Summary
denying movant's appeal to the court's inherent power to award attorneys' fees because of opponent's bad faith in refusing to recognize arbitration award
Summary of this case from Feitshans v. KahnOpinion
00 CV 6659 (ILG)
July 27, 2001
MEMORANDUM ORDER
Plaintiff Heavy Construction Lumber, Inc. ("Heavy") initiated this action in New York state court to set aside an arbitration award reached on April 22, 2000 which sustained a grievance filed by defendant Local 1205, International Brotherhood of Teamsters ("Local 1205" or "the union"). The union removed the action to this court and filed a counterclaim to confirm the arbitration award, which it alleges plaintiff refuses to follow. Now before the court is the union's motion for summary judgment which seeks confirmation of the arbitration award pursuant to § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, prejudgment interest, costs and attorney's fees, and dismissal of Heavy's action to vacate the arbitration award. For the reasons that follow, defendant's motion is granted, the arbitration award confirmed and the Complaint dismissed. As for the union's request for prejudgment interest, costs and attorney's fees, that is denied.
Background
This case arises, in a nutshell, out of an arbitration award entered on April 22, 2000 sustaining the union's grievance that Heavy subcontracted bargaining unit work in violation of the parties' Collective Bargaining Agreement ("CBA"). Heavy seeks in this action to set aside the arbitration award in part because the arbitrator failed to grant plaintiff an adjournment which would have permitted its Secretary, Vincent Giorgi, to testify at the arbitration proceeding as to his intention in drafting a second CBA between Heavy and Local 1205.
The parties do not dispute that Heavy and Local 1205 were parties to a CBA which was effective from May 1, 1998 to April 30, 2001, though not signed until May 23, 1998. The CBA provides, in Article 20, for the "final, conclusive and binding" resolution of disputes between Local 1205 and Heavy by arbitration before the New York State Board of Mediation of the American Arbitration Association. (Ans. Ex. A) This CBA replaced a prior CBA which had expired on April 30, 1998. Also undisputed is that this CBA is a contract between an employer and a labor organization representing employees in an industry affecting commerce within the meaning of § 301 of the Labor Management Relations Act ("LMRA"), 15 U.S.C. § 185 (a).
Article 33 of the CBA prohibits Heavy from subcontracting bargaining unit work. Article 1 of the CBA identifies bargaining unit job classifications and covered work and modifies the prior CBA between the parties, specifically the "Recognition" and "Scope of Agreement" terms of the CBA. The new language reflects Heavy's recognition of Local 1205 as the exclusive collective bargaining representative of Heavy's employees in specified job classifications and identifies the specific operations covered by the CBA. It states:
RECOGNITION OF UNION
The Employer recognizes the Union as the sole collective bargaining agent for all its Chauffeurs, Lift Operators, Lumber Handlers[,] Yard Men, Machine Operators and Mechanics . . .
SCOPE OF AGREEMENT.
Section (1) Operations Covered: The terms of this Agreement shall apply to, but are not limited to the following work performed in connection with a wholesale or retail lumber operation and material suppliers.
a) Transportation to or from the yard or terminal and/or to, within or from the site of a construction by motor driven vehicles, of lumber, roofing and other building materials, including but not limited to lumber, doors, windows, structural lumber and other wood products, bricks, cement, sand stone and other type blocks.
b) handling, storage and warehousing of all roofing, lumber and related building materials and equipment.
c) hired and outside equipment: When the Employer uses outside or hired equipment, said equipment shall be manned by the Employees on the union seniority list of the Employer.
(Ans. Ex. A at 1)
In contrast, the prior CBA provided:
RECOGNITION
The Employer recognizes and acknowledges that the Local Union is the sole and exclusive representative of all employees in the classification of work covered by this Agreement for the purpose of collective bargaining as provided by the National Labor Relations Act.
