

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1031

                   LOCAL 285, SERVICE EMPLOYEES
                  INTERNATIONAL UNION, AFL-CIO,

                      Plaintiff - Appellant,

                                v.

               NONOTUCK RESOURCE ASSOCIATES, INC.,

                      Defendant - Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Frank H. Freedman, U.S. District Judge]                                                                

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Bownes, Senior Circuit Judge,                                                        

                    and Stahl, Circuit Judge.                                                      

                                           

     David  B. Rome,  with whom  Lois  Johnson, Angoff,  Goldman,                                                                           
Manning, Pyle, Wanger &amp; Hiatt, P.C., were on brief for appellant.                                             
     Albert R. Mason for appellee.                              

                                           

                         August 31, 1995
                                           

           TORRUELLA, Chief Judge.   Local 285, Service  Employees                    TORRUELLA, Chief Judge.                                          

International  Union,  AFL-CIO,  CLC  ("the  Union"),   submitted

grievances for  two discharged  employees, Justin  Onanibaku (the

"Onanibaku grievance") and Mildred Singh (the "Singh grievance"),

pursuant to the grievance/arbitration procedure contained  in its

collective   bargaining   agreement    with   Nonotuck   Resource

Associates,  Inc. ("the Company").   The Union  alleged that both

employees  were discharged  without "just  cause."   The  Company

refused  to  submit  to  arbitration,  maintaining  that  neither

grievance   was  arbitrable   under  the   collective  bargaining

agreement.  The Union then filed the instant action in the United

States District Court for the District of Massachusetts, pursuant

to    301 of the Labor Management Relations  Act, 29 U.S.C.   185

(1982), to compel the Company to arbitrate both grievances.  Upon

cross-motions for  summary judgment,  the district court  ordered

the  Company to  arbitrate  the  grievances,  and  rejected  both

party's  motions for  attorneys'  fees.   The  Union appeals  the

denial  of its  request  for  attorneys' fees.1    We affirm  the

denial of attorneys' fees with  respect to one of the grievances,

reverse the denial  of attorneys' fees with respect  to the other

grievance,  and remand  the case  to the  district court  for the

calculation of fees.

                            DISCUSSION                                      DISCUSSION

                                                  

1  The Company does not appeal the district court's decision that
the grievances are arbitrable.

                               -2-

           In deciding not to award the Union its attorneys' fees,

the district  court reasoned  that "even  though [the  Company's]

contentions fell short -- a good faith dispute existed as  to the

proper  venue for  this case."   We  review the  district court's

decision  only for  "abuse  of  discretion."    Crafts  Precision                                                                           

Indus., Inc. v.  Lodge No. 1836, Int'l Assoc.  of Machinists, 889                                                                      

F.2d 1184, 1186 (1st Cir. 1989).

          A.   The Proper Standard                    A.   The Proper Standard                                            

          As  an  initial  matter,  the  Union  argues  that  the

district court analyzed the question  of attorneys' fees under an

improper standard.  The Union argues that the court's  use of the

phrase "good faith dispute" indicates that it improperly required

the Union  to show  bad faith  on the  part of  the Company  as a

prerequisite to a fee award.  The Union maintains that, under the

proper standard,  all it  needed to show  was that  the Company's

refusal  to  arbitrate  was objectively  "without  justification"

under  the terms  of  the  collective  bargaining  agreement  and

controlling law, and that the Company's subjective good faith  is

therefore irrelevant.   The  Company, on  the other  hand, argues

that the district court correctly applied a bad faith test.

          Under  the   so-called  "American   Rule,"  absent   an

authorizing   statute   or  contractual   commitment,   litigants

generally  bear  their  own  costs.    Aleyska  Pipeline  Co.  v.                                                                       

Wilderness  Soc'y,  421  U.S.  240,  257  (1974).    One  of  the                           

exceptions to  this rule, however, is that  a court may award the

prevailing party  its attorney's fees  if it determines  that the

                               -3-

 losing  party  has  "acted  in bad  faith,  vexatiously,  or  for

oppressive reasons . . . ."  Id. at 258-59 (quoting F.D. Rich Co.                                                                           

v. United States  ex rel. Indus.  Lumber Co., 417  U.S. 116,  129                                                      

(1974)).   See also  Cote v. James  River Corp., 761  F.2d 60, 61                                                         

(1st Cir. 1985).   "[T]he term 'vexatious' means  that the losing

party's  actions  were   'frivolous,  unreasonable,  or   without

foundation,  even though not  brought in subjective  bad faith.'"

