Performance Mechanical, Inc. v. Operating Engineers Local Union No. 3

MEMORANDUM ^**

Performance Mechanical, Inc. (PMI) appeals the district court’s order denying it an award of attorney’s fees after it prevailed in an action against Operating Engineers Local Union No. 3. We affirm.

We agree that the district court had authority to make an award of fees, if it decided that the Union had acted in bad faith. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975); Fink v. Gomez, 239 F.3d 989, 991-92 (9th Cir.2001); Ass’n of Flight Attendants v. Horizon Air Indus., Inc., 976 F.2d 541, 548-50 (9th Cir.1992); Beaudry Motor Co. v. Abko Props., Inc., 780 F.2d 751, 756 (9th Cir.1986); Int’l Union of Petroleum Workers v. W. Indus. Maint., Inc., 707 F.2d 425, 428 (9th Cir.1983). However, on this record we cannot say that the district court clearly erred when it denied fees because it was “not established that the [Union] acted in bad faith.” See Native Vill. of Quinhagak v. United States, 307 F.3d 1075, 1079 (9th Cir.2002) (standard of review); Int’l Union, 707 F.2d at 428 (same).

Both PMI and the Union ask for fees on appeal. But PMI has not been victorious, and, in any event, neither party’s position is so frivolous or meritless as to warrant an award of fees. See Fed. R.App. P. 38; Beaudry Motor, 780 F.2d at 757; Int’l Union, 707 F.2d at 430.

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.