Asarco, LLC v. United Steel, Paper and Forest

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASARCO LLC, a limited liability No. 16-16363
corporation,
Petitioner-Appellant, D.C. No.
2:15-cv-00117-
v. SMM
UNITED STEEL, PAPER AND
FORESTRY, RUBBER, ORDER AND
MANUFACTURING, ENERGY, ALLIED OPINION
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.
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 no-
add 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
plausible 3 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 non-
existence 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, well-
defined, 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-by-
case 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 over-
eager 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.