Washington Hosp. Ctr. v. Service  Employees Int'l Union, 746 F.2d                                                                 

1503, 1510 (D.C.  Cir. 1984) (quoting Christiansburg  Garment Co.                                                                           

v. EEOC, 434  U.S. 412, 421 (1978)).  See  also Crafts Precision,                                                                          

889 F.2d at 1186.

          It  is clear, therefore, that contrary to the Company's

assertions, subjective bad  faith is not a prerequisite  to a fee

award.  Moreover, contrary  to the Union's suggestions, we  think

that  the district  court's citation  to  Courier-Citizen Co.  v.                                                                       

Boston Electrotypers  Union No. 11,  702 F.2d 273, 282  (1st Cir.                                            

1983), which  recites a  "without justification"  test, indicates

that the court  understood the proper  standard, and merely  used

the term "good faith dispute"  to refer to what it considered  an

objectively  and  subjectively  reasonable  dispute  between  the

parties  over  the interpretation  of  the collective  bargaining

agreement and controlling law.   We therefore reject the  Union's

argument that  the district court applied an improper standard of

review.

          B.   The Two Grievances                    B.   The Two Grievances                                           

                               -4-

           The Company  refused to  arbitrate either grievance  on

the grounds that they were not  arbitrable under the terms of the

collective-bargaining  agreement.    The question  on  appeal  is

whether either or both of  the grievances were so clearly subject

to arbitration  under  the collective  bargaining  agreement  and

controlling law  that we can  say that the district  court abused

its discretion in concluding that the Company's refusal to submit

to  arbitration  was  not  frivolous,  unreasonable,  or  without

justification.

          We begin  by recognizing the  general rule that  when a

collective bargaining  agreement contains an  arbitration clause,

such as the one in this case, "a presumption of arbitrability [is

created]  in  the  sense  that  '[a]n  order   to  arbitrate  the

particular grievance should  not be denied unless it  may be said

with  positive assurance  that  the  arbitration  clause  is  not

susceptible  of  an  interpretation   that  covers  the  asserted

dispute.  Doubts should be resolved in favor of coverage.'"  AT &amp;                                                                           

T Technologies,  Inc. v. Communications Workers of  Am., 475 U.S.                                                                 

643,  650  (1986)   (quoting  Steelworkers  v.  Warrior   &amp;  Gulf                                                                           

Navigation Co., 363 U.S.  574, 582-83 (1960)).  It  is also true,                        

however, that  "arbitration is a  matter of contract and  a party

cannot be required to submit  to arbitration any dispute which he

has  not agreed  so to submit."   Id.  at 648 (quoting  Warrior &amp;                                                                           

Gulf, 363 U.S. at 582).              

            1.  The Onanibaku Grievance                      1.  The Onanibaku Grievance                                                 

                               -5-

           The  Company   argued  on  summary  judgment  that  the

Onanibaku  grievance was  not  arbitrable  under the  collective-

bargaining   agreement   because  Onanibaku   alleged   that  his

discipline  was discriminatorily  motivated.   Article  5 of  the

collective  bargaining  agreement  provides  that  "[n]o  dispute

regarding alleged discrimination shall be subject to grievance or

arbitration  unless no remedy  therefore is provided  by State or

federal law."   The Union argues that the  Company's position was

without justification because the terms of the grievance filed by

the  Union on  behalf of  Onanibaku  alleged merely  that he  was

discharged without just cause; it did not mention discrimination.

The   Union  points  out   that,  as  the   certified  bargaining

representative,  the labor organization, not the employee, is the

master of the grievance.  See Republic Steel Corp. v. Maddox, 379                                                                      

U.S. 650, 653  (1965) (union has no duty  to pursue unmeritorious

grievances); Miller v. United States Postal Serv., 985 F.2d 9, 12                                                           

(1st Cir.  1993).  The  Union also points  out that it  wrote the

Company a letter  specifically stating that  it was not  alleging

discrimination.

