In an interesting take on who decides arbitrability, the majority of this split decision holds that even though the union submitted its dispute to the arbitrator for a decision, it could contend on appeal from a denial of its petition to vacate the award that the arbitrator improperly decided that the dispute was not arbitrable. Since the arbitration agreement did not clearly and unmistakably delegate questions of arbitrability to the arbitrator, the majority says, he should have decided only the merits, leaving the arbitrability decision to the courts. Instead, the arbitrator mixed consideration of the merits (here, whether Mirage was the “employer” of a lessee’s workers and so liable for their fringe benefits when the lessee failed to pay them) with the separate issue of arbitrability, wrongly entering an award holding the dispute was not arbitrable. The dissent, however, says that the clearly and unmistakably test applies only when a party resists arbitration and seeks to test arbitrability in court; it does not apply to and cannot be raised by the union in this case which submitted the dispute to the arbitrator for resolution. Strangely, neither majority nor dissent focuses on the fact that arbitrability and merits turned on the same issue here so that even if the majority is right, it vacates the award only because the arbitrator wrongly phrased his determination as one based on arbitrability rather than as one based on the merits.
Ninth Circuit Court of Appeals (Bucklo, J., sitting by designation; Friedland, J., dissenting); December 13, 2018; 911 F.3d 588