FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASARCO LLC, a limited liability 

corporation,

Petitioner-Appellant,

v.

UNITED STEEL, PAPER AND 

FORESTRY, RUBBER,

MANUFACTURING, ENERGY, ALLIED 

INDUSTRIAL AND SERVICE WORKERS 

INTERNATIONAL UNION, AFL-CIO,

CLC, on behalf of itself and the other

unions representing ASARCO 

LLC’s bargaining unit employees,

Respondent-Appellee.

No. 16-16363

D.C. No.

2:15-cv-00117-

SMM

ORDER AND 

OPINION

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted November 16, 2017

Pasadena, California

Filed December 4, 2018
2 ASARCO V. UNITED STEEL

Before: Richard A. Paez and Sandra S. Ikuta, Circuit 

Judges, and Robert W. Gettleman,* District Judge.

Order;

Opinion by Judge Gettleman;

Dissent by Judge Ikuta

SUMMARY**

Labor Law

The panel filed (1) an order withdrawing its opinion and 

dissenting opinion and denying as moot a petition for 

rehearing en banc, and (2) a new opinion and new dissenting 

opinion.

In its new opinion, the panel affirmed the district court’s 

order affirming an arbitration award in favor of a union, 

which sought relief concerning a bonus provision in the 

parties’ collective bargaining agreement.

The employer asserted that the arbitrator reformed the 

collective bargaining agreement in contravention of a no-add 

provision in the agreement. The district court held that the 

arbitrator was authorized to reform the agreement, despite 

the no-add provision, based on a finding of mutual mistake. 

 * The Honorable Robert W. Gettleman, United States District Judge 

for the Northern District of Illinois, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ASARCO V. UNITED STEEL 3

The panel held that the arbitration award drew its essence 

from the collective bargaining agreement, and the arbitrator 

did not exceed his authority in reforming the agreement. In 

addition, the arbitrator’s award did not violate public policy.

Dissenting, Judge Ikuta wrote that, in light of the no-add 

provision, the arbitrator exceeded his authority under the 

collective bargaining agreement.

COUNSEL

Rex S. Heinke (argued), Akin Gump Strauss Hauer & Feld 

LLP, Los Angeles, California; Lacy Lawrence and Marty L. 

Brimmage, Akin Gump Strauss Hauer & Feld LLP, Dallas, 

Texas; for Petitioner-Appellant.

Michael D. Weiner (argued) and Jay Smith, Gilbert & 

Sackman, Los Angeles, California; Daniel M. Kovalik, 

United Steelworkers, Pittsburgh, Pennsylvania; Gerald 

Barrett, Ward Keenan & Barrett P.C., Phoenix, Arizona; for 

Respondent-Appellee.
4 ASARCO V. UNITED STEEL

ORDER

The opinion and dissenting opinion filed June 19, 2018, 

and appearing at 893 F.3d 621 (9th Cir. 2018), are 

withdrawn. They may not be cited by or to this court or any 

district court of the Ninth Circuit.

A new opinion is filed simultaneously with the filing of 

this order, along with a new dissenting opinion. 

Accordingly, the Appellant’s petition for rehearing en banc 

is DENIED as moot. The parties may file petitions for 

rehearing and petitions for rehearing en banc in response to 

the new opinion, as allowed by the Federal Rules of 

Appellate Procedure.

OPINION

GETTLEMAN, District Judge:

This appeal involves the validity of an arbitration award. 

ASARCO asserts that the award is invalid because the 

arbitrator reformed the Basic Labor Agreement (“BLA”) 

between the Union and ASARCO in contravention of a noadd provision in that agreement. The Union argues that the 

arbitrator did not contravene the no-add provision because 

he was required to reform the BLA upon finding that the 

parties were mutually mistaken as to its terms when they 

agreed to it. The district court affirmed the award, holding 

that ASARCO properly preserved its objection to the 

arbitrator’s jurisdiction, but the arbitrator was authorized to 

reform the BLA, despite the no-add provision, based on a 

finding of mutual mistake. We affirm.
ASARCO V. UNITED STEEL 5

I. BACKGROUND AND PROCEDURAL HISTORY

ASARCO is a miner, smelter, and refiner of copper and 

other precious metals with facilities in Arizona and Texas. 

ASARCO’s employees are represented by the Union. 

ASARCO and the Union are parties to the BLA, which was 

originally effective January 1, 2007, through June 30, 2010. 

The BLA was modified and extended through two 

Memoranda of Agreement (“MOA”) negotiated in 2010 and 

2011. Article 9, Section B of the BLA provides that a 

Copper Price Bonus (“Bonus”) will be paid quarterly to 

employees who participate in ASARCO’s pension plan. The 

Bonus is calculated based on the price of copper and is 

significant, at times as much as $8,000 annually per 

employee. The 2011 MOA modified Article 12, Section Q 

of the BLA to make employees hired on or after July 1, 2011

ineligible for ASARCO’s pension plan, and thus ineligible 

for the Bonus. The Union, unaware of the link between the 

pension plan and the Bonus,1 filed a grievance disputing 

ASARCO’s refusal to pay the Bonus to employees hired 

after July 1, 2011. The case proceeded to arbitration.2

At the beginning of the arbitration hearing the parties 

stipulated that the matter was properly before the arbitrator 

and that the arbitrator had jurisdiction to decide the 

grievance. The Union claimed there was a mutual mistake 

in the 2011 MOA: the parties failed to recognize that Article 

 1 It is undisputed that the parties did not discuss the Bonus when 

negotiating the 2011 MOA, and neither party indicated that the Bonus 

would be impacted in any way by the modification.

2 Article 5, Section 1 of the BLA provides that all disputes between 

the parties as to “the interpretation or application of, or compliance with 

the provisions . . .” of the BLA or MOAs are to be resolved through a 

grievance procedure that culminates in arbitration.
6 ASARCO V. UNITED STEEL

9, Section C of the BLA tied eligibility for the Bonus to 

participation in the pension plan, and both parties intended 

for all employees to remain eligible for the Bonus when they 

negotiated the 2011 MOA. Accordingly, the Union argued 

that reformation of the BLA was the appropriate remedy. 

ASARCO offered no evidence to the contrary, but argued 

that the arbitrator lacked authority to reform the BLA 

because Article 5, Section I(6)(c) contained the following 

no-add provision: “The arbitrator shall not have jurisdiction 

or authority to add to, detract from or alter in any way the 

provisions of this Agreement.” After hearing six days of 

evidence the arbitrator concluded that neither party 

anticipated that the 2011 MOA modification would impact 

new hires’ eligibility for the Bonus. Because he found that 

the parties were mutually mistaken as to the terms of the 

2011 MOA, the arbitrator ordered that the BLA be reformed

to provide that new hires, though ineligible for ASARCO’s 

pension plan, remain eligible for the Bonus.

