IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

EL PASO ELECTRIC COMPANY, § §

Plaintiff/Counterdefendant, § §

v. § § CASE NO. 3:11-cv-00080-FM

INTERNATIONAL BROTHERHOOD § OF ELECTRICAL WORKERS, § LOCAL NO. 960, §

§ Defendant/Counterclaimant. §

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS COMPLAINT

Defendant/Counterclaimant International Brotherhood of Electrical Workers, Local No.

960 (“Local 960” or “the Union”), by and through undersigned counsel, hereby replies in support

of its Motion to Dismiss the Complaint filed by Plaintiff/Counterdefendant El Paso Electric

Company (“EPE” or “the Company”). In support, the Union replies as follows.

ARGUMENT

I. EPE MISAPPREHENDS THE MOTION-TO-DISMISS STANDARD AND THE RANGE OF DOCUMENTS THE COURT MAY PROPERLY CONSIDER IN RULING ON SUCH A MOTION.

In laying out the motion-to-dismiss standard in its Response (p. 3), EPE recites by rote

outdated case law suggesting that a court may not dismiss a complaint “unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” The case cited for this proposition is a Fifth Circuit case from 2000 which, in turn,

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quotes a U.S. Supreme Court case from 1957, namely, Conley v. Gibson, 355 U.S. 41, 45-46. In

doing so, EPE ignores a critical and extensive revision to the applicable standard wrought by the

Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and its

progeny.

Indeed, the Twombly Court specifically disapproved the very language quoted by EPE –

dubbed the “no set of facts” language by the Supreme Court – and noted that it had “earned its

retirement” and was “best forgotten as an incomplete, negative gloss on an accepted pleading

standard.” Id. at 563. In its place, the Supreme Court announced a new “plausibility” standard,

requiring a pleader to allege facts sufficient to “nudge[] their claims across the line from

conceivable to plausible.” Id. at 570. Put differently, the “plausibility” standard requires, at the

pleading stage, “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” supporting a claim for relief. Id. at 556. After all, “when the allegations in a

complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency

should . . . be exposed at the point of minimum expenditure of time and money by the parties and

the court.” Id. at 558 (internal quotations and citations omitted).

This standard is applicable to “all civil actions.” See Ashcroft v. Iqbal, __ U.S. __, 129

S.Ct. 1937, 1953, 173 L.Ed.2d 868, 887 (2009). See also Moore v. Potter, 275 Fed.Appx. 405,

408, 2008 U.S. App. LEXIS 9215, **5 (5th Cir. April 28, 2008) (applying the Twombly standard

to a motion to dismiss a complaint to vacate a labor arbitration award); Am. Postal Workers

Union v. U.S. Postal Service, 188 L.R.R.M. 3590, 2010 U.S. Dist. LEXIS 47619, *5 (N.D. Tex.

May 14, 2010) (same). Thus, under the present motion-to-dismiss standard, EPE must set forth

sufficient facts to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

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For the reasons set forth in Local 960’s Motion to Dismiss and below, EPE fails to state such a

claim in this case.

In addition, EPE incorrectly insists that the EPE’s claims “must be evaluated solely on the

basis of the pleadings” (Response, p. 2). Such is simply not the case. As the U.S. Supreme

Court and the Fifth Circuit have noted, courts ordinarily examine documents attached to the

complaint and incorporated into the complaint by reference. See Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as

well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,

in particular, documents incorporated in the complaint by reference . . .”); U.S. ex rel. Willard v.

Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003) (“In deciding a motion to

dismiss the court may consider documents attached to or incorporated in the complaint . . .”).

Indeed, the Fifth Circuit recently considered an arbitration award attached to a complaint in

evaluating, and granting, a motion to dismiss a complaint to vacate a labor arbitration award,

basing its decision in large part on what the award itself indicated. See, e.g., Moore, 275

Fed.Appx. at 409-11 & n.2, 2008 U.S. App. LEXIS 9215, at **8-9, 14.

II. THE UNION DOES NOT SUGGEST THE CONTRACT LANGUAGE PROVIDING THAT THE ARBITRATOR’S DECISION IS TO BE “FINAL AND BINDING” PRECLUDES ANY JUDICIAL REVIEW UNDER ANY CIRCUMSTANCES, BUT RATHER ANY REVIEW IS “VERY LIMITED” IN LIGHT OF THIS PROVISION AND THE POLICY FAVORING FINALITY.

