The opinion of the court was delivered by: Hart, District Judge.
The plaintiff, International Union of Operating Engineers, Local 150,
AFL — CIO ("Union") filed this action to enforce an arbitration
award rendered in its favor pursuant to a collective bargaining agreement
between the Union and the defendant, J. Pease Construction Company
("Pease"). Enforcement is sought pursuant to section 301(a) of the Labor
Management Relations Act of 1947, as amended, 29 U.S.C. § 185(a).
Presently before the Court are the Union's motions to strike Pease's
affirmative defenses because they are untimely and for summary judgment.
The Union also seeks attorneys' fees. For the reasons stated below, the
Union's motions to strike affirmative defenses and for summary judgment
are granted and its request for attorneys' fees is denied.
On April 9, 1981, the Union sent a letter to Pease charging that
Pease's utilization of employees who were not referred from the Union's
hiring hall was in direct violation of the agreement between the
parties. The letter stated:
Pease was further notified that unless the grievance was resolved
informally, it would be referred to the Joint Grievance Committee.
Article VIII of the collective bargaining agreement between the parties
provides that if the representatives of the parties are unable to resolve
a dispute, the grievance is to be submitted to a Joint Grievance
Committee composed of three representatives of the Union and three
representatives of the Employer. It is further provided:
Informal resolution was unsuccessful and the grievance was referred to
the Joint Grievance Committee. On April 23, 1981, the Committee sent a
letter to Pease informing it that a hearing would be held on May 5,
1981. The letter noted that the Committee was empowered to rule in the
absence of either party. The hearing was held. It is undisputed that
Pease chose not to appear.
The Committee concluded that Pease had violated the terms of the
collective bargaining agreement by using employees who had not been
referred by the Union. The Union was awarded 17 days of back pay, plus
fringe benefits for three Union members. On May 5, 1981. the Committee
sent a letter to Pease informing it that the back pay award amounted to
$8,151.29. Pease refused to comply. Suit was filed on June 10, 1981 to
enforce compliance with the award.
Nine months after the issuance of the award and subsequent to the
filing of this action, Pease requested that the Joint Grievance Committee
either vacate or recalculate the award. The Committee rejected each
request. Pease now contends that the Committee exceeded its powers by
awarding an excessive amount of back pay without sufficient evidence to
substantiate Pease's violation and, therefore, that the award is
"completely irrational." In the alternative, Pease asserts that the
Committee miscalculated the amount of back pay it assessed. In effect,
Pease is asking this Court to conduct a de novo review of the Committee's
We cannot do this. The scope of review by a federal court in a suit to
enforce an arbitration award is extremely limited. The Supreme Court has
stated that "[t]he refusal of courts to review the merits of an
arbitration award is the proper approach to arbitration under collective
bargaining agreements." United Steelworkers of America v. Enterprise
Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424
(1960). of course, the Supreme Court's direction does not mean that an
arbitrator's decision is absolutely immune from scrutiny. His award is
legitimate only so long as it draws its essence from the collective
bargaining agreement and his interpretation can in some rational manner
be said to derive from the agreement. Id. See also United Steelworkers of
America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4
L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).
The Court of Appeals for the Seventh Circuit has interpreted the
standards set forth in the "Steel Workers Trilogy" to mean that "a
reviewing court should not disturb the award so long as the
interpretation was not arbitrary." Mogge v. District 8, International
Association of Machinists, 454 F.2d 510, 513 (7th Cir. 1971). Neither the
correctness of the arbitrator's conclusion nor the propriety of his
reasoning is relevant to the reviewing court. Id. See also Amoco Oil Co.
v. Oil, Chemical and Atomic Workers International Union, Local 7-1,
Inc., 548 F.2d 1288 (7th Cir.), cert. denied 431 U.S. 905, 97 S.Ct.
1697, 52 L.Ed.2d 389 (1977); F. W. Woolworth Co. v. Miscellaneous
Warehousemen's Union Local 781, 629 F.2d 1204 (7th Cir. 1980), cert
denied, 451 U.S. 937, 101 S.Ct. 2016, 68 L.Ed.2d 324 (1981), Chicago
Cartage Company v. International Brotherhood of Teamsters, Local 710,
659 F.2d 825 (7th Cir. 1981).
An arbitration award rendered by a Joint Grievance Committee comprised
of representatives of labor and management is governed by the same
principles of enforcement and review as is a decision made by an
individual arbitrator. General Drivers, Warehousemen & Helpers Local 89
v. Riss & Co., 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); Chicago
Cartage Co. v. International Brotherhood of Teamsters, Local 710, supra.
The attack made by Pease upon the award would require the Court to
impermissibly review the merits of the Grievance Committee's award.
Certainly there is no suggestion here that the dispute itself is outside
the bounds of the collective bargaining agreement. Neither are we
persuaded that the Committee's decision was reached in an arbitrary,
capricious or irrational manner. It is undisputed that the Union
submitted evidence to the Committee bearing on the extent of its
damages. It was Pease's decision not to appear at the hearing to
controvert that evidence.