ASARCO filed a Petition to Vacate Arbitration Award 

in the United States District Court for the District of Arizona. 

ASARCO did not challenge the arbitrator’s findings of fact 

or conclusions of law, but argued that the no-add provision 

deprived the arbitrator of authority to reform the BLA. The 

district court confirmed the arbitration award, but rejected 

the Union’s argument that ASARCO had waived any 

argument regarding the limits of the arbitrator’s jurisdiction. 

In confirming the award, the district court noted the degree 

of deference due to the arbitrator’s decision and concluded 

that the arbitrator did not violate the no-add provision 

because the reformation corrected a defect in the BLA, 

which was the product of mutual mistake, to reflect the terms 

the parties had agreed upon. ASARCO timely appeals.
ASARCO V. UNITED STEEL 7

II. STANDARD OF REVIEW

Our review of a district court’s decision confirming an 

arbitration award is de novo. Hawaii Teamsters & Allied 

Workers Union, Local 996 v. United Parcel Serv., 241 F.3d 

1177, 1180 (9th Cir. 2001). “Our review of labor arbitration 

awards is, however, extremely deferential because ‘courts do 

not sit to hear claims of factual or legal error by an arbitrator 

as an appellate court does in reviewing decisions of lower 

courts.’” Id. (quoting United Paperworkers Int’l Union, 

AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S. Ct. 364, 98 

L. Ed. 2d 286 (1987)) (internal alterations omitted). Unless 

the arbitrator has “‘dispensed his own brand of industrial 

justice’ by making an award that does not ‘draw its essence 

from the collective bargaining agreement,’” we must 

confirm the award. Id. at 1181 (quoting United Steelworkers 

v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 

S. Ct. 1358, 4 L. Ed. 2d 1424 (1960)) (internal alterations 

omitted).

The context of collective bargaining warrants this 

extremely limited scope of review because the parties have 

agreed to have their disputes decided by an arbitrator chosen 

by them: “[I]t is the arbitrator’s view of the facts and of the 

meaning of the contract that they have agreed to accept.” Id. 

“Indeed, the mandatory and prearranged arbitration of 

grievances is a critical aspect of the parties’ bargain, the 

means through which they agree ‘to handle the anticipated 

unanticipated omissions of the collective bargaining 

agreement.’” Stead Motors of Walnut Creek v. Auto. 

Machinists Lodge No. 1173, Int’l Ass’n of Machinists & 

Aerospace Workers, 886 F.2d 1200, 1205 (9th Cir. 1989) (en 

banc) (quoting St. Antoine, Judicial Review of Labor 

Arbitration Awards: A Second Look at Enterprise Wheel and 

Its Progeny, 75 Mich.L.Rev. 1137, 1140 (1977)) (“Judicial 
8 ASARCO V. UNITED STEEL

Review”) (internal alterations omitted). Such omissions 

occur because “[u]nlike the commercial contract, which is 

designed to be a comprehensive distillation of the parties’ 

bargain, the collective bargaining agreement is a skeletal, 

interstitial document.” Id.

Consequently, “[t]he labor arbitrator is the person the 

parties designate to fill in the gaps; for the vast array of 

circumstances they have not considered or reduced to 

writing, the arbitrator will state the parties’ bargain.” Id. He 

is “‘their joint alter ego for the purpose of striking whatever 

supplementary bargain is necessary’ to handle matters 

omitted from the agreement.” Id. (quoting Judicial Review, 

75 Mich.L.Rev. at 1140). Because of this role, the arbitrator 

“cannot ‘misinterpret’ a collective bargaining agreement,” 

id., and “even if we were convinced that the arbitrator 

misread the contract or erred in interpreting it, such a 

conviction would not be a permissible ground for vacating 

the award.” Va. Mason Hosp. v. Wash. State Nurses Ass’n, 

511 F.3d 908, 913‒14 (9th Cir. 2007) (footnote omitted). 

This deference applies “‘even if the basis for the arbitrator’s 

decision is ambiguous and notwithstanding the 

erroneousness of any factual findings or legal conclusions.’” 

Federated Dep’t Stores v. United Foods & Commercial 

Workers Union, Local 1442, 901 F.2d 1494, 1496 (9th Cir. 

1990) (quoting Stead Motors, 886 F.2d at 1209).

III. ANALYSIS

Although judicial review of arbitration awards is 

extremely limited, the Supreme Court and this Circuit have 

articulated three exceptions to the general rule of deference 

to an arbitrator’s decision: “(1) when the arbitrator’s award 

does not draw its essence from the collective bargaining 

agreement and the arbitrator is dispensing his own brand of 

industrial justice; (2) when the arbitrator exceeds the 
ASARCO V. UNITED STEEL 9

boundaries of the issues submitted to him; and (3) when the 

award is contrary to public policy.” Id. (internal quotation 

marks omitted).

Given the great deference due to arbitrator’s decisions, 

ASARCO wisely does not challenge the arbitrator’s findings 

of fact or conclusions of law, but instead argues that the 

arbitrator’s award does not warrant deference based on all 

three exceptions. The first two exceptions are interrelated, 

and we will address them simultaneously before turning to 

the third exception. ASARCO argues that the no-add 

provision in the BLA deprived the arbitrator of authority to 

reform the BLA, and the arbitrator’s award does not draw its 

essence from the BLA because it ignores this provision.

In deciding whether the arbitrator’s award draws its 

essence from the BLA, “the quality – that is the degree of 

substantive validity – of [his] interpretation is, and always 

has been, beside the point.” Sw. Reg’l Council of Carpenters 

v. Drywall Dynamics, Inc., 823 F.3d 524, 532 (9th Cir. 

2016), cert. denied, 137 S. Ct. 829, 197 L. Ed. 2d 68 (2017). 

“Instead, the appropriate question for a court to ask when 

determining whether to enforce a labor arbitration award 

interpreting a collective bargaining agreement is a simple 

binary one: Did the arbitrator look to and construe the 

contract, or did he not?” Id. This is because “‘[i]t is only 

when the arbitrator strays from interpretation and application 

of the agreement and effectively dispenses his own brand of 

industrial justice that his decision may be unenforceable.’” 

Id. at 531 (quoting Major League Baseball Players Ass’n v. 