The Union emphatically does not assert – “half-heartedly”1 or otherwise – that this Court

“has no jurisdiction to review the arbitration decision” solely by virtue of the fact “the parties’

1 In using this particular adverb and in making the larger assertion, the Company merely parrots the language of the Dole Ocean Liner Exp. v. Georgia Vegetable Co. case cited in its Response (p. 3), a decision arising under the Federal Arbitration Act that was reversed on appeal.

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collective bargaining agreement provides that the ‘arbitrator’s decision shall be final and binding

upon both Parties’” (Response, p. 3). Instead, the Union notes the existence of this provision – a

provision notably omitted from the text of EPE’s Complaint but attached in an exhibit – and that,

in light of this provision and the overall federal labor policy favoring the finality of awards, “the

Court’s review here is to be ‘very limited’” (Motion to Dismiss, pp. 5-6). This is a simple

restatement of the applicable standard of review and is patently not an argument that the presence

of this language per se precludes any judicial review (as res judicata or otherwise), regardless of

the circumstances involved in a case or the objectionable nature of an award.

The existence of this language in the CBA is nevertheless significant for other reasons. In

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 594, 599 (1960), as in subsequent

cases, the U.S. Supreme Court noted the presence of such a provision in the CBA being

considered and further observed, in explaining the rationale behind the policy of finality and the

concomitant limited judicial review of labor arbitration awards, that “plenary review by a court of

the merits would make meaningless the provisions that the arbitrator’s decision is final, for in

reality it would almost never be final.” Stated differently, the presence of this standard language

in the parties’ agreement both underpins and comports with the overall federal policy favoring

the finality of awards in all but exceptional cases; extreme deference is critical to giving effect to

the parties’ bargained-for arbitration provision. As an examination of the instant Awards

themselves indicates, this case is no exception, and the Complaint should therefore be dismissed.

III. A PERUSAL OF THE AWARDS IN LIGHT OF THE PARTIES’ CBA AND GOVERNING CASE LAW DEMONSTRATES THAT THERE IS NO BASIS HERE FOR VACATING THE AWARDS.

The Company asserts in the Complaint that Arbitrator Sherman “exceeded his authority”

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in three respects.2 The fact that EPE makes such an assertion based on conclusory allegations

and unwarranted factual inferences does not make it so and does not preclude a dismissal at this

stage, particularly since the Court has the benefit of reviewing and considering the actual Awards

and pertinent CBA provisions that were attached to and incorporated into the Complaint.

When considered in view of the extremely deferential standard in this area and the

applicable CBA provisions, EPE’s legal theories find no support in the Award and are unavailing

for the reasons set forth in the Motion to Dismiss. Such being the case, there is no reason, rooted

in law or in principles of judicial economy, to allow this case to proceed. Discovery is generally

not permitted in such cases and, consequently, if the case were not dismissed at this stage, the

Court would simply face the same arguments at a later date. See JCI Communs., Inc. v. IBEW,

Local 103, 324 F.3d 42, 50 (1st Cir. 2003) (barring the parties from conducting further discovery

in order to ensure a review based on the record before the arbitrator and in light of the narrow

standard of review). Cf. Midwest Generation EME, LLC v. Continuum Chem. Corp., 2010 U.S.

Dist. LEXIS 61635, *6 (N.D. Ill. June 21, 2010) (“Post-arbitration discovery is rare, and courts

have been extremely reluctant to allow it. It is often a ‘tactic’ employed by disgruntled or

suspicious parties who, having lost the arbitration, are anxious for another go at it.”). Local 960

therefore respectfully requests that the Court grant its Motion to Dismiss the Complaint.

2 The Company states in its Response (without additional argument as to how this basis applies to the instant matter) that “the Fifth Circuit also recognizes arbitrariness and capriciousness as a valid ground for vacatur in cases arising from the terms of a bargaining agreement” (p. 5). In this connection, the Union first notes that EPE never argued that the Awards were arbitrary and capricious or mentioned such as a basis for vacating the Awards in its Complaint. Second, the case cited for this proposition refers to such basis in dicta and relies on several decisions which are highly questionable authorities in light of the Supreme Court’s recent pronouncement on the proper standard in Garvey, as set forth in the Motion to Dismiss (pp. 5-6).

