in this court's decision in west coast telephone in that case this court held that arbitrate and i quote the arbitration clause of the contract expressly provides that the arbitration angels circumstances we have to defer certainly that's correct your honor but i think this is one of those rare circumstances because the provision in the collective bargaining agreement was not being interpreted and it is unequivocal and absolutely clear this is like this court's decisions for example in the phoenix newspaper case where the arbitration agreement said that the arbitrator could only were the parties to negotiate wages and in fact with the arbitrator did was decided what the amount of the wages should be when the parties couldn't agree that was contrary to express language of the agreement an arbitrator simply cannot do something that the parties have agreed it's beyond the arbitrator's power and the parties here agreed that the arbitrator could not add to the agreement and yet so why did you stipulate to arbitration and on the issue of mutual mistake if the arbitrator had no power to adjudicate that issue well two things first is i do not believe that we stipulated to the determination of mutual mistake he stipulated to give this case to the arbitrator right we didn't stipulate we went to the arbitrator you didn't ok you didn't disagree t the collective bargaining agreement by failing to pay this copper bonus the question submitted to the arbitrator was not whether there was a mutual mistake that of all during the arbitration you ask provision no we did not we said that the arbitrator should not and had no power to do so the union did but we said that the arbitrator had no power to him in the agreement business we're not going to argue this before you we did what we simply said you don't i mean i do it we said you do not have jurisdiction you cannot go for the phone well we we didn't go in and say we want you to decide what your jurisdiction is we simply said you don't have any jurisdiction in this situation and that's exactly what was upheld if you're familiar with the pictures right and so yes your honor think the difference there is that the employer submitted the entire dispy to the arbitrator said you don't have any jurisdiction over this but then went forward and arbitrated the entire dispute we said you can decide whether in the face of it the collective bargaining agreement has been breached but what you cannot do and what you don't have jurisdiction to do anything but under the circumstances of this case i believe that i can go forward and ignore the no ad per show his decision to reef reef form after reformulate or to add to was contrary to the  no i don't think that's correct i think he said what i said i mean i mean it is i think they said basically there is a no ad provision ordinarily i couldn't add anything but under the circumstances here i believe  opponent's brief he says page ten at the outset of the hearing the party stipulated that the matter was properly before the arbitrator and and that the arbitrator had jurisdiction to decide the grievances are you saying that's incorrect they say to the record here and i think it's in i think it's an overstatement of what we said and what the issue was presented to the arbitrator we didn't dispute that the arbitrator three or one ninety seven that the arbitrator dispute the arbitrator could look at the collective bargaining agreement and on its face say whether or not the union had a valid reasons and whether or not we had violated collective bargain but what we did say was the arbitrator in doing that had no jurisdiction to add to the agreement you've got about two minutes left or right i'm just reading from one ninety seven that my friend was able to locate in this so let the arbitrator says so let the record show that the parties have agreed that the matter hearing about that mutual mistake which is almost it almost jumps out from you from there that they have yes they put on evidence we didn't put in the evidence on about mutuals mistake because they said the arbitrator had no jurisdiction if i could add one other thing even if i'm wrong about that and even if that issue was decided by the that is the jurisdictional issue even if we submitted it to the arbitrator and the arbitrator decided it the district court could review that decision it merely under a deferential standard but we submit under that deferential standard the arbitrator's decision to add a provision to the collective bargaining agreement violated the determine the breadth of that yours but even assuming that's what happened we can seek review of that in the standard of review we had mit is a deferential one but the arbitrator doesn't have unlimited power to say  my jurisdiction is whatever i say it is but once he finds a mutual mistake then what remedy could he have other than reforming the contract that he direct the parties to go back in and now we do not believe he had any power to do anything to court under way i got as a telephone yes and you can go to court we don't dispute that the union can go to court this is a question of where is this dispute to be decided is it to be decided under arbitration rules or is it to be decided under court rules and the reason people have these kinds of provisions in arbitration agreement is because they know that if the arbitrator decide something their chances of versing it on appeal are quite limited and therefore they want to limit the power of an arbitrator arbitration is purely a matter