Garvey, 532 U.S. 504, 509, 121 S. Ct. 1724, 149 L. Ed. 2d 

740 (2001)) (internal alterations omitted). Accordingly, “the 

court’s inquiry ends” if the arbitrator “made any 

interpretation or application of the agreement at all.” Id. at 

531‒32. We therefore “must limit [our] review to whether 
10 ASARCO V. UNITED STEEL

the arbitrator’s solution can be rationally derived from some 

plausible3 theory of the general framework or intent of the 

agreement.” United Food & Commercial Workers Int’l 

Union, Local 588 v. Foster Poultry Farms, 74 F.3d 169, 173 

(9th Cir. 1995), opinion amended on denial of reh’g, (9th 

Cir. Jan. 30, 1996).

We have no doubt that the arbitrator’s decision was 

grounded in his reading of the BLA. The arbitrator 

acknowledged that new hires were not entitled to the Bonus 

under the plain language of the BLA and that he could not 

find for the Union based solely on the language contained in 

the BLA. He also recognized that arbitrators do not generally 

have the authority to rewrite CBAs or ignore their 

provisions. He noted, however, that arbitrators can reform a 

contract to correct an obvious mutual mistake. Citing a 

substantial amount of evidence that he heard over six days, 

the arbitrator concluded that the parties presented precisely 

this scenario: in negotiating the 2011 MOA, they never 

discussed or even acknowledged that if the BLA were 

amended to make new hires ineligible for the pension plan, 

they would also be ineligible for the Bonus. Although he did 

not specifically cite the no-add provision when explaining 

the basis of his award, the arbitrator did quote it directly as 

relevant language of the BLA and noted that, absent a 

 3 As the parties note, this Court has retired the use of the term 

“plausibility” when describing judicial review of labor arbitration 

awards. See Drywall Dynamics, 823 F.3d at 532. This step was taken 

not to “propose any substantive change to the settled law in this area,” 

but rather to underscore the limited nature of the inquiry, which is 

whether “the arbitrator look[ed] at and construe[d] the contract.” Id.
ASARCO V. UNITED STEEL 11

finding of mutual mistake, he would not have the authority 

to reform the BLA.4

Given the arbitrator’s extensive treatment of the BLA 

and acknowledgment of the no-add provision, we agree with 

the district court that the arbitrator’s decision was grounded 

in his reading of the BLA, and are “bound to enforce the 

award” even if “the basis for the arbitrator’s decision may be 

ambiguous.” W.R. Grace & Co. v. Local Union 759, Int’l 

Union of United Rubber, Cork, Linoleum & Plastic Workers 

of Am., 461 U.S. 757, 764, 103 S. Ct. 2177, 2182, 76 L. Ed. 

2d 298 (1983); see also Drywall Dynamics, 823 F.3d at 

533(“‘[A]rbitrators have no obligation to give their reasons 

for an award at all,’” and a court may not “‘infer the nonexistence of a particular reason merely from the award’s 

silence on a given issue.’”) (quoting Stead Motors, 886 F.2d 

at 1208, 1213); Stead Motors, 886 F.2d at 1208 (“‘[M]ere 

ambiguity in the opinion accompanying an award, which 

permits the inference that the arbitrator may have exceeded 

his authority, is not a reason for refusing to enforce the 

award.’”) (quoting Enterprise Wheel, 363 U.S. at 598, 80 

S. Ct. at 1361).

Upon concluding that the parties were mutually mistaken 

as to the impact of the 2011 MOA on new hires’ eligibility 

for the Bonus, the arbitrator was authorized to reform the

CBA despite ASARCO’s protest. The standard arbitration 

clause in the BLA provided that the arbitrator had authority 

 4 Respectfully, the dissenting opinion is incorrect when it states that 

the arbitrator failed to discuss, or even mention, the no-add provision. In 

fact, the arbitrator discussed the no-add provision at length on pages 14 

and 16 of the arbitration award, quoting it directly, and discussing the 

parties’ positions regarding its impact. The arbitrator then 

acknowledged that he lacked authority to rewrite the BLA or ignore its 

provisions absent a finding of mutual mistake.
12 ASARCO V. UNITED STEEL

to decide all issues of contract interpretation, which, of 

course, would include the scope of the no-add provision. 

Additionally, the arbitrator was not strictly bound only to the 

provisions of the BLA in crafting a remedy, because “the 

arbitrator is entitled, and is even expected, to range afield of 

the actual text of the collective bargaining agreement he 

interprets.” Stead Motors, 886 F.2d at 1206. The arbitrator 

was entitled to rely on a number of resources, including 

“‘statutes, case decisions, principles of contract law, 

practices, assumptions, understandings, [and] the common 

law of the shop’” in his effort to give meaning to the BLA. 

Hawaii Teamsters, 241 F.3d at 1183 (quoting McKinney v. 

Emery Air Freight Corp., 954 F.2d 590, 595 (9th Cir. 1992)).

Applying ordinary principles of contract law, the 

arbitrator concluded that the proper remedy for the parties’ 

mutual mistake was to reform the BLA to make it reflect the 

terms the parties actually agreed upon. See Caliber One 

Indem. Co. v. Wade Cook Fin. Corp., 491 F.3d 1079, 1083 

(9th Cir. 2007) (reformation of contract is warranted to 

correct mutually mistaken terms). Even if we were to 

conclude otherwise, “where it is contemplated that the 

arbitrator will determine remedies for contract violations 

that he finds, courts have no authority to disagree with his 

honest judgment in that respect.” Misco, 484 U.S. at 38, 108 

S. Ct. at 371. Because the arbitrator was construing the BLA

in light of the evidence presented to him and basic principles 

of contract law, his decision and award are due great 

deference. See W.R. Grace, 461 U.S. at 765, 103 S. Ct. at 

2183 (“Regardless of what our view might be of the 

correctness of [the arbitrator’s] contractual interpretation, 

[ASARCO] and the Union bargained for that interpretation. 

A federal court may not second-guess it.”) (citation omitted). 

Although we could conceivably have reached a different 

result if we were to interpret the BLA ourselves, we 
ASARCO V. UNITED STEEL 13

conclude that the arbitrator’s award drew its essence from 

the BLA.

The cases ASARCO cites to support its argument that the 

no-add provision left the arbitrator powerless to remedy 

what he found to be an obvious mutual mistake fail to do so. 

First, ASARCO tells us that we need look only to one case 

to vacate the arbitrator’s award: West Coast Telephone. W. 

Coast Tel. Co. v. Local Union No. 77, Int’l Bhd. of Elec. 