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Respectfully submitted,

LUBIN & ENOCH, P.C.

By: /s/ Nicholas J. Enoch, Esq. NICHOLAS J. ENOCH Texas State Bar No. 24042618 [email protected] STANLEY LUBIN Texas State Bar No. 24049352 [email protected] 7362 Remcon Circle El Paso, Texas 79912-1623 (915) 585-8008 (Phone) (602) 626-3586 (Fax)

ATTORNEYS FOR DEFENDANT IBEW LOCAL 960

CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of June, 2011, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:

Dan C. Dargene, Esq. Dallan F. Flake, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 700 Preston Commons

8117 Preston Road Dallas, Texas 75225

Attorneys for the Plaintiff

By: /s/ Nicholas J. Enoch, Esq.

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Page 1

Caution As of: Mar 01, 2016

INTERNATIONAL UNION OF PETROLEUM AND INDUSTRIAL WORKERS, Petitioner-Appellee, v. WESTERN INDUSTRIAL MAINTENANCE, INC., Re-

spondent-Appellant

No. 82-5960

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

707 F.2d 425; 1983 U.S. App. LEXIS 27189; 113 L.R.R.M. 3010; 97 Lab. Cas. (CCH) P10,169

May 3, 1983, Argued and submitted

June 1, 1983 PRIOR HISTORY: [**1] Appeal from the United States District Court for the Central District of California. Manuel L. Real, District Judge, Presiding. CASE SUMMARY: PROCEDURAL POSTURE: Appellant company chal- lenged the order of the United States District Court for the Central District of California, which awarded attor- neys' fees in favor of appellee union pursuant to appel- lant's petition for confirmation of an arbitration award based on a collective bargaining agreement between ap- pellant and appellee. OVERVIEW: Appellant company refused to comply with an arbitration award, which required it to make an employee-grievant whole after a layoff. Appellee union petitioned the district court for confirmation of the award, reinstatement, backpay, and reasonable attorneys' fees pursuant to 29 U.S.C.S. § 185. Appellant opposed the petition on the grounds the award was invalid. The district court granted the relief requested by appellee and appellant sought review. On appeal, the court affirmed the award of attorneys' fees and held that because the arbitrator's decision and award was fully supported and clearly based on the arbitrable layoff issue, the record supported the finding that appellant's refusal to abide by the award was without justification, and the district

court, therefore, did not abuse its discretion in awarding attorneys' fees for the unjustified refusal to abide by ar- bitration. The court refused to award attorneys' fees for the appeal, however, as it concluded that appellant's challenge was not devoid of merit because it did not ap- peal the merits of the confirmation order, and the chal- lenge to the award of attorneys' fees was one of first im- pression in the circuit. OUTCOME: The order awarding attorneys' fees to ap- pellee union was affirmed because the district court's finding was supported by the record, was not clearly er- roneous, and therefore, there was no abuse of discretion in awarding the fees to appellee. However, as appellant company did not contest the merits of the confirmation order and the issue was one of first impression in the circuit, no attorneys' fees were awarded for the appeal. LexisNexis(R) Headnotes Civil Procedure > Remedies > Costs & Attorney Fees > General Overview Commercial Law (UCC) > Sales (Article 2) > Form, Formation & Readjustment > General Overview [HN1] Absent contractual or statutory authorization, a prevailing litigant ordinarily may not collect attorneys' fees. However, a court may assess attorneys' fees when

