why it's so why is it so easy there's no there's your you're looking at the text of the agreement that's all that one needs to look at to decide whether this dispute is arguable that's before the court and every man doing i think would not serve the interests of judicial economy i know i know i know i'm just asking help me understand why the merits question is so easy that we should just take it on ourselves this strikes me going on this strikes me i understand where the tribe is coming from a fight over whether someone was properly terminator and sounds like it's all leagues away from what you guys w contracting about right so i understand what their instinct is but you say no this is plainly covered by a neutrality agreement so why why is it so clear from the text of the agreement because at that issue even if one says well there's something to that argument that's an issue for the  question of arbitron bill if they can argue and they did argue to the arbitrator this is a personnel dispute there's reasons why that's not covered by the agreement that's and that is that's a dispute about what paragraph five a the neutrality clause mean it's not a dispute about what the arbitration clause me which is even if we say doesn't house doesn't apply and the court decides arbitrarily the court is confined to interpret what paragraph ten and arbitration clause means and that clause is quite broad there's no exclusions from it that are that are applicable here there is no ambiguity it's the broad language that the court doesn't palace told the parties to use if they want to submit all the speeds to arbitration and so that's why this court's job even if it were to decide arbi is quite simple the question of whether the parties intended paragraph five eight to preclude the employer from terminating employees for organizing a union is a question about the meaning of paragraph i think if you go back to the steelworkers trilogy cases th supreme court back then was saying even when the court has to decide arbor to ability because there is an arbitration clause that includes some things and excludes others you've got to be really careful not to get into the question of the merits when you're figuring out arbitrarily that's why we have this presumption in favor of arbitration all doubts are resolved in favor of arbitration and it would be good to know of a question like even if we did remained it would if it came back it would all be done over anyway right that's correct counsel what would be the benefit of taking judicial notice of the  referred submitted the request for additional notes because i thought it was important as a matter of candor to let the court know the stage of the proceeding that's why i submitted it but why the entire ward what would be the benefit of us taking judicial what are you asking us to take judicial notice of just the fact that an arbitration award has been entered but not the analysis or anything of the award we we wanted the court to be aware of the with respect to that award and but the issue before this court is whether this him away requires the parties arbitrate the first instance we believe that it is not the other issue in the emma way i want to point out with my limited time and shall give no rise to any claim or liability to any third party other than the parties here to write it so clearly you can't you make that argument to whatever appeal you make of the arbitration award i mean we had no idea that the arbitrator was taking the record here if we did i judicial notice we don't have the arbitration where we have no idea that the arbitrator is going to give any remedy to any third parties to chose the the the fear that we had and we and it turns out you were predicting the future maybe but that's an issue that you could use when you challenge the arbitration award in a separate proceeding do you deny what your opposing counsel said about the ability to challenge arbitration or not that no it's that's what will happen but with respect it was before this court i think this goes also to the what the contract says and what the intent of the parties were that the fact that the tribe is not waiving its sovereign immunity with respect to any third party claims it's pretty clear that there was there was or never contemplated that there be any of personnel actions that could be taken resulting from couldn't the remedy for their claim that you fired these two employees because it's a part of the union be that the union gets to give a speech and the employee gets the employer stands next to the union i don't know what the organizing activities somehow violated the them away that is didn't and i think again he's right these two employees have their their remedies which is through the tribal employment process so i thank you counsel thank you to both council for your