Workers, AFL-CIO, 431 F.2d 1219 (9th Cir. 1970). In West 

Coast Telephone the employer sought to reform its CBA 

because it contained wage schedules for certain employees 

that reflected wages higher than what the employer and 

Union had agreed upon when bargaining. Id. at 1220. The 

employer was made aware of this discrepancy when the 

Union filed a grievance because the employees were being 

paid the agreed upon wage rather than the higher wage 

contained in the CBA. Id. The Union requested the dispute 

be submitted to arbitration under the terms of the CBA, but 

the company refused to arbitrate and instead filed suit in the 

district court seeking reformation. Id. The Union moved to 

compel arbitration. The district court denied the motion, and 

the Union appealed. Id. This court, without any explanation,

affirmed:

[T]he company seeks a change in the terms of 

the written agreement. It can be said with 

positive assurance that such an issue is not 

arbitrable under the agreement in question. 

The arbitration clause of the contract 

expressly provides that the arbitrator ‘shall 

have no power to destroy, change, add to or 

delete from its terms.’

Id. at 1221.
14 ASARCO V. UNITED STEEL

ASARCO’s reliance on West Coast Telephone is 

misplaced. West Coast Telephone did not grapple with 

courts’ deference to arbitrators’ decisions, nor did it hold that 

arbitrators may never, under any circumstances, reform 

contracts that contain no-add provisions.5 It simply held that 

the issue of contract reformation was not arbitrable under the 

facts of that case because the contract contained a no-add 

provision. That question is not before this court. Indeed, 

neither the district court nor this court in West Coast 

Telephone ever indicated whether the arbitration clause 

provided that the arbitrator was to decide all issues of 

contract interpretation. ASARCO attempts to discard this 

difference as one of inconsequential procedural posture, but 

here procedural posture makes all the difference. Having 

submitted the grievance to the arbitrator, and having argued 

to the arbitrator that the contract limited his authority to 

fashion a remedy, ASARCO must now somehow overcome 

the deference that is afforded the arbitrator’s decision. West 

Coast Telephone does not help in that regard.

Even if this court were in the same posture as the court 

in West Coast Telephone, we would still defer to the 

arbitrator’s determination of whether and the extent to which 

the no-add provision limited the arbitrator’s ability to 

fashion a remedy. Int’l Assoc. of Machinists v. Howmet 

Corp., 466 F.2d 1249, 1252–53 (9th Cir 1972) (“a clause 

limiting the power of the arbitrator to add to, subtract from, 

or alter the provisions of the agreement does not affect the 

jurisdiction of the arbitrator, but merely limits his power to 

fashion an award.”) (citing Tobacco Workers Int’l Union, 

 5 West Coast Telephone did suggest that reformation is the 

appropriate remedy when the provisions of a contract do not reflect the 

parties’ agreed upon terms. See West Coast Telephone, 431 F.2d at 

1221‒22.
ASARCO V. UNITED STEEL 15

Local 317 v. Lorillard Corp., 448F.2d 949, 955 (4th Cir. 

1971)); see also Kraft Foods, Inc. v. Office and Prof’l 

Employees Int’l Union, AFL-CIO, CLC, Local 1295, 203 

F.3d 98, 101 (1st Cir. 2000) (“While courts disagree on the 

extent to which a ‘no-modification’ clause bars arbitrators 

from looking beyond the language of the agreement to 

determine breach, courts agree that ‘the fashioning of an 

appropriate remedy is not an addition to the obligations 

imposed by the contract.’”) (quoting Tobacco Workers Int’l 

Union, 448 F.2d at 956).

In the instant case, the dispute between the parties was 

unquestionably arbitrable. ASARCO argued to the 

arbitrator that he lacked contractual authority to fashion an 

award. The arbitrator disagreed. His decision is entitled to 

deference.

The other cases cited by ASARCO are equally inapt, if 

not more so. Not one of them concerns a mutual mistake 

made by two parties who have agreed to submit their dispute 

to an arbitrator, or what the proper remedy would be in such 

a situation. For the reasons discussed above, these facts 

matter. Additionally, ASARCO faults the Union for not 

seeking reformation of the BLA in the district court, but 

ASARCO knew all along that the Union sought reformation. 

It did not and now cannot present the issue to this court and 

hope for a better outcome.

Finally, ASARCO argues that the arbitrator’s award 

should be vacated because it violates public policy. The 

Union argues that ASARCO waived this argument by failing 

to present it in the district court. ASARCO concedes this 

fact, but urges that an argument first raised on appeal is not 

waived when the issue is purely one of law and the opposing 

party will not be prejudiced. See United States v. Carlson, 

900 F.2d 1346, 1349 (9th Cir. 1990). Regardless of whether 
16 ASARCO V. UNITED STEEL

ASARCO’s argument is waived, it fails. 6 There is “a very 

limited ‘public policy exception’ to the stringent rule 

ordinarily requiring courts’ enforcement of arbitrators’ 

decisions interpreting and applying collective bargaining 

agreements.” Drywall Dynamics, 823 F.3d at 533 (citations 

omitted). Under this exception “a court may vacate an 

arbitration award that ‘runs contrary to an explicit, welldefined, and dominant public policy, as ascertained by 

reference to positive law and not from general considerations 

of supposed public interests.’” Id. at 534 (quoting E. 

Associated Coal Corp. v. United Mine Workers of Am., Dist. 

17, 531 U.S. 57, 63, 121 S. Ct. 462, 148 L. Ed. 2d 354 

(2000)) (internal alterations omitted).

According to ASARCO, the public policy interest served 

by the collective bargaining process demands that the award 

be vacated because courts should not confirm arbitration 

awards that distort the product of collective bargaining – the 

Collective Bargaining Agreement. Assuming ASARCO has 

stated an “explicit, well-defined, and dominant public 

policy,” its argument still fails for a very simple reason. The 

arbitrator did not distort the BLA; he reformed it so that it no 

longer distorted the agreement that the parties made during 

collective bargaining. For the reasons discussed above, the 

arbitrator was authorized to do so upon finding the parties 

were mutually mistaken about the terms they agreed to. The 

award does not violate public policy.

 6 In light of our disposition, we need not address the Union’s 

alternative waiver argument. Further, as we point out in the text, the 

parties stipulated that the matter was properly before the arbitrator and 

that the arbitrator had jurisdiction to decide the grievance, supra section 

I. There is therefore no need for us to address the dissent’s discussion of 

this issue. See Dissent at section II.
ASARCO V. UNITED STEEL 17

We conclude that the arbitrator was acting within his 

authority when he crafted a remedy to cure the parties’ 

mutual mistake.

AFFIRMED.