Page 2 707 F.2d 425, *; 1983 U.S. App. LEXIS 27189, **; 113 L.R.R.M. 3010; 97 Lab. Cas. (CCH) P10,169

the losing party has acted in bad faith, vexatiously, wan- tonly, or for oppressive reasons. Civil Procedure > Appeals > Costs & Attorney Fees Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review [HN2] The circuit court reviews a district court's finding of bad faith under the clearly erroneous standard. If bad faith is found, an award of attorneys' fees is within the district court's discretion. Civil Procedure > Remedies > Costs & Attorney Fees > Attorney Expenses & Fees > Statutory Awards Labor & Employment Law > Collective Bargaining & Labor Relations > Arbitration > Awards [HN3] An unjustified refusal to abide by an arbitrator's award may equate an act taken in bad faith, vexatiously or for oppressive reasons. Bad faith supporting an award of attorneys' fees may be found in conduct that led to the lawsuit or in conduct occurring during the course of the action. Moreover, bad faith may be demonstrated by showing that a defendant's obstinacy in granting a plain- tiff his clear legal rights necessitated resort to legal ac- tion with all the expense and delay entailed in litigation. The award of attorneys' fees in the latter context satisfies a dual purpose — deterrence and compensation. The threat of an award of attorneys' fees tends to deter frivo- lous dilatory tactics. The award also compensates a plaintiff for the added expense of having to vindicate clearly established rights in court. Civil Procedure > Alternative Dispute Resolution > Arbitrations > General Overview Civil Procedure > Remedies > Costs & Attorney Fees > General Overview Labor & Employment Law > Collective Bargaining & Labor Relations > Arbitration > Awards [HN4] Labor arbitration advances the goal of industrial stabilization. Engaging in frivolous dilatory tactics not only denies the individual prompt redress, it threatens the goal of industrial peace. Therefore, the deterrence aspect of an award of attorneys' fees is particularly served where a party, without justification, refuses to abide by an arbitrator's award. Civil Procedure > Alternative Dispute Resolution > Arbitrations > General Overview Civil Procedure > Alternative Dispute Resolution > Judicial Review Civil Procedure > Remedies > Costs & Attorney Fees > General Overview

[HN5] The federal labor policy favoring voluntary arbi- tration dictates that when a refusal to abide by an arbitra- tion decision is without justification, and judicial en- forcement is necessary, the court should award the party seeking enforcement reasonable costs and attorneys' fees incurred in that effort. Civil Procedure > Alternative Dispute Resolution > Arbitrations > General Overview Contracts Law > Defenses > Ambiguity & Mistake > General Overview Labor & Employment Law > Collective Bargaining & Labor Relations > Arbitration > Awards [HN6] An arbitrator's award must be upheld as long as it draws its essence from the agreement. However, arbitra- tion is a matter of contract and a party is bound by an award only if he agreed to submit the issue to arbitration. But a mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for re- fusing to enforce the award. Moreover, federal labor policy favors arbitration. Therefore, in determining whether an arbitrator has exceeded his authority, the agreement must be broadly construed with all doubts resolved in favor of the arbitrator's authority. Civil Procedure > Appeals > Costs & Attorney Fees Civil Procedure > Appeals > Frivolous Appeals Legal Ethics > Professional Conduct > Frivolous Claims [HN7] A circuit court has discretion to award attorneys' fees as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38. An appeal is considered frivolous when the result is obvious or the arguments of error advanced are wholly without merit. Moreover, the considerations which apply to suits to enforce an arbitration award ne- cessitated by frivolous dilatory tactics apply with equal force with regard to frivolous appeals. COUNSEL: Stuart Libicki, Esq., Schwartz, Steinsapir, Dohmann, Krepack, Sommers & Edelstein, Los Angeles, California, for Appellee. James R. Wakefield, Esq., Bodkin, McCarthy Sargent & Smith, Los Angeles, California, for Appellant. JUDGES: Sneed and Tang, Circuit Judges, and Ingram, * District Judge.

* Honorable William A. Ingram, United States District Judge for the Northern District of Cali- fornia, sitting by designation.

Page 3 707 F.2d 425, *; 1983 U.S. App. LEXIS 27189, **; 113 L.R.R.M. 3010; 97 Lab. Cas. (CCH) P10,169

OPINION BY: TANG OPINION

[*426] TANG, Circuit Judge:

Appellant, Western Industrial Maintenance, Inc. ["the company"] appeals from the district court's award of attorneys' fees in favor of appellee, International Un- ion of Petroleum and Industrial Workers ["the union"]. The union petitioned the district court, pursuant to sec- tion 301 (29 U.S.C. § 185) of the Labor-Management Relations Act ["the Act"], for confirmation of an arbitra- tion [*427] award based on a collective bargaining agreement between the company and the union. The district court confirmed the arbitration award and found that [**2] the company's refusal to comply with the award was without justification. Based on this finding, the court awarded attorneys' fees to the union. The company argues that the union did not make a sufficient showing of bad faith to justify the award of attorneys' fees. We conclude that the district court's finding is supported by the record, is not clearly erroneous, and therefore the award of attorneys' fees was not an abuse of discretion.