          We think the district court acted within its discretion

in concluding that  the Company's defense to the arbitrability of

the  Onanibaku grievance was  not so frivolous,  unreasonable, or

without  justification as  to  warrant  imposition of  attorneys'

fees.  The fact is that Onanibaku alleged, prior to the filing of

the   grievance,  that   his   discipline  was   discriminatorily

motivated.   Moreover, he filed  a charge with  the Massachusetts

                               -6-

 Commission  Against   Discrimination,  and  filed   civil  rights

complaints  with  the  Northampton   Police,  alleging  that  the

disciplinary action was discriminatorily  motivated.  Under these

circumstances, we do not find  it so unreasonable for the Company

to assert the position that a claim  of discrimination was at the

heart  of  the Onanibaku  grievance, and  that the  grievance was

therefore  not arbitrable.   This  was  an issue  of "substantive

arbitrability," thesignificance ofwhich weshall presentlydiscuss.

            2.  The Singh Grievance                      2.  The Singh Grievance                                             

          The Company refused to arbitrate the Singh grievance on

the  grounds  that  it  was  not filed  within  the  time  limits

established in Article 20 of the collective bargaining agreement.

Article 20 provides  that any grievance must be  presented to the

employee's appropriate  supervisor "no  later  than fifteen  (15)

calendar  days  following  the  date  of  the  grievance  or  the

Employee's  knowledge  of  its  occurrence."    Article  20  also

provides:  "The  time   limits  provided  in  this   article  are

conditions  precedent for the filing and processing of grievances

under  this Article."   The  district court  held that  the Singh

grievance   was   arbitrable,   reasoning   that   "because    an

'untimeliness'  defense   is  a   classic   case  of   procedural                                                   

arbitrability  that should  be decided  by  the arbitrator,  [the

Company's] contention  to the contrary will  prove unsuccessful."

(emphasis added).   Again, the court declined to  award the Union

its attorneys'  fees.   Our discussion of  this issue  must begin

with the  distinction  between  "substantive  arbitrability"  and

                               -7-

 "procedural arbitrability."   Substantive arbitrability refers to

whether a dispute involves a subject matter that the parties have

contractually agreed to submit to arbitration.  See International                                                                           

Bhd. of Elec.  Workers, Local 1228, AFL-CIO v.  WNEV-TV, New Eng.                                                                           

Television Corp., 778 F.2d 46, 49 (1st  Cir. 1985).  For example,                          

the   Onanibaku  grievance   raised   a  matter   of  substantive

arbitrability   --  the  parties  to  the  collective  bargaining

agreement  specifically   agreed  not  to   arbitrate  grievances

alleging discrimination.   Thus,  the question  for the  district

court was whether the Onanibaku grievance alleged discrimination.

Procedural arbitrability, on the other hand, concerns such issues

as to "whether grievance procedures or some part of them apply to

a  particular dispute, whether such procedures have been followed

or  excused, or  whether  the unexcused  failure  to follow  them

avoids the duty  to arbitrate."  John Wiley &amp; Sons v. Livingston,                                                                          

376 U.S. 543, 557 (1964).  See also Beer Sales Drivers, Local 744                                                                           

v. Metropolitan Distribs.,  Inc., 763 F.2d 300,  302-03 (7th Cir.                                          

1985).  In John Wiley,  the Supreme Court established that issues                               

of substantive  arbitrability are  for the  court to  decide, and

issues  of procedural  arbitrability are  for  the arbitrator  to

decide.  "Once it is determined [by a court] that the parties are

obligated  to  submit  the  subject   matter  of  a  dispute   to

arbitration, 'procedural' questions which grow out of the dispute

and  bear  on  its  final  disposition  should  be  left  to  the

arbitrator."  376 U.S. at 557.

                               -8-

           Thirty years of Supreme Court and federal circuit court

precedent have established that  issues concerning the timeliness

of a  filed grievance  are "classic"  procedural questions to  be

decided  by an arbitrator, a description appropriately adopted by

the district court.  See  supra p.7.  Unfortunately, the district                                         

court  failed  to   properly  apply  the  consequences   of  this

description.  Because  the law  is clear on  this issue, and  has

been  for some  time, the  Company was  without justification  in

refusing  to arbitrate  the Singh grievance,  and in  forcing the

Union  to litigate its  arbitrability in federal  district court.

We  conclude that  the  district court  abused its  discretion in

holding to the contrary.