IKUTA, Circuit Judge, dissenting:

The “no-add” language in the collective bargaining 

agreement (the Basic Labor Agreement, or BLA) signed by 

ASARCO and United Steel (the Union) is unmistakably 

clear:

The arbitrator shall not have jurisdiction or 

authority to add to, detract from or alter in 

any way the provisions of this Agreement.

And yet, in defiance of this plain language, the majority 

holds today that the arbitrator does have the authority to 

rewrite the terms of the agreement under the circumstances 

of this case.

The majority’s conclusion is flat wrong. First, ASARCO 

did not clearly and unmistakably agree to let the arbitrator 

decide the scope of his own authority, and so the arbitrator 

lacked the power to decide whether the BLA authorized him 

to rewrite the BLA. Second, when mistakenly exercising 

authority he did not have, the arbitrator reached the wrong 

answer: the no-add provision makes clear that the arbitrator 

does not have the power to rewrite the BLA. Because the 

arbitrator ignored the no-add provision, his award fails to 

draw its essence from the BLA and is invalid. I dissent from 

the majority’s contrary conclusion.
18 ASARCO V. UNITED STEEL

I

ASARCO and the Union are parties to a collective 

bargaining agreement, the BLA, which provides for the 

arbitration of grievances. The BLA explains the scope of the 

arbitrator’s authority as follows: 

The member of the Board [of Arbitration] 

chosen in accordance with Paragraph 7(a) 

below [providing for selection on a case-bycase basis] shall have the authority to hear 

and decide any grievance appealed in 

accordance with the provisions of the 

grievance procedure.

The BLA includes a “no add” provision that limits the 

arbitrator’s authority: “The arbitrator shall not have 

jurisdiction or authority to add to, detract from or alter in any 

way the provisions of this Agreement.”

A different section of the BLA provides that certain 

employees are entitled to a Copper Price Bonus, a quarterly 

bonus based on the price of copper. Only those employees 

covered by the pension plan are eligible for the Copper Price 

Bonus. When the BLA was updated in 2011, the Union and 

ASARCO added the following language:

Employees hired on and after the Effective 

Date [July 1, 2011] are not eligible to 

participate in the pension plan.

A dispute between ASARCO and the Union arose after 

the 2011 BLA was signed. Because the new employees were 

not covered by the pension plan, ASARCO took the position 

they were not eligible for the Copper Price Bonus. The 
ASARCO V. UNITED STEEL 19

Union disagreed and filed a grievance, which the parties 

submitted to arbitration.

The subsequent arbitration decision set forth a statement 

of the issue and summarized the positions of each party. 

According to the arbitration decision, the parties were unable 

to agree upon a statement of the issue before the arbitrator, 

and instead agreed to allow the arbitrator to frame the issue. 

The arbitrator determined that the proper statement of the 

issue was:

Are employees hired on and after July 1, 

2011 entitled to receive the Copper Price 

Bonus?

The Union’s position in arbitration was that there was a 

mutual mistake which required a reformation of the BLA. 

Both parties had failed to recognize that eliminating the 

pension plan for new employees would make them ineligible 

for the Copper Price Bonus, the Union claimed, and neither 

party intended this result. Therefore, according to the Union, 

the BLA must be reformed to make such new employees 

eligible, and the no-add provision did not prevent this.

ASARCO’s position in arbitration was that the BLA 

clearly states that new employees are not eligible for the 

Copper Price Bonus, and the arbitrator must give effect to 

the BLA as written. With respect to the Union’s preferred 

remedy of reformation, ASARCO asserted that the arbitrator 

does not have the authority under the clear language of the 

BLA to order that new employees be made eligible for the 

Copper Price Bonus or to rewrite the BLA to make them 

eligible for the bonus. According to ASARCO, “a mistake 

does not authorize an arbitrator to exceed the authority 
20 ASARCO V. UNITED STEEL

granted to the arbitrator and limited by the parties 

themselves.”1

Without addressing ASARCO’s position that the 

arbitrator lacked authority to rewrite the BLA, and without 

any discussion of the no-add provision or the limits of his 

jurisdiction, the arbitrator amended the pension provision to 

include five additional lines of text:

Employees hired on and after the Effective 

Date are not eligible to participate in the 

pension plan. However, the Company shall 

treat such Employees as if they were accruing 

Continuous Service under the Retirement 

Income Plan for Hourly Rated Employees of 

ASARCO Inc. on the same terms as other 

Employees, only for purposes of determining 

eligibility for the Copper Price Bonus 

pursuant to Article 9, Section C.5 of the BLA.

In reaching this conclusion, the arbitrator doubly erred. 

First, whether the arbitrator had the authority to resolve the 

parties’ dispute over the no-add provision is an issue for 

judicial determination unless the parties clearly and 

unmistakably provide otherwise. The arbitrator erred in 

implicitly concluding he had such authority. Second, the 

arbitrator’s decision to rewrite the BLA does not “draw its 

essence from the collective bargaining agreement,”

Federated Emp’rs of Nev., Inc. v. Teamsters Local No. 631, 

 1 ASARCO reiterated this same position in its opening statement 

before the arbitrator. It asserted that the arbitrator had no jurisdiction to 

“add to or detract from or alter in any way the provisions of the 

agreement,” and urged the arbitrator to reject the Union’s argument that 

the arbitrator should reform the contract.
ASARCO V. UNITED STEEL 21

600 F.2d 1263, 1264 (9th Cir. 1979). For both reasons, the 

arbitrator’s award is unenforceable.

II

The arbitrator’s first and most crucial error was his 

implicit conclusion that he could resolve ASARCO’s 

argument about the scope of his authority. The majority 

compounds this error by silently assuming the same.

A

It is a “fundamental principle that arbitration is a matter 

of contract.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 

67 (2010). Accordingly, “a party cannot be required to 

submit to arbitration any dispute which he has not agreed so 

to submit.” United Steelworkers of Am. v. Warrior & Gulf 

Nav. Co., 363 U.S. 574, 582 (1960); see also Granite Rock 

Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 299 (2010) 

(“[T]he first principle that underscores all of our arbitration 

decisions: Arbitration is strictly ‘a matter of consent.’”). 