BACKGROUND

Betty Sparks is a former employee of the company and a member of the union. In September, 1981, she filed a grievance alleging that "the company acted in a discriminatory manner when they" laid her off.

The collective bargaining agreement between the company and the union provides for a grievance proce- dure. The contract also provides for arbitration in the event that the grievance is not resolved. The grievance procedure provides that grievances shall be in writing and "must describe as fully as possible each alleged vio- lation and the related facts."

On February 5, 1982, the grievance was arbitrated. At the commencement of the arbitration, the union posed the following as the issues to be heard and decided:

Did the [**3] company violate the Articles of Agreement when Betty Sparks was laid off on or about September 18, 1981? [hereinafter "layoff issue"]

Has the company violated the Arti- cles of Agreement by not recalling Betty Sparks back to work after being laid off on or about September 18, 1981? [here- inafter "recall issue"]

The company agreed that the layoff issue was properly before the arbitrator. It objected to arbitrating the recall issue, however, on the ground that the griev- ance, as processed through the steps of the grievance procedure, related only to the issue of discriminatory layoff. It argued that consideration of the recall issue could allow the union to lose on the actual grievance which was processed through the underlying grievance procedure but still prevail in the arbitration. After raising its objection, the company requested a recess for "a proper opportunity to prepare" for the recall issue if it was to be included.

The arbitrator denied the recess request. He also declared that because the parties were unable to stipulate as to the issues to be heard and decided, he would "form the issue . . . through the process".

On July 15, 1982, the arbitrator issued [**4] his decision and award in favor of the union. The arbitrator framed the issues as posed by the union. He found that "the company did violate the Articles of Agreement with respect to the Grievant." Under the award, the company was required to make the Grievant whole "from the time of the companies [sic] layoff".

The company refused to comply with the arbitrator's award. The union thereupon petitioned the district court pursuant to section 301 of the Act for confirmation of the award, reinstatement and backpay for Sparks and reasonable attorneys' fees. The company opposed the petition on the grounds that the award was invalid be- cause of the inclusion of the nonarbitrable recall issue and the Arbitrator's award conferred a seniority system on the union which it had not won through collective bargaining.

Following a hearing, the district court granted all re- lief requested by the union. Counsel for the union sub- mitted an affidavit concerning the amount of attorneys' fees incurred. The district court found that the company's refusal to abide by the arbitrator's award was "without justification". It awarded $2,406.25 to the union as a reasonable attorneys' fee. This appeal ensued.

[**5] DISCUSSION

The company appeals only from the district court's award of attorneys' fees. It argues that the union made an insufficient showing of bad faith, vexatiousness, wanton or oppressive conduct to support the fee award. The union asserts that a sufficient [*428] showing was made and the district court's finding that the com- pany's refusal to abide by the arbitrator's award was without justification is not clearly erroneous.

Under the American rule, [HN1] absent contractual or statutory authorization, a prevailing litigant ordinarily may not collect attorneys' fees. Miller-Wohl Co., Inc. v.

Page 4 707 F.2d 425, *; 1983 U.S. App. LEXIS 27189, **; 113 L.R.R.M. 3010; 97 Lab. Cas. (CCH) P10,169

Commissioner of Labor & Industry, 694 F.2d 203, 204 (9th Cir. 1982). However, a court may assess attorneys' fees "when the losing party has 'acted in bad faith, vexa- tiously, wantonly, or for oppressive reasons'." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975).

[HN2] This court reviews a district court's finding of "bad faith" under the clearly erroneous standard. Dog- herra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir.), cert. denied, 459 U.S. 990, 103 S. Ct. 346, 74 L. Ed. 2d 386 (1982). [**6] If bad faith is found, an award of attorneys' fees is within the district court's discretion. Id.

