FILED

NOT FOR PUBLICATION OCT 23 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PACIFIC GAS & ELECTRIC No. 12-17309

COMPANY,

D.C. No. 4:10-cv-05288-SBA Plaintiff-counter-defendant - Appellee,

MEMORANDUM*

v.

SEIU LOCAL 24/7,

Defendant-counter-claimant - Appellant.

Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted October 7, 2014 San Francisco, California

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation. Defendant SEIU Local 24/7 appeals from the district court’s order denying

the union’s motion for attorneys’ fees. We have jurisdiction under 28 U.S.C. §

1291 and we affirm.

This court reviews “the denial of attorney’s fees for abuse of discretion, and

must affirm unless the district court applied the wrong legal standard or its findings

were illogical, implausible or without support in the record.” TrafficSchool.com,

Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011) (internal citations omitted).

The district court did not abuse its discretion here.

Attorneys’ fees are appropriate as a sanction when a party acts in bad faith or

engages in conduct tantamount to bad faith. Fink v. Gomez, 239 F.3d 989, 994 (9th

Cir. 2001). A refusal to obey an arbitral order may constitute bad faith conduct.

Int’l Union of Petroleum & Indus. Workers v. W. Indus. Maint., 707 F.2d 425, 428

(9th Cir. 1983). However, a challenge to an arbitral order on the ground that an

arbitrator did not apply or misinterpreted the underlying contract does not

necessarily constitute bad faith.

This court has already decided this issue. In Federated Department Stores v.

United Foods and Commercial Workers Union, Local 1442, a company brought a

suit to vacate an arbitrator’s award on the ground that his decision contradicted the

contract’s language. 901 F.2d 1494, 1495–96 (9th Cir. 1990). As in this case, the

-2- panel disagreed and found the interpretation plausible. Id. at 1497. This court

nevertheless rejected the union’s request for attorneys’ fees because there was “no

evidence that the Company brought this action in bad faith.” Id. at 1498 (citing

Sheet Metal Workers Int’l Ass’n Local Union # 420 v. Kinney Air Conditioning

Co., 756 F.2d 742, 747 (9th Cir. 1985)).

In light of Federated Department Stores, the district court did not abuse its

discretion.

AFFIRMED.

-3-

FILED

Pacific Gas & Electric Company v. SEIU Local 24/7, No. 12-17309 OCT 23 2014

MOLLY C. DWYER, CLERK

WATFORD, Circuit Judge, concurring: U.S. COURT OF APPEALS

The union has made a strong showing that PG&E’s petition to vacate the

arbitrator’s award was entirely frivolous. The magistrate judge agreed with the

union’s position in the proceedings below, and had we been reviewing that

decision, I would have voted to affirm the imposition of sanctions without

hesitation. But the district judge who ruled on the merits of PG&E’s petition—and

ultimately denied it in fairly strong language—came out differently on the question

of frivolousness. In this circuit, we review that determination only for an abuse of

discretion, and I can’t say that the district court’s conclusion, although different

from my own, was “illogical, implausible, or without support in inferences that

may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262

(9th Cir. 2009) (en banc).