SCOPE OF AGREEMENT
Sec. (1) All Chauffeurs, Lift Operators, Lumber Handlers and Laborers in the Employ of the Employer shall be covered under the Terms of this Agreement, excluding all others as defined in the Act.
(Decl. of Timothy Lynch, Ex. A)
Although Heavy purports to recognize in Article 1 that Local 1205 is the sole collective bargaining agent under the new CBA, Heavy contends that it also is party to a CBA with another Teamster union, Local 282, and that its CBA with Local 282 contains a recognition clause similar to that contained in Article 1 of its CBA with Local 1205. Only two Heavy truck drivers are members of Local 1205, and only one Heavy truck driver is a member of Local 282. Heavy further maintains that only members of Local 282 are permitted to deliver lumber to construction sites in the metropolitan area and that, because Heavy delivers a significant amount of lumber to construction sites in the metropolitan area, it must employ members of Local 282. Heavy also contends that it would never have entered into an exclusive agreement with Local 1205 since such an agreement would preclude Heavy from transacting business. Notably absent from Heavy's papers is an acknowledgment of the possibility that, in furtherance of its own business interests, it might have undertaken to recognize as exclusive bargaining agents two different unions in two different agreements, thereby violating both CBAs.
On October 6, 1998, Local 1205 filed a grievance against Heavy pursuant to its CBA. The subject of that grievance concerned Heavy's actions during the hiatus between the expiration of the parties' prior CBA and the execution of a new CBA on May 23, 1998. During that hiatus, Heavy had entered into an agreement with J S Management, Inc. to provide Heavy with lumberyard workers. At the time of subcontracting, J S Management was party to a CBA with another union, Local 522. Local 1205 alleged in its grievance that Heavy's subcontracting of bargaining unit work violated the CBA. The parties designated Arbitrator Alan Viani to arbitrate the grievance on November 5, 1998 and a hearing was scheduled for March 2, 1999. That hearing, however, was canceled when, on February 25, 1999, the parties informed the Arbitrator that they had reached a settlement. As the Arbitrator noted in an Opinion and Award which later followed, that settlement obligated Heavy, among other things, to:
1. Give full force and effect to the parties' 1998-2001 Agreement;
2. To terminate its relationship with JS Management;
3. To reemploy and/or employ the employees who are or had been performing the work that had been subcontracted to JS Management; and
4. To immediately make payments to the Local 1205 Pension, Severance and Welfare Fund from December 1, 1998 through the present for all employees doing bargaining unit work whether employed by Heavy Construction or JS Management.
(April 22, 2000 Opinion and Award, Ans. Ex. B at 10-11) Local 1205 eventually reduced the terms of the settlement to writing in a letter which it sent to Heavy. Steven Ehrens, Heavy's Vice President, signed the letter and added a line at the bottom of the Settlement stating: "Another important obligation of 1205 is I must be able to have my 1205 drivers be allowed to deliver 282 jobs."
Subsequently, the Arbitrator was informed that Local 1205 had requested that the matter be reopened in view of Heavy's failure to honor the terms of the Settlement. Arbitrator Viani scheduled a hearing for September 15, 1999, but, one day before the scheduled hearing, Heavy advised that it would not appear at the hearing because "The arbitration concerns Local 1205's claim to represent employees of Heavy Construction's subcontractor." (Id. at 2) The Arbitrator granted an adjournment over the union's objection and directed the parties to submit briefs on the jurisdictional issue raised by Heavy. On October 5, 1999, the Arbitrator issued an Interim Award rejecting Heavy's position and concluded: "The claim presented by the Union concerns a matter arising solely out of its collective bargaining agreement with [Heavy] and, therefore, the arbitration hearing . . . must go forward as soon as possible." (Id. at 2-4)
The arbitration hearing finally took place on February 7, 2000, but only after Heavy requested a third adjournment, which the Arbitrator denied. Heavy's third request for adjournment came in a letter dated February 3, 2000, four days before the arbitration was scheduled to take place. The letter stated that Vincent Giorgi, the Heavy representative who had executed the CBA with Local 1205, was undergoing medical treatment for cancer and that, accordingly, Heavy was requesting an adjournment "until Mr. Giorgi is well enough to participate in the arbitration." (Brook Decl. 4) The letter request contained no medical documentation or indication as to when Mr. Giorgi would be available. The Arbitrator's failure to grant that third adjournment forms the gravamen of Heavy's Complaint. Specifically, Heavy contends that had Mr. Giorgi been present at arbitration, he would have testified on the issue of whether it was his intention, when he executed a second CBA with the union, to include all of the truck drivers employed by Heavy, or only the two truck drivers who were members of Local 1205.