Thus, arbitration “is a way to resolve those disputes—but 

only those disputes—that the parties have agreed to submit 

to arbitration.” First Options of Chi., Inc. v. Kaplan,

514 U.S. 938, 943 (1995).

First Options considered three types of disputes that 

might be submitted to an arbitrator. First, the parties may 

have a disagreement about the merits of one or several issues 

(the “Merits Question”). Second, they may disagree about 

whether their contract required them to arbitrate the merits 

of such issues (the “Arbitrability Question”). Third, they 

may disagree about whether a court or the arbitrator should 

decide the Arbitrability Question, i.e., the question whether 

the arbitrator has authority to decide that the parties agreed 

to arbitrate a specific dispute. Id. at 942. Because this third 
22 ASARCO V. UNITED STEEL

species of dispute raises the question whether the parties 

delegated the arbitrability decision to the arbitrator, it is 

sometimes referred to as the “Delegation Question.” The 

Supreme Court held that the arbitrability of any of these 

issues depends upon whether the parties agreed to submit the 

issue to the arbitrator. Id. at 944. This applies equally to the 

Delegation Question: If the parties disagree about whether 

the arbitrator should decide whether a particular dispute is 

arbitrable, the question “‘who has the primary power to 

decide arbitrability’ turns upon what the parties agreed about 

that matter.” Id. at 943.

The Supreme Court has recognized that the third 

question—whether the parties agreed to let the arbitrator 

decide the arbitrability of a particular dispute (the Delegation 

Question)—“is rather arcane.” Id. at 945. Because “[a] 

party often might not focus upon that question or upon the 

significance of having arbitrators decide the scope of their 

own powers,” courts should not interpret a contract’s 

“silence or ambiguity” on the Delegation Question as giving 

arbitrators the power to decide whether a specified question 

falls within their arbitral authority. Id. “[D]oing so might 

too often force unwilling parties to arbitrate a matter they 

reasonably would have thought a judge, not an arbitrator, 

would decide.” Id. As a result, unless the parties’ contract 

“clear[ly] and unmistakabl[y]” provides that the arbitrator 

will decide whether the parties agreed to arbitrate a 

particular issue, a court will decide that question. Id. at 944; 

see also AT&T Techs., Inc. v. Commc’ns Workers of Am., 

475 U.S. 643, 648 (1986) (holding that “the question of 

arbitrability—whether a collective-bargaining agreement 

creates a duty for the parties to arbitrate the particular 

grievance—is undeniably an issue for judicial 

determination”); Oracle Am., Inc. v. Myriad Grp. A.G., 

724 F.3d 1069, 1072 (9th Cir. 2013) (holding that “whether 
ASARCO V. UNITED STEEL 23

the court or the arbitrator decides arbitrability is ‘an issue 

for judicial determination unless the parties clearly and 

unmistakably provide otherwise’”).2

First Options emphasized that courts should not be overeager to find the requisite “clea[r] and unmistakabl[e]” 

evidence of consent to arbitrate the question whether a 

particular issue is arbitrable. 514 U.S. at 944. “[M]erely 

arguing the arbitrability issue to an arbitrator does not 

indicate a clear willingness to arbitrate that issue.” Id. at 

946. Clear and unmistakable consent cannot be implied 

from arguing arbitrability to the arbitrator because such 

conduct does not evince “a willingness to be effectively 

bound by the arbitrator’s decision on that point.” Id. Indeed, 

insofar as a party “forcefully object[s] to the arbitrators 

deciding their dispute . . . one naturally would think that they 

did not want the arbitrators to have binding authority over 

them.” Id. Said otherwise, the parties must expressly agree 

that the arbitrator (rather than a court) will decide the 

arbitrability of a particular issue; a court may not infer that 

the parties have given the arbitrator authority to decide the 

Delegation Question merely because they argued about it 

before the arbitrator.

Before First Options, we had adopted a different rule. 

See George Day Constr. Co. v. United Bhd. of Carpenters & 

Joiners of Am., Local 354, 722 F.2d 1471, 1475 (9th Cir. 

 2 By contrast, when “the parties have a contract that provides for 

arbitration of some issues,” a court presumes the parties intended to 

arbitrate related issues, First Options, 514 U.S. at 945. There is a “liberal 

federal policy favoring arbitration agreements,” pursuant to which, 

“doubts concerning the scope of arbitrable issues should be resolved in 

favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. 

Corp., 460 U.S. 1, 24–25 (1983). But “federal policy in favor of 

arbitration does not extend to deciding questions of arbitrability.” Oracle 

Am., Inc., 724 F.3d at 1072. 
24 ASARCO V. UNITED STEEL

1984). George Day held that when the parties argue about 

both the merits of the dispute, and about whether the 

arbitrator has the authority to decide that dispute, “and the 

case is submitted to the arbitrator for decision,” then “the 

parties have consented to allow the arbitrator to decide the 

entire controversy, including the question of arbitrability.” 

Id. In other words, under George Day, if the parties argued 

the Merits Question and the Arbitrability Question before the 

arbitrator, we conclude that they tacitly agreed to let the 

arbitrator decide the Delegation Question.

We adhered to this rule in the labor context even after 

First Options was decided. See United Bhd. of Carpenters 

& Joiners of Am., Local No. 1780 v. Desert Palace, Inc., 

94 F.3d 1308, 1311 (9th Cir. 1996). Desert Palace reasoned 

that First Option’s holding applied only in the commercial 

context, not “in the collective bargaining context, where 

there is a strong federal policy favoring arbitration of labor 

disputes.” Id. at 1312 (emphasis omitted); see also Tristar 

Pictures, Inc. v. Dir.’s Guild of Am., Inc., 160 F.3d 537, 540 

(9th Cir. 1998); Pacesetter Constr. Co. v. Carpenters 46 N. 

Cal. Ctys. Conference Bd., 116 F.3d 436, 439 (9th Cir. 

1997).

But Granite Rock superseded Desert Palace. In Granite 

Rock, the Supreme Court “reemphasize[d] the proper 

framework for deciding when disputes are arbitrable under 

[its] precedents,” and noted that “[i]t is well settled in both 

commercial and labor cases” that “a court may order 

arbitration of a particular dispute only where the court is 

satisfied that the parties agreed to arbitrate that dispute.” Id.

at 296–97 (citing First Options, 514 U.S. at 943; AT&T 

Tech., 475 U.S. at 648–649) (first emphasis added). Further, 

the Supreme Court stated that “the rule requiring ‘clear and 

unmistakable’ evidence of an agreement to arbitrate 
ASARCO V. UNITED STEEL 25

arbitrability” would apply to the labor dispute at issue in 

Granite Rock, but for the fact that the parties had already 

conceded that a court should decide the question of 

arbitrability. Id. at 297 n.5 (quoting First Options, 514 U.S. 

at 944).

Because George Day is “clearly irreconcilable” with 

Granite Rock and First Options, it has been “effectively 

overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 

2003) (en banc). Thus, the principles laid out in AT&T, First 

Options, and Granite Rock (that a court must decide the 

Delegation Question absent clear and unmistakable evidence 

that the parties authorized the arbitrator to decide that 

question) are controlling.