          The Company argues that the timeliness requirement  was

a  bargained-for   "condition  precedent"   to  arbitration   and

therefore that it  is for the court to decide whether the parties

intended to arbitrate  this particular grievance.  In  support of

this  argument, the Company  notes the Supreme  Court's statement

that  "[i]n  the absence  of  any express  provision  excluding a

particular  grievance  from arbitration,  .  .  . only  the  most

forceful  evidence  of  a  purpose  to  exclude  the  claim  from

arbitration can prevail."   AT &amp; T Technologies, 475  U.S. at 650                                                         

(quoting Warrior &amp; Gulf, 363 U.S. at 584-85).  The Company argues                                 

that  this  is  a  case  of  an  express  provision  excluding  a

particular  grievance from  arbitration,  and  maintains that  to

conclude otherwise is  to deprive the Company of  the benefits of

its bargain.

                               -9-

           The  Company's position  misapprehends the  distinction

between substantive and procedural arbitrability.  In John Wiley,                                                                          

the employer maintained that it had no duty to arbitrate because:

(1)  the collective  bargaining agreement  set  out a  three-step

grievance  procedure, and  the  first  two  steps  had  not  been

followed, 376 U.S. at 555-56;  and (2) the union allegedly failed

to  comply with the following provision of the agreement: "Notice

of  any grievance must  be filed with  the Employer  and with the

Union Shop Steward within four  (4) weeks after its occurrence or

latest  existence.   The  failure  by either  party  to file  the

grievance  within this time limitation shall  be construed and be

deemed to be an abandonment of the  grievance."  Id. at 556 n.11.                                                             

As noted,  the Court  held that  once it  is determined  that the

parties are  obligated to  arbitrate the  subject  matter of  the

dispute, then any procedural questions growing out of the dispute

and  bearing on  its  final  disposition should  be  left to  the

arbitrator.  Id. at 557.                         

          The John Wiley Court reasoned that, because the role of                                  

a reviewing court is only to determine whether the subject matter

of the dispute is arbitrable under the agreement, and not to rule

on the merits  of the dispute,  and because procedural  questions

are often inextricably  bound up with the merits  of the dispute,

procedural  questions should be  decided by the  arbitrator along

with the merits.  See id. at 557.                                  

          There is no  principled distinction between the  timing

issue deemed  procedural in  John Wiley and  the timing  issue in                                                 

                               -10-

 this case.   Both are "conditions precedent"  to arbitration; but

the  fact that something is a  condition precedent to arbitration

does not  make  it  any less  a  "'procedural'  question[]  which

grow[s] out of the dispute and bear[s] on its final disposition .

. . ."  The dispute in this case concerns whether Singh was fired

without just cause --  a cause of  action clearly covered by  the

arbitration clause  contained in  the agreement.   The  Company's

timeliness defense is merely a procedural question arising out of

that dispute.

          Supreme Court and circuit  court cases demonstrate that

this  rule  is  clear  and  well-established.    For example,  in

International  Union of Operating Eng'rs v. Flair Builders, Inc.,                                                                          

406 U.S. 487  (1972), the Supreme Court held that  once the court

determines that the subject matter of a dispute is covered by the

collective  bargaining  agreement, then  a  claim by  one  of the

parties  that the particular grievance is barred by the equitable

defense of  laches is  a question for  the arbitrator  to decide.

Id. at 491-92.   Similarly, in Trailways v.  Amalgamated Ass'n of                                                                           

Street,  Elec. Ry.  &amp; Motor  Coach Employees,  343 F.2d  815 (1st                                                      

Cir.), cert. denied, 383 U.S. 879 (1965), this court rejected the                             

employer's  argument  that  the  union  failed  to  file  certain

grievances within the  time conditions imposed by  the collective

bargaining agreement.   We cited  John Wiley for  the proposition                                                      

that: "The company's contention that the union failed to file the

grievances  relating to  discharge of  the  employees within  the

requisite  time limits,  is without  merit.   It  can raise  that

                               -11-

 defense before the arbitrator but not before this court."  Id. at                                                                        

818.   See also Bechtel  Constr., Inc. v. Laborers'  Int'l Union,                                                                          

812 F.2d 750, 753 (1st Cir. 1987) (failure to submit grievance to

committee, as required by step grievance procedure, is "a classic

question of  'procedural  arbitrability' for  the  arbitrator  to

decide").