On April 22, 2000, Arbitrator Viani issued an Opinion and Award sustaining Local 1205's grievance. The Award contains the following remedy:
The grievance is sustained. The Company violated the collective bargaining agreement by subcontracting out bargaining unit work to J S Management. The Company shall fully comply with the terms of the parties' collective bargaining agreement and the February 25, 1999 agreement in all respects including but not limited to severing its relationship with J S Management if it has not already done so, re-employing and/or employing all those employees now doing bargaining unit work, who are now employed by JS Management, and making payments to the Local 1205 Pension, Severance, and Welfare Fund, from December 1, 1998 to the present — at 96 hours per month — for all of those employees that have been doing bargaining unit work as employees of JS Management.
(Ans. Ex. B at 16)
On July 31, 2000, Heavy filed this action in New York Supreme Court, County of Kings to vacate the Award. (Pet., Brook Decl. Ex. 1) The union removed the action to this court and filed its counterclaim to confirm the Award. The union then filed this motion, in which it contends that Heavy has failed and refused to comply with the Award and, in so doing, violated both the CBA and § 301 of the LMRA.
Discussion
I. Standard Governing Summary Judgment and District Court Review of Arbitration Awards
Before examining the facts underlying this motion, it is important to recall the criteria by which a motion for summary judgment is determined. Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 (c). A "moving party is `entitled to judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). In deciding a summary judgment motion, a court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. U.S., 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-249 (1986). "In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).
Although federal courts are authorized to review the decisions of labor arbitrators under § 301 of the LMRA, the scope of such review is exceedingly limited:
Under well-established standards for the review of labor arbitration awards, a federal court may not overrule an arbitrator's decision simply because the court believes its own interpretation of the contract would be the better one. Steelworkers v. Enterprise Wheel Car Corp., 363 U.S. 593, 596 [ 4 L.Ed.2d 1424, 80 S.Ct. 1358] (1960). When the parties include an arbitration clause in their collective-bargaining agreement, they choose to have disputes concerning constructions of the contract resolved by an arbitrator. Unless the arbitral decision does not "dra[w] its essence from the collective bargaining agreement," id., at 597, a court is bound to enforce the award and is not entitled to review the merits of the contract dispute. This remains so even when the basis for the arbitrator's decision may be ambiguous. Id., at 598.W. R. Grace Co. v. Local Union 759, 461 U.S. 757, 764 (1983). See also Major League Baseball Player's Ass'n v. Garvey, ___ U.S. ___, 121 S.Ct. 1724, 149 L.Ed.2d 740, 2001 U.S. LEXIS 3811 (May 14, 2001) ("It 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. When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's "improvident, even silly, factfinding' does not provide a basis for a reviewing court to refuse to enforce the award.") (citations omitted). A district court may not consider the merits of an award "even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract." United Paperworkers Int'l Union v. Misco. Inc., 484 U.S. 29, 36 (1987). The court may not set aside an award because it is ambiguous or contains no supporting reasons, United Steelworkers v. Enterprise Wheel Car Corp., 363 U.S. 593, 598 (1960), and "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Misco, 484 U.S. at 38. See also United States Steel Carnegie Pension Fund v. Dickinson, 753 F.2d 250, 252 (2d Cir. 1985) ("barely colorable justification" sufficient to uphold arbitrator's award). The reluctance of federal courts to set aside arbitration awards is informed by the central role played by arbitration in resolving disputes under CBAs and the recognition that "[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards." Enterprise Wheel, 363 U.S. at 596.