In this case the district court found that "[the com- pany] without justification refused to abide by the Award of Arbitrator Clyde W. Yandell, dated July 15, 1982." Based on this finding, the Court ordered the company to pay the sum of $2,406.25 as attorneys' fees to the union.

The company does not argue that the district court's "without justification" finding does not equate with the criteria set forth in Alyeska Pipeline, supra. The compa- ny's sole argument is that the record does not support the finding that its refusal to abide by the arbitrator's award was without justification.

In any event, we agree with other circuits which have confronted this issue and conclude that [HN3] an unjustified refusal to abide by an arbitrator's award may equate an act taken in bad faith, vexatiously or for op- pressive reasons. See, e.g., Int'l Ass'n of Machinists & Aerospace Workers Dist. 776 v. Texas Steel Co., 639 F.2d 279, 283-284 (5th Cir. 1981); see also Lackawanna Leather Co. v. United Food and Commercial Workers, Dist. 271, 706 F.2d 228 (8th Cir. 1983) [**7] (en banc); cf. Chauffeurs Teamsters and Helpers, Local 765 v. Stroehmann Brothers Co., 625 F.2d 1092, 1094 (3d Cir. 1980). It is clear that bad faith supporting an award of attorneys' fees may be found in conduct that led to the lawsuit or in conduct occurring during the course of the action. Hall v. Cole, 412 U.S. 1, 15, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973); Dogherra v. Safeway Stores, Inc., 679 F.2d at 1298. Moreover, "bad faith may be demonstrated by showing that a defendant's obstinancy in granting a plaintiff his clear legal rights necessitated resort to legal action with all the expense and delay en- tailed in litigation." Huecker v. Milburn, 538 F.2d 1241, 1245 n.9 (6th Cir. 1976). The award of attorneys' fees in the latter context satisfies a dual purpose — deterrence and compensation. The threat of an award of attorneys' fees tends to deter frivolous dilatory tactics. The award also compensates a plaintiff "for the added expense of having to vindicate clearly established rights in court." Id.

These considerations are particularly apt in the con- text of labor arbitration. It is generally [**8] recog- nized that [HN4] labor arbitration advances the goal of industrial stabilization. See United Steelworkers of America v. Warrior & Gulf Navigation, 363 U.S. 574, 577-578, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960). En- gaging in frivolous dilatory tactics not only denies the individual prompt redress, it threatens the goal of indus- trial peace. Therefore, the deterrence aspect of an award of attorneys' fees is particularly served where a party, without justification, refuses to abide by an arbi- trator's award. This policy has been succinctly stated by the Fifth Circuit Court of Appeals:

"We refuse to countenance frivolous and wasteful judicial challenges to con- scientious and fair arbitration decisions." . . . [HN5] The federal labor policy favor- ing voluntary arbitration dictates that when a refusal to abide by an arbitration decision is without justification, and judi- cial enforcement is necessary, the court should award the party seeking enforce- ment [*429] reasonable costs and at- torneys' fees incurred in that effort. This sanction is necessary lest federal labor policy be frustrated by judicial condona- tion of dilatory tactics that lead to waste- ful and unnecessary [**9] litigation.

Int'l Ass'n of Machinists & Aerospace Workers Dist. 776 v. Texas Steel Co., 639 F.2d at 284 (citation omitted).

In this case, absent justifiable grounds for asserting invalidity, the arbitrator's decision and award was final and binding. The award set forth clear legal rights which the company refused to satisfy. This refusal gave rise to the necessity to petition the district court for enforcement of that right with the attendant delay and expense.

The company maintains that it was justified in ig- noring the award because it considered the award to be invalid. The applicable collective bargaining agreement provides that issues must first proceed through the grievance procedure before they become arbitrable. The company argues that the recall issue was not processed through the grievance procedure. It was raised for the first time at the arbitration hearing and therefore was not a proper subject for arbitration. The company contends that because the arbitrator erred in considering the nonarbitrable recall issue and because the arbitrator's award was ambiguous — making it impossible to discern

Page 5 707 F.2d 425, *; 1983 U.S. App. LEXIS 27189, **; 113 L.R.R.M. 3010; 97 Lab. Cas. (CCH) P10,169

whether the award was premised on the nonarbitrable [**10] issue — it was not bound by the award.

The company's argument does not withstand analy- s