B

The application of the Supreme Court’s precepts to the 

facts of this case is relatively straightforward. Applying 

First Options’s framework, there were two disputes 

regarding the merits. ASARCO and the Union disputed both 

whether new employees were entitled to the Copper Price 

Bonus and whether the arbitrator had the authority to revise 

the BLA. Both of these issues are Merits Questions. While 

ASARCO agreed that it would arbitrate the dispute over the 

Copper Price Bonus, it did not agree to arbitrate its dispute 

about whether the arbitrator had the authority to revise the 

BLA (the Arbitrability Question). Rather, ASARCO 

repeated its position that the arbitrator had no such authority. 

Nor did ASARCO agree that the BLA gave the arbitrator the 

power to decide the scope of its authority to revise the BLA 

(the Delegation Question).

As explained in First Options, we must presume that the 

parties did not agree that the arbitrator should decide this 
26 ASARCO V. UNITED STEEL

Delegation Question, unless there is clear and unmistakable 

evidence to the contrary. There is no such evidence here.

Because arbitration is a matter of consent, we must first 

look to “the language of the contract” to “define[] the scope 

of disputes subject to arbitration,” EEOC v. Waffle House, 

Inc., 534 U.S. 279, 289 (2002). While the BLA states that 

the arbitrator has the authority “to hear and decide any 

grievance appealed” by the parties, the BLA provides that 

the arbitrator lacks the authority to “add to, detract from or 

alter in any way the provisions of” the BLA. It is silent on 

the Arbitrability Question (whether ASARCO and the Union 

have agreed to arbitrate the question whether the arbitrator 

may “add to, detract from or alter in any way the provisions 

of” the BLA). It is equally silent on the Delegation Question 

(whether the parties have agreed that the arbitrator can 

determine the Arbitrability Question). Because the parties 

did not clearly and unmistakably agree to arbitrate the 

question whether the arbitrator has the authority to revise the 

BLA, that question “is to be decided by the court, not the 

arbitrator.” AT&T, 475 U.S. at 649.

In implicitly reaching a contrary conclusion, the majority 

asserts that “the parties stipulated that the matter was 

properly before the arbitrator and that the arbitrator had 

jurisdiction to decide the grievance.” Maj. Op. at 5. This 

characterization is wholly unsupported by the record. 

ASARCO did not stipulate that the arbitrator had the 

authority to decide whether it could reform the BLA. Rather, 

from the beginning ASARCO vociferously and repeatedly 

pointed out that the BLA precluded the arbitrator from 

reforming the contract. While the parties agreed to submit 

their grievance regarding whether new employees were 

eligible for the Copper Bonus to the arbitrator, and allowed 

the arbitrator to frame the Copper Bonus issue, the issue 
ASARCO V. UNITED STEEL 27

submitted to arbitration did not include the scope of the 

arbitrator’s authority to revise the contract. Rather, as the 

arbitrator himself explained, “the proper statement of the 

issue is as follows: Are employees hired on and after July 1, 

2011 entitled to receive the Copper Price Bonus?”

Further, because ASARCO did not clearly agree to 

submit the question of the arbitrator’s authority to rewrite the 

BLA to arbitration, the court must decide the Delegation 

Question. I would reach this issue, and hold that the 

arbitrator had no authority to decide that ASARCO and the 

Union agreed to arbitrate the question whether the BLA 

could be revised. The parties’ contract clearly establishes 

that the arbitrator lacks the authority to modify the 

agreement even when there is a mutual mistake, see W. 

Coast Tel. Co. v. Local Union No. 77, Int’l Bhd. of Elec. 

Workers, AFL-CIO, 431 F.2d 1219, 1221 (9th Cir. 1970). 

There is no “clear and unmistakable” evidence that the 

parties contemplated that an arbitrator could reconsider the 

BLA’s prohibition of any arbitral revisions of the BLA and 

reach a different conclusion. I therefore would reverse the 

district court’s conclusion to the contrary.

III

Even if the majority were right in assuming that 

ASARCO had agreed to delegate to the arbitrator the 

question whether the arbitrator had the authority to rewrite 

the BLA, the majority errs in upholding the arbitration award 

here because the arbitrator plainly exceeded the authority 

granted to him by the BLA.

The BLA’s no-add provision says: “The arbitrator shall 

not have jurisdiction or authority to add to, detract from or 

alter in any way the provisions of this Agreement.” But the 
28 ASARCO V. UNITED STEEL

arbitrator amended the pension provision to include five 

additional lines of text:

Employees hired on and after the Effective 

Date are not eligible to participate in the 

pension plan. However, the Company shall 

treat such Employees as if they were accruing 

Continuous Service under the Retirement 

Income Plan for Hourly Rated Employees of 

ASARCO Inc. on the same terms as other 

Employees, only for purposes of determining 

eligibility for the Copper Price Bonus 

pursuant to Article 9, Section C.5 of the BLA.

Can he do that? We have said no: “an arbitrator has no 

authority to ignore the plain language of a collective 

bargaining agreement that limits the scope of his authority.” 

Haw. Teamsters & Allied Workers Union, Local 996 v. 

United Parcel Serv., 241 F.3d 1177, 1181 (9th Cir. 2001). 

When issuing awards, “an arbitrator is confined to 

interpretation and application of the collective bargaining 

agreement; he does not sit to dispense his own brand of 

industrial justice.” United Steelworkers of Am. v. Enter. 

Wheel & Car Corp., 363 U.S. 593, 597 (1960).

In reviewing an arbitral award, we are likewise bound by 

express limitations on an arbitrator’s authority. A court may 

not enforce an arbitration award if it does not “draw its 

essence from the collective bargaining agreement.” 

Federated Emp’rs, 600 F.2d at 1264. An arbitration award 

that violates “an express and explicit restriction on the 

arbitrator’s power” does not draw its essence from the 

agreement, but rather “demonstrates that the arbitrator 

ignored the essence of the agreement in making the award.” 

Id. at 1265. Because the arbitrator here ignored the essence 
ASARCO V. UNITED STEEL 29

of the agreement by violating an express and explicit 

restriction on his power, the award must be vacated. See id.