Confirmation of an arbitration award, which the union also now seeks, is a summary proceeding that converts a final arbitration award into a judgment of the Court. Ottley v. Schwartzberg, 819 F.2d 373, 377 (2d Cir. 1987) (citation omitted). Federal policy favors "the enforcement of arbitration agreements and the confirmation of arbitration awards." In The Matter of Arbitration between Soft Drink Brewery Workers Union Local 812. IBT, AFL-CIO, and Ali-Dana Beverages, Inc., No. 95 Civ. 8081, 1996 U.S. Dist. LEXIS 10585, at *4 (S.D.N Y July 24, 1996) (quoting Wall Street Assocs., L.P. v. Becker Paribas, Inc., 818 F. Supp. 679, 682 (S.D.N.Y. 1993) (citation omitted)).
II. The Motion for Summary Judgment
Applying these principals to the union's motion, it is clear that the Award must be confirmed and Heavy's action to vacate the Award dismissed. The parties selected Arbitrator Viani to decide Local 1205's grievance according to the procedures set forth in the CBA. The Arbitrator identified the issue to be determined in arbitration as: "Did the Company violate the collective bargaining agreement by subcontracting out all bargaining unit work? If so, what shall be the remedy?" The Arbitrator decided only the grievance before him and crafted an Award that construes and applies the CBA. An "arbitrator need only explicate his reasoning under the contract `in terms that offer even a barely colorable justification for the outcome reached' in order to withstand judicial scrutiny." New York Typographical Union No. 6 v. Printers League, 878 F.2d 56, 60 (2d Cir. 1989) (quoting In re Marine Pollution Service. Inc., 857 F.2d 91, 94 (2d Cir. 1988) (citation omitted)).
That the Arbitrator was "arguably construing or applying the contract" is patently obvious. The analysis upon which the Award rests is firmly rooted in the Agreement, specifically in an interpretation of the "Recognition" clause in Article 1, the subcontracting prohibition in Article 33, and a February 25, 1999 agreement settling the grievance, which the Arbitrator characterized as "an amendment to and reaffirmation of the basic agreement." (Ans. Ex. B at 14) The conclusion reached by the Arbitrator also "draws its essence" from the CBA.
First, the Arbitrator concluded that Heavy did subcontract work covered by Article 1 of the Agreement when it retained J S Management beginning in May 1998 to perform work previously performed by Heavy workers. This conclusion was based on the Arbitrator's finding that, contrary to Heavy's position that the CBA applied only to the two employees who were actually members of Local 1205, the Arbitrator found that "the clear and unambiguous language of the recognition clause of the agreement" demonstrated a clear intent on the part of the parties that the CBA applied to all classifications of employees specified. (Id. at 13) Moreover, the Arbitrator concluded that the February 25, 1999 Settlement "reaffirmed [Heavy]'s commitment that it would not `fail or refuse to give full force and effect to the terms of' the CBA and `restated Local 1205's standing as exclusive representative for the categories of employees enumerated under Article I of the agreement." (Id. at 14)
Second, the Arbitrator concluded that the CBA prohibited Heavy from subcontracting such work. This conclusion rested on the finding that the parties had reached an Agreement in February 1999, before Heavy began subcontracting with J S Management, placing an "absolute and unequivocal ban on [Heavy]'s subcontract with J S Management." (Id. at 15) Even assuming that this court would have reached a different conclusion with respect to the impact of the February 1999 Settlement Agreement on Heavy's obligations, there would be no basis for vacating the arbitration award. See Mine Workers, 121 S.Ct. at 466; Misco, 484 U.S. at 36, 38; Enterprise Wheel, 363 U.S. at 559; Hill v. Staten Island Zoological Soc'y, Inc., 147 F.3d 209, 213 (2d Cir. 1998) (holding that whether a court "would have come to the same conclusion is not determinative, or even particularly significant"). Because this court is "precluded from inquiring into the merits of the underlying dispute between the parties or second guessing" the Arbitrator's interpretation of the CBA, Insulation Quality Enters., 675 F. Supp. at 1405, the inquiry on this motion is confined to whether the Arbitrator was acting within the scope of his authority in construing the CBA. "Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator." Misco, 484 U.S. at 36-37.
