
USCA1 Opinion

	




                            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 & 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 &                                                                       ____          T Technologies,  Inc. v. Communications Workers of  Am., 475 U.S.          _____________________    ______________________________          643,  650  (1986)   (quoting  Steelworkers  v.  Warrior   &  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 &                                            __                    _________          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 & 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 & T Technologies, 475  U.S. at 650                                      ___________________          (quoting Warrior & 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.  & 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 & 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 &                                                             ______________          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  & Allied Indus.  Employees                          _________________________________________________          Union, Local 618 v. Town & 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  &                                                                ___________          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 & 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 &          ___________________                                       _______          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-