The majority abandons these principles today based on 

two unreasoned conclusions. First, the majority upholds the 

arbitrator’s award because it “was grounded in his reading” 

of the collective bargaining agreement. Maj. Op. at 10. On 

its face, this statement is dead wrong: the arbitrator did not 

even mention, let alone construe, the no-add provision in 

formulating his award.3 Unlike in Oxford Health Plans 

LLC v. Sutter, 569 U.S. 564, 570 (2013), where the arbitrator 

based a potentially unreasonable construction of his 

authority on a “textual exegesis,” the arbitrator here made no 

effort to reconcile his decision to add five lines of text to the 

agreement with the contract’s no-add provision. The 

majority does not really dispute this point: it concedes that 

the arbitrator “did not specifically cite the no-add provision 

when explaining the basis of his award,” but concludes it 

was sufficient for the arbitrator to “quote it directly” in the 

section of the arbitration decision entitled “Relevant 

Language of the BLA,” which it deems to be an 

“acknowledgment of the no-add provision.” Maj. Op. at 10–

11. But the arbitrator’s knowledge that the collective 

 3 The Arbitration Award is divided into six sections entitled: 

“Background”; “Relevant Language of the BLA”; “Relevant Language 

of the 2011 Memorandum of Agreement”; “Statement of the Issue”;

“Summary of the Position of the Parties”; and “Discussion and Award.” 

The no-add provision is mentioned in two sections of the Arbitration 

Award. The section entitled “Relevant Language of the BLA,” sets forth 

the text of four subsections of the collective bargaining agreement, 

including one entitled “Board of Arbitration” which explains the role of 

the arbitrator and contains the no-add provision. The “Summary of the 

Position of the Parties” sets forth the opposing positions of the Union 

and ASARCO regarding the effect of the no-add provision. The section 

entitled “Discussion and Award,” where the arbitrator provides his 

analysis and conclusion, does not discuss or mention the no-add 

provision.
30 ASARCO V. UNITED STEEL

bargaining agreement contained a no-add provision is 

immaterial if the arbitrator failed to construe it. Obviously, 

a “few references” to a key issue in dispute does not show 

that the arbitrator “did anything other than impose its own 

policy preference.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l 

Corp., 559 U.S. 662, 676 (2010). Here the arbitrator 

expressly stated he was reforming the agreement “in the 

interest of justice and fairness.” In other words, the 

arbitrator issued an award that “simply reflect[s] the 

arbitrator’s own notions of industrial justice.” E. Associated 

Coal Corp. v. United Mine Workers of Am., Dist. 17, 

531 U.S. 57, 62 (2000) (quoting United Paperworkers Int’l 

Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987)).

Second, the majority states that the arbitrator’s award is 

binding because arbitrators can reform a contract to correct 

a mutual mistake and “to make it reflect the terms the parties 

actually agreed upon.” Maj. Op. at 12. This sweeping 

assertion is inapposite here. While arbitrators may have 

power to reform an agreement where permitted to do so by 

the collective bargaining agreement, the arbitrator in this 

case clearly lacked that power. Rather, “the terms the parties 

actually agreed upon” in this collective bargaining 

agreement expressly state that the arbitrator may not add 

provisions to the agreement. Because “an arbitrator’s 

authority derives solely from the contract,” McDonald v. 

City of W. Branch, Mich., 466 U.S. 284, 290 (1984), the 

arbitrator here could not add provisions to the agreement, 

even if there had been a mutual mistake. The majority fails 

to explain why the arbitrator here could exercise a power 

directly contrary to the express restrictions on the arbitrator’s 

authority.

Indeed, the majority cites no case supporting its 

proposition that an arbitrator can reform a contract based on 
ASARCO V. UNITED STEEL 31

mutual mistake when the parties expressly prohibit the 

arbitrator from adding to or modifying the agreement. To 

the contrary, we have held that a no-add provision prohibits 

an arbitrator from modifying an agreement even when there 

is a mutual mistake. See W. Coast Tel. Co., 431 F.2d at 1221. 

In West Coast Telephone, we considered a union’s demand 

to compel arbitration of the question whether its collective 

bargaining agreement should be reformed to reflect the 

parties’ intent. Id. at 1220. We concluded “with positive 

assurance” that the issue of reformation due to mutual 

mistake was not arbitrable because “[t]he arbitration clause 

of the contract expressly provides that the arbitrator ‘shall 

have no power to destroy, change, add to or delete from its 

terms.’” Id. at 1221. In other words, a no-add provision in 

a collective bargaining agreement precludes the arbitrator 

from rewriting the agreement.

The majority attempts to distinguish West Coast 

Telephone because it addressed whether a dispute over 

reformation was arbitrable, rather than whether the arbitrator 

lacked authority to reform the contract, and therefore does 

not definitively resolve the issue whether the arbitrator’s 

award here drew its essence from the agreement. Maj. Op. 

at 14. But West Coast Telephone’s holding was based on its 

conclusion that a no-add provision deprives the arbitrator of 

the authority to modify the agreement, and this ruling is 

binding on us. 431 F.2d at 1221. We need not consider 

whether we would defer to an arbitrator who erroneously 

construed a no-add provision as allowing reformation of a 

contract in a particular case. That issue is not before us 

because—as mentioned above—the arbitrator here did not 

construe the no-add provision. Because under our precedent 

the arbitrator’s modification was contrary to the no-add 

provision and is therefore not a “plausible interpretation” of 

the contract, and because there is no basis for deferring to 
32 ASARCO V. UNITED STEEL

the arbitrator’s construction of the no-add provision in this 

case, his award must be vacated.4 Federated Empr’s, 600 

F.2d at 1265.

The arbitrator here dispensed his own brand of industrial 

justice by exceeding the scope of his delegated powers and 

modifying the agreement “in the interest of justice and 

fairness.” Because “an arbitrator has no authority to ignore 

the plain language of a collective bargaining agreement that 

limits the scope of his authority,” the award fails to draw its 

essence from the collective bargaining agreement. Haw. 

Teamsters, 241 F.3d at 1181.

***

In short, the BLA deprives the arbitrator of the authority 

to rewrite the agreement, and also deprives the arbitrator of 

the authority to reconsider and reject this limitation on his 

authority. Either way, the arbitrator’s award is invalid. In 

holding otherwise, the majority today turns its back on 

Supreme Court principles and our own precedent. I dissent.

 4 The majority states that we have “retired the use of the term 

‘plausibility’ when describing judicial review of labor arbitration 

awards.” Maj. Op. at 10 n.3 (citing Sw. Reg’l Council of Carpenters v. 

Drywall Dynamics, Inc., 823 F.3d 524, 532 (9th Cir. 2016)). But of 

course “a three-judge panel may not overrule a prior decision of the 

court,” Gammie, 335 F.3d at 899, except under circumstances not met by 

Drywall. Accordingly, as the majority concedes, Drywall did not make 

any substantive change to the settled law in this area. Maj. Op. at 10 n.3.