In its Petition, the Company sets forth three grounds for vacating the Award. Each of these grounds is meritless and, therefore, cannot justify the relief sought by Heavy. First, Heavy argues that the award should be set aside because Arbitrator Viani refused to grant the adjournment requested. (Pet. at ¶¶ 13, 18) This argument is nothing but an attempt on Heavy's part to collaterally attack the award on procedural and evidentiary grounds, the determination of which are "best left to the arbitrator." Misco, 484 U.S. at 39-40. An arbitrator's refusal to consider evidence will not furnish grounds for disturbing his conclusion unless the refusal is "in bad faith or so gross as to amount to affirmative misconduct." "[S]o long as there is a reasonable basis for the arbitrator's refusal [to grant an adjournment], the award will stand." See Prozina Shipping Co. v. Elizabeth-Newark Shipping. Inc., No. 98 Civ. 5834 (LMM), 1999 U.S. Dist. LEXIS 14298, at *7 (S.D.N.Y. Sept. 10, 1999).
Here, the adjournment request that was denied was Heavy's third such request and, despite Heavy's claim that the request was for a "short" adjournment only, Heavy provided no indication in its letter requesting the adjournment as to when Mr. Giorgi might be healthy enough to participate in the arbitration hearing. Moreover, Arbitrator Viani had already indicated to the parties that he wished to go forward with the delayed arbitration as soon as possible. On these facts, the Arbitrator's decision was abundantly reasonable.
Local 1205 makes the additional argument that the denial of the adjournment also was proper because the testimony which Mr. Giorgi was prepared to offer was barred by the parol evidence rule, since it would have been introduced for the purpose of modifying the unambiguous terms of the contract. Because the CBA provided that "the Arbitrator shall not have the authority to amend or modify this Agreement or establish new terms of conditions under this Agreement," (Ans. Ex. A at 9), Local 1205 is correct that the Arbitrator would not have permitted Mr. Giorgi to testify that his intention in signing the new CBA was something other than what is unambiguously reflected in the CBA. Indeed, Arbitrator Viani ultimately held that "the clear and unambiguous language of the recognition clause of the agreement clearly extends exclusive bargaining status to Local 1205 on behalf of" specified categories of workers employed by Heavy. (Id. at 13)
The second argument Heavy advances in this action is that the Arbitrator "totally ignored a long line of cases" under the NLRA which describe what are known as "members only contracts" and which Heavy alleges hold that the number of employees covered by a CBA cannot increase from one contract to the next unless an election is held. (Pet. at ¶¶ 19-20) Again, this argument is simply a request on Heavy's part to have this court revisit the merits of the Award. As the union correctly observes, because Heavy does not contend that Arbitrator Viani exceeded his authority or that the essence of the award is not drawn from the CBA, the court must decline this invitation. See, e.g., Misco, 484 U.S. at 38 ("Courts thus 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.") Even if this court were justified in reviewing whether Arbitrator Viani's construction of Heavy's obligations under the CBA was supported by the relevant legal authority, it would conclude that it was so supported. In its petition, Heavy relies on two NLRB decisions, Arthur Sarnow Candy Co., 306 NLRB 213 (1992), 1992 NLRB LEXIS 115, cited for the proposition that a "new contract only applies to the same number of employees and if the union wishes to increase the number of members in its local, then an election should be held" (Pet. at ¶ 19), and Massachusetts Electric Co., 248 NLRB 155 (1980), cited for the proposition that in order for Local 1205 to be viewed under the CBA as the exclusive bargaining agent for all Heavy employees in the specified job categories, "an election had to be held in which the employees would have an opportunity to determine which union, if any, they wished to have represent them." (Id. at ¶ 20) Contrary to Heavy's reading, nothing in Arthur Sarnow Candy precludes enforcement of a CBA through arbitration where that CBA is not limited in coverage to union members, as this CBA was not. That case simply holds that there did not exist an appropriate bargaining unit within the meaning of Section 9(a) of the NLRA where the facts showed that the CBA applied only to those employees who were union members. 1992 NLRB LEXIS 115, ** 17-18. More damning to Heavy's argument is a critical distinction between this case and Arthur Sarnow, namely that the facts in this case, as found by the Arbitrator, do not establish that the CBA was for members only but rather that Local 1205 was the bargaining representative of all employees in the specified employment category.