Even if our review were not circumscribed, Pease's attempt to assert
its affirmative defenses is untimely. Under
applicable Illinois law, Ill.Rev.Stat., ch. 10 § 112, a motion to
vacate or modify an arbitration award must be filed within 90 days
following the issuance of the award. Pease, however, argues that his
motion to vacate is governed by federal law, United States Arbitration
Act of 1925, 9 U.S.C. § 1 et seq. An identical argument was recently
raised and rejected by the Court of Appeals for the Seventh Circuit in
Chauffeurs, Teamsters, Warehousemen and Helpers, Local 185 v. Jefferson
Trucking Co., 628 F.2d 1023 (1980). In Jefferson Trucking, the court
noted that section 301 of the Labor Management Relations Act does not
provide for a time limitation on actions to vacate an arbitrator's award
brought under that section. Rather, "the timeliness of a Section 301 suit
is to be determined, as a matter of federal law, 'by reference to the
appropriate state statute of limitations.'" Id. at 1026, quoting U. A. W.
v. Hoosier Cardinal Corp., 383 U.S. 696, 704-705, 86 S.Ct. 1107,
1112-1113, 16 L.Ed.2d 192 (1966). Accord United Parcel Service, Inc. v.
Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). Those
decisions are controlling in this case.
Moreover, even if state law was not applicable, the United States
Arbitration Act provides that notice of a motion to vacate an award or to
correct or modify an award must be served within three months following
the filing or delivery of the award. 9 U.S.C. § 10, 11. Pease,
therefore, is time barred to assert its affirmative defenses under either
statute. The Union's motion to strike those defenses is, therefore,
granted. Because no genuine issue of material fact remains for trial,
summary judgment is appropriate as a matter of law. See Cedillo v.
International Association of Bridge & Structural Iron Workers, Local 1,
603 F.2d 7, 10 (7th Cir. 1979).
The Union also seeks attorneys' fees. The American rule is that absent
specific statutory or other expressed authorization, attorneys' fees are
not recoverable by the prevailing party to a lawsuit. Aleyska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612,
1616, 44 L.Ed.2d 141 (1975); Bailey v. Meister Brau, Inc., 535 F.2d 982
(1976). An exception to the rule is recognized which permits a court to
tax attorneys' fees against a losing party who has "acted in bad faith,
vexatiously, wantonly, or for oppressive reasons. . . ." Aleyska Pipeline
Service Co. v. Wilderness Society, supra 421 U.S. at 258-59, 95 S.Ct. at
1622-1623, citing F.D. Rich., Inc. v. United States ex rel. Industrial
Lumber Co., Inc., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703
Section 301 of the Labor Management Relations Act does not provide that
attorneys' fees may be awarded to a successful party. Nonetheless, a
number of federal courts have held that, in the interest of effecting
national labor policy, their equitable power permits them to award
attorneys' fees for an unjustified refusal to abide by the award of an
arbitrator or a labor-management grievance committee. See, e.g., Local
149 U. A. W v. American Brake Shoe Co., 298 F.2d 212 (4th Cir.), cert.
denied 369 U.S. 873, 82 S.Ct. 1142, 8 L.Ed.2d 276 (1962); General Drivers
and Helpers Union, Local 554 v. Young and Hay Transportation Co.,
522 F.2d 562 (8th Cir. 1975); United States Steelworkers v. Butler
Manufacturing Co., 439 F.2d 1110 (8th Cir. 1971).
The Seventh Circuit Court of Appeals apparently has not considered the
precise issue. It is instructive, therefore, to look for guidance to the
standards which the Seventh Circuit has used to award attorneys' fees in
non-labor cases. Those standards clearly indicate that the Court's
inherent equitable powers may only be invoked to award attorneys' fees to
prevent gross injustice, fraud, or bad faith. See, e.g., Bailey v. Meister
Brau, Inc., supra; Adams v. Carlson, 521 F.2d 168 (7th Cir. 1975); H. K.
Porter Co., Inc. v. Black & Decker Manufacturing Co., 518 F.2d 1177 (7th
Cir. 1975). The standards for determining bad faith necessarily are
stringent. Adams v. Carlson, supra.
Based on this record, we cannot say that Pease's failure to attend the
proceeding*fn1 and his unquestionable footdragging in challenging the
award of the Committee is the type of behavior which clearly constitutes
bad faith. Neither will a failure to award attorneys' fees work a gross
injustice on the Union. This matter has not proceeded to trial and the
Union has been awarded the amount of damages that it requested.
Accordingly, the Union's request for attorneys' fees is denied.
IT IS ORDERED that the Union's motions to strike affirmative defenses
and for summary judgment be granted.
IT IS FURTHER ORDERED that judgment be and is hereby entered in favor
of the plaintiff and against the defendant in the amount of $8,151.29,
thereby confirming and enforcing the arbitration award rendered pursuant
to the collective bargaining agreement between the parties.