of contract it's what the parties agree the arbitrator's powers are and what the parties agree to here was the arbitrator that all that means is that there's a deferential standard of review here it doesn't mean that the question of whether the arbitrator had jurisdiction is waive that you're saying at the time the arbitrator's even if  no provision he cited it as a relevant provision and i didn't see an interpretation of it so maybe you could tell me where i should like to see the interpretation of the no ad provision but you're correct your honor that he did not explicitly state that he was us to rewrite a collective bargaining agreement or ignore its provisions and then he goes on to say but when the party carries what he called its heavy burden of a stab of seeing him use on the stake than it does so he the the question of whether the arbitrator could revise the contract was submitted to him his decision to revise it was contrary to that language of the a and he doesn't enter berthoud language i mean that's the thing that concerns me so maybe you can explain why even under our deferential standard we we would say that that h cannot change any provision it doesn't say the agreement it says you cannot alter any provision of the agreement and the provision of the agreement but unlike west coast telephone it doesn't say the written agreement supplemental agreements so the question of what the agreement is under the no out clause it's really sort of begging the question is the agreement the written document that  that there was here and which asarco does not dispute in its position petition to vacate the award the question then becomes what is the agreement is the agreement the written document that incorrectly in the arbitrators view that th of a stretch well i don't think so in fact the i realise of course of this is not binding on on your honor's but the court in the miami dade public schools case that we cite said that where the union carries a row or a party carries its heavy burden of a stab wishing a mutual mistake then the no then the general purpose principle that arbitrators don't add things doesn't stop me you know i am not familiar enough with his award to say exactly what he said he said  you know he said it and it has been recognized that by by numerous but no arbitrators another authority is the interest of justice and fairness the arbitrator can rewrite a contactor correct what appears to be an to the arbitrator's decision because as the court said most recently in the drive all dynamics case the deference afforded to the awards of labor arbitrator's is something like that have an interest in having you know sound i would question law right because i assume you lose as often as you when sometimes i mean i sometimes more often but i would say that your hon contract for an arbitration provision and agree that the arbitrator is word will be final as they did in this case then both parties have a stake in courts enforcing whatever the arbitrator's decision is right or wrong and well of course that case got no overrule a long line of other panel decision saying it has to be a plausible interpretation of the contract and in this case he didn't even interpret the no ad provision that's pretty hard to say it's pla we certainly agree that the court's review of arbitrator's decision is narrow but the issue here is can an arbitrator simply reject the express words of an a if fact can be that because we know it's the law in other places so the question your job is to persuade us why it should be the law in these spots and are you familiar with the george de case yes that they sign even if the award resulted from a misinterpretation of the law faulty legal reasoning or erroneous legal conclusion isn't that the end of it i don't think so your honor because i believe if you go on and read that decision the court then analyzes under the deferential standard whether the arbitrator's decision is correct or incorrect and uses a plausible and the same thing happened in the orion pictures where the court said law that express provision in collective bargaining agreements can be disregarded by an arbitrator even when he finds that the parties made the mutual mistake in putting that together yes because what happens here is if you say that the no ad provision it's not effective it means that an arbitrator can then do whatever they want to to a collective bargaining agreement virtually without limit because of the deferential standard of review that's why people put these provisions in there to limit what an arbitrator can do how much power the arbitrator has because that power is largely under review and so the parties say yes we'll let you make certain decisions but within these confines this is the limit of your power but if he had said as judge kozinski posed you know i just don't like this provision at all about the copper bonus so i'm going to change it i think you have a good point right but if he says after six day hearing they made a mistake they made a scrivener's mistake in a sense by including this within that pension  clause so i'm going to undo that mistake but look at actually to actually enforce the agreement that the parties made that that's not something crazy that that sounds to me like he's giving it a great deal of thought and is actually trying to effectuate the agreement of the parties is not arbitrators to yes within the confines of the collective bargaining agreement and the confines are you can't add a provision to the agreement thank you