Furthermore, it appears that Heavy neglected to raise this line of argument before the Arbitrator and is precluded from doing so now to oppose confirmation of the Award.
More apposite than Arthur Sarnow Candy is the case of Gardner Eng'g Inc., 313 NLRB 755, 757 (1994), enf'd in relevant part, 115 F.3d 636 (9th Cir. 1997), in which the NLRB found that by entering into a Settlement Agreement subsequent to a "members only" CBA, the parties agreed to broader recognition than may have previously applied in practice:
Especially in light of the fact that the Union knew at the time that it was entering into the settlement agreement that there were nonunion members performing such work, we do not conclude that the Union acquiesced to more limited recognition when it agreed to the broadly worded settlement. To the contrary, the fact that the Respondent entered into the broadly worded settlement after it had informed the Union that it had nonunion employees performing unit work suggests the Respondent was acquiescing to a broader recognition of the Union than it may have previously adhered to in practice. . . . We conclude . . . that through the settlement agreement the parties intended that the Respondent voluntarily recognize the Union as the exclusive bargaining representative of all unit employees.
313 NLRB at 757 (emphasis added). As in Gardner, even if Heavy had earlier applied the CBA on a members-only basis, Heavy's decision to enter into a broadly worded Settlement Agreement with Local 1205 when it knew that Local 1205 was asserting that the CBA applied to all employees working in positions specified by Article 1, Heavy recognized Local 1205 as the exclusive bargaining representative of all unit employees. As Arbitrator Viani held, Heavy "agreed to restate Local 1205's standing as exclusive representative for the categories of employees enumerated in Article 1 of the agreement. . . . When [Heavy] signed [the February 25, 1999] agreement it could not have been unaware of the consequences of its actions." (Ans. Ex. A at 14)
Nor does Massachusetts Electric Co. counsel that Arbitrator Viani's interpretation of the CBA was erroneous, since that case does not deal with arbitration of a union's grievance under a CBA, but rather an employer's petition to the NLRB for representation elections under § 9 of the NLRA. Although the NLRB did hold in that case that an election should be held to resolve competing claims by unions as to representation of employees after an employer consolidated facilities and operations previously performed by employees in separate bargaining units, even where there were pending grievances under existing CBAs, there is nothing to suggest that a pending grievance under a CBA could not go forward in the absence of an election. Here, there are no competing claims of representation by the two unions with whom Heavy has CBAs, Local 1205 and Local 282. Heavy has submitted an affidavit by its president, Henry Giorgi, in which he states that the threat of competing claims is "neither a hypothetical situation, nor an academic exercise." However, Heavy cannot seriously contend that the possibility of conflicting claims of exclusive representation created by Arbitrator Viani's recognition of Local 1205 rises to the level of competing claims which would necessitate an election under Massachusetts Electric Co. Arbitrator Viani appeared to recognize as much, moreover, when he stated that "the issue raised by [Heavy] concerning the overlapping contractual agreements between Local 1205 and Local 282 is not directly before me. Any resolution of this matter must be resolved in the proper forum." (Ans. Ex. A at 16)