          The  employer in Chauffeurs, Teamsters &amp; Helpers, Local                                                                           

Union 765 v. Stroehmann Bros. Co., 625 F.2d  1092 (3d Cir. 1980),                                           

made  an argument almost identical to that of the Company in this

case.   The employer argued  that a grievance was  not arbitrable

because the submission  to the  American Arbitration  Association

was untimely, and maintained "that the court, not the arbitrator,

must make the determination that all preconditions to arbitration                                                                           

have been met."   Id. at 1093 (emphasis added).  The court easily                              

rejected this argument:

            [T]he  significance   of  a   default  in
            literal  compliance  with  a  contractual
            procedural   requirement   calls   for  a
            determination  of  the intention  of  the
            parties  to   the  contract.     Such   a
            determination  is  no different  in  kind
            from   a  dispute   over  a   substantive
            contract  provision.     Both   types  of
            determinations are,  under the  governing
            case law, matters for the arbitrator.

Id.            

          A plethora of circuit court cases have interpreted John                                                                           

Wiley in the  same or  similar fashion.   See, e.g., Denhardt  v.                                                                       

Trailways, Inc., 767  F.2d 687, 689 (10th Cir.  1985) (dispute as                         

to employer's compliance with time limit for conducting a hearing

is a procedural matter for arbitrator); Beer Sales Drivers, Local                                                                           

                               -12-

 744 v.  Metropolitan Distribs., Inc.,  763 F.2d 300,  302-03 (7th                                              

Cir.  1985) (union's  alleged  failure  to  submit  its  members'

grievances  within time limitation  specified in agreement  is an

issue of procedural arbitrability for arbitrator); Nursing Home &amp;                                                                           

Hosp. Union 434 v. Sky Vue Terrace, Inc., 759 F.2d 1094, 1097 (3d                                                  

Cir.  1985)  ("the  law  is  clear  that  matters  of  procedural

arbitrability,  such as  time  limits,  are to  be  left for  the

arbitrator");   Automotive, Petroleum  &amp; Allied Indus.  Employees                                                                           

Union, Local 618 v. Town &amp; Country  Ford, Inc., 709 F.2d 509 (8th                                                        

Cir. 1983) (whether grievance was  barred from arbitration due to

union's  alleged failure to  submit complaint to  employer within

five days from notice of  discharge, as required by agreement, is

question of procedural arbitrability for arbitrator); Hospital  &amp;                                                                           

Inst. Workers Union Local 250 v. Marshal Hale Memorial Hosp., 647                                                                      

F.2d 38, 40-41 (9th Cir. 1981) (alleged noncompliance with timing

requirements of a  multiple step procedure is a  question for the

arbitrator); United Rubber,  Cork, Linoleum &amp; Plastic  Workers v.                                                                        

Interco, Inc.,  415 F.2d 1208, 1210 (8th  Cir. 1969) (arbitration                       

ordered despite  union's failure  to file  arbitration within  90

days).  The Company has directed us to no cases to the contrary.

          In  Washington  Hospital  Center,  supra, the  employer                                                            

argued that  a  grievance was  not arbitrable  because the  union

failed  to follow the  timing requirements of  the step-grievance

process.   Relying on John  Wiley, the  Court of Appeals  for the                                           

District  of Columbia found  that the employer's  position on the

grievance was "sufficiently frivolous and unreasonable to warrant

                               -13-

 a  fee award."   Washington Hosp. Ctr.,  746 F.2d at  1510.2  The                                                

court reasoned  that the  employer's position  was frivolous  and

unreasonable since  it made  no attempt  to distinguish its  case

from the facts  of John Wiley, and relied solely on an inapposite                                       

case from another circuit.  Id. at 1510-11.                                        

          The Union in this case  relied heavily on John Wiley in                                                                        

its memorandum  in support  of its motion  for summary  judgment.