Finally, Heavy argues that the arbitration award must be set aside because Arbitrator Viani considered the Settlement Agreement reached between the parties on February 25, 2000. In the Opinion and Award, Arbitrator Viani unequivocally found that the parties entered the February 25, 1999 Settlement Agreement and that it became part of the CBA. (Ans. Ex. B at 14) Again, there is no basis for Heavy's request that this court revisit the Arbitrator's factual findings or review his construction of the CBA. The additional contention advanced by Heavy that the Settlement never took effect because a "condition precedent" to the Settlement was never fulfilled, namely the language added by Heavy's President Steve Ehrens ("Another important obligation of 1205 is I must be able to have my 1205 drivers be allowed to deliver to 282 jobs.") (Ehrens Aff. Ex. A), not only was never presented to the Arbitrator but is completely undermined by the fact that the language added by Mr. Ehrens is not in the nature of a condition precedent such that Local 1205's inability to deliver to "282 jobs" would vitiate the Settlement.
Because none of the arguments advanced by Heavy support its claim that the arbitration award must be set aside, summary judgment is appropriate, Heavy's claim must be dismissed and the arbitration award of April 22, 2000 conformed into a judgment.
III. The Union's Request for Attorney's Fees and Costs
The Union requests that the costs and attorney's fees incurred in bringing this motion be awarded to it. It is the "American Rule" that attorney's fees will not be awarded to the successful party absent "explicit statutory authority." Buckingham Board Care Home. Inc. v. West Virginia Dep't of Health and Human Resources, ___ U.S. ___ (May 29, 2001); Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994). Explicit statutory authority for such an award is absent for § 301 of the LMRA, 29 U.S.C. § 185, makes no provision for attorney's fees in actions to confirm and enforce an arbitration award. Bell Productions Engineering Ass'n v. Bell Helicopter Textron, 688 F.2d 997, 999 (5th Cir. 1988). However, pursuant to its inherent power, a court may make such an award when opposing counsel acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 29 (1974). In this Circuit, attorney's fees have been awarded if the party challenging it refused to abide by the arbitrator's decision without justification. A lack of justification is manifested when a party refuses to abide by an arbitrator's award but does not challenge it or move the court for an order vacating it. See, e.g., Nitron Int'l Corp. v. Golden Panagia Maritime, Inc., 1999 WL 223155 (S.D.N.Y. 1999) ("In this case, [the defendant] has not complied with the decision of the arbitrator, nor has it contested the award in this or any other proceeding.") (emphasis added). A cursory review of the cases in which attorney's fees have been awarded reveals that in the main, the plaintiff is a union compelled to seek judicial relief where the defendant employer has simply refused to recognize the arbitrator's award. The plaintiff here has done more. It has made colorable arguments to justify the challenge to the arbitrator's award as the union's 14 page Memorandum of Law in Opposition devoted entirely to a discussion of the authorities in its favor would suggest. An award of attorney's fees is not required merely because the employer-plaintiffs arguments have been rejected. International Brotherhood of Electrical Workers. Local 910. ALF-CIO v. Roberts, 992 F. Supp. 132, 136 (S.D.N.Y. 1998). Nor does such rejection require the conclusion that the plaintiff acted in bad faith, vexatiously or wantonly and the court finds that he did not and the defendant's motion is denied in this respect.
Conclusion
For the foregoing reasons, the union's motion for summary judgment is awarded and Heavy's action is dismissed in its entirety. Moreover, the arbitration award entered by Arbitratror Viani on April 22, 2000 is hereby conformed. As for Local 1205's request for prejudgment interest, costs and attorneys fees, that request is denied.
SO ORDERED.