Nevertheless, the  Company made  no attempt  to distinguish  John                                                                           

Wiley  in its  responsive memorandum.   Indeed,  it did  not even               

mention   the  case.    Instead,  it  relied  almost  exclusively

(although cursorily)  on a case  from the Massachusetts  Court of

Appeals decided under  state, not federal law.   The Company does

little  better  on  appeal,  citing  two  pre-John  Wiley  cases,                                                                   

including one  from this circuit, for the proposition that: "This

court has held  that it is for  'the courts to  determine whether

                                                  

2  The  court noted that John  Wiley created a clear  and certain                                              
rule with regard to procedural  arbitrability.  We agree with its
comment that:

            The benefits  of the rule's  certainty --
            that  all   disputes  as   to  procedural                               
            arbitrability are  for the  arbitrator --
            outweigh any countervailing  factors.  As
            the  Supreme  Court  said in  Wiley,  any                                                         
            other rule would engender  delay with the
            potential  to  'entirely   eliminate  the
            prospect   of    a   speedy    arbitrated
            settlement   of  the   dispute,  to   the
            disadvantage of  the parties  .  . .  and
            contrary  to the  aims of  national labor
            policy.'"

Id. at 1512 (quoting John Wiley, 376 U.S. at 558).                                         

                               -14-

 procedural   conditions  to  arbitrate  have  been  met.'"3    As                                 

demonstrated above,  it is clear  that this  proposition did  not

survive John Wiley.  Moreover, in its sole attempt to distinguish                            

John Wiley, the  Company compares the time bar  provisions of its                    

collective-bargaining agreement with a wholly immaterial contract

provision from John  Wiley.4  Finally,  the Company has  directed                                    

this court to  no federal circuit or district  court precedent to

support its position.
                                                  

3  The two cases cited are Boston Mut. Life Ins. Co. v. Insurance                                                                           
Agents Int'l  Union, 258  F.2d 516  (1st Cir.  1958) and  Brass &amp;                                                                           
Copper Workers Fed. Labor Union  No. 19322 v. American Brass Co.,                                                                          
272 F.2d 849 (7th Cir. 1959), cert. denied, 363  U.S. 845 (1960).                                                    
The  Company also  indicates that  one  of these  cases --  it is
somewhat unclear which -- is "quoting from" John Wiley.  This is,                                                                
of course,  a rather  dubious proposition  considering that  both
cases were decided  before John Wiley.  We will  give the Company                                               
the benefit of the doubt that it  intended to say "cited in" John                                                                           
Wiley, as  both cases are  cited therein as examples  of circuits               
that have held that  it is for the court  to determine procedural
questions,  John  Wiley,  376 U.S.  at  556  n.12, a  proposition                                 
rejected by John Wiley and its progeny.  Supra.                                                        

4  The Company's brief states:

            "Compared with  the defendant's  contract
            language which  plainly states  'The time
            limits  provided  in   this  Article  are
            conditions precedent  for the  filing and                                                               
            processing  of   grievances  under   this                                                               
            Article                             
            .  .  .,  we  submit  that  there  is  no
            comparison or similarity  to Wiley, who's                                                        
            [sic] contract language  simply holds 'No
            dispute alleging discrimination  shall be
            subject  to   grievance  or   arbitration
            unless no remedy therefore is provided  .
            . .'"  (emphasis in original).

   In fact, the actual time bar  at issue in John Wiley was  very                                                                 
similar to that  in this case.   It stated that: "The  failure of
either party to  file the grievance  within this time  limitation
shall  be construed  and be  deemed to  be an abandonment  of the
grievance."  373 U.S. at 556 n.11.

                               -15-

           Under these  extraordinary circumstances, we  think the

Company's position  regarding the  Singh grievance  has been  and

continues to be frivolous,  unreasonable, and without foundation.

We conclude  that  the district  court abused  its discretion  in

deciding to  the contrary.5   Accordingly, we remand the  case to

the district court to assess and impose attorneys' fees and costs

upon   the  Company  for  its  refusal  to  arbitrate  the  Singh

grievance.

                            CONCLUSION                                      CONCLUSION

          For  the reasons  stated herein,  the  decision of  the

district court is affirmed in part and reversed in  part, and the                                                                  

case is remanded  to the district  court for further  proceedings                          

consistent with this opinion.

                                                  

5  In making this determination, we find some significance in the
fact  that the district court offered  virtually no rationale for
its decision not to award attorneys' fees on the Singh grievance,
despite  its recognition  that "an  'untimeliness'  defense is  a
classic case of  procedural arbitrability that should  be decided
by the arbitrator . . . ."

                               -16-
