Newspaper Guild of Salem, Local 105 of the Newspaper Guild v. Ottaway Newspapers, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1878

THE NEWSPAPER GUILD OF SALEM,
LOCAL 105 OF THE NEWSPAPER GUILD,

Plaintiff - Appellant,

v.

OTTAWAY NEWSPAPERS, INC.,
THE SALEM NEWS PUBLISHING COMPANY, INC.,
AND ESSEX COUNTY NEWSPAPERS,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Ruth A. Bourquin, with whom Lois Johnson and Angoff,

Goldman, Manning, Pyle, Wanger & Hiatt, P.C. were on brief for

appellant.
Richard A. Perras, with whom Steven M. Cowley and Edwards &

Angell were on brief for appellees.

April 3, 1996

TORRUELLA, Chief Judge. Plaintiff-Appellant The
TORRUELLA, Chief Judge

Newspaper Guild of Salem, Local 105 of the Newspaper Guild, (the

"Guild") appeals the district court's denial of its request for

injunctive relief against Defendants-Appellees Ottaway

Newspapers, Inc., The Salem News Publishing Co., and Essex County

Newspapers (together, the "Publisher"). The district court

denied the Guild's request for (i) an order compelling the

Publisher to submit to arbitration grievances arising under their

collective bargaining agreement concerning the Publisher's

obligations to bargain a successor agreement and to honor the

terms of their present agreement until those negotiations

concluded and (ii) an order enjoining the Publisher from laying

off members of the Guild, pending resolution of the Guild's

grievances. For the following reasons, we dismiss the appeal in

part as moot, and affirm in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND
FACTUAL AND PROCEDURAL BACKGROUND

This case stems from the merger and consolidation of

three newspapers. Essex County Newspapers ("ECN"), an

unincorporated division of Ottaway Newspapers, Inc., publishes

The Beverly Times and The Peabody Times, daily newspapers, from

its plant in Beverly, Massachusetts. Effective March 15, 1995,

ECN completed its acquisition of The Salem Evening News, a daily

newspaper, published in Salem, Massachusetts. This acquisition

was completed through the merger of the prior owner, the Salem

News Publishing Company, into the Salem News Publishing Company,

Inc., a wholly-owned subsidiary of Ottaway Newspapers, Inc. ECN

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is consolidating the three newspapers into one publication to be

called The Salem Evening News. This consolidated daily is to be

published from ECN's Beverly facility, which is less than five

miles from the less modern Salem plant.

The district court noted that this consolidation was

the principal reason for ECN's acquisition and that it required a

reduction in the work force in order to avoid duplication. For

over fifty years, the Guild has been the collective bargaining

representative for the employees of the publisher of The Salem

Evening News. The most recent collective bargaining agreement

between the Guild and the former publisher of The Salem Evening

News expired on March 31, 1995 (the "Agreement").1 Under

Article 15 of the Agreement, its terms and conditions remain in

effect during negotiations for a successor agreement.2

1 By its original terms, the Agreement was to expire on
September 30, 1994; but, it was extended until March 31, 1995, by
agreement of the parties. The Guild contends that the Agreement
was extended because of the then pending acquisition and due, in
part, to the Publisher's representations that a "new Agreement"
would contain enhancements or improvements of the existing
Agreement.

2 ARTICLE 15. Duration and Renewal

15.1 This Agreement shall commence on the
9th day of November, 1993, and expire on the
30th day of September, 1994, and shall inure
to the benefits of and be binding upon the
successors and assigns of the Publisher.

15.2 Within eighty (80) days, and not less
than thirty (30) days prior to the
termination of this Agreement, the Publisher
or the Guild may initiate negotiations for a
new Agreement to take effect April 1, 1995,
the new contract shall be made retroactive to
September 30, 1994.

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In January 1995, the Guild timely initiated

negotiations for a successor agreement, and the first substantive

bargaining session occurred on March 30, 1995. At that time, the

Publisher began negotiations with all of the unions, including

the Guild, at the Salem facility and presented the same basic

proposal to each: elimination of jobs in Salem due to the

consolidation, and layoff severance packages for those employees

not offered employment in the consolidated operation. In a

letter dated April 14, 1995, the Publisher communicated to the

Guild "that [its] proposal is to negotiate a merger/consolidation

agreement and not a long-term contract which [it] believe[s]

would not be appropriate because a question of representation may

be presented." (Appellant's Appendix, p. 143). The next

bargaining session took place on May 5, 1995. Seventeen days

later, in a letter dated May 22, the Guild notified the Publisher

of its grievance that the Publisher was violating Article 15 of

the Agreement "by its refusal to bargain a successor Agreement,

by its failure to honor all terms and conditions of the current

Agreement during the course of negotiations, and by its related

conduct . . . ." (Appellant's Appendix, p. 202). Subsequent

bargaining sessions occurred on May 25, June 7, and June 13,

1995.

Soon thereafter, on June 21, the Guild filed a Demand

for Arbitration with the American Arbitration Association,

demanding that the Publisher arbitrate the Guild's grievance and

that the Publisher be ordered to "bargain a 'new Agreement'

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within the meaning of Article 15.2, restore all status quo ante

conditions pending such negotiations and make all affected

employees whole." (Appellant's Appendix, p. 234). Two days

later, on June 23, 1995, the Guild launched a double-barrelled

attack. First, the Guild filed a Complaint pursuant to Section

301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C.

185, as amended,3 in the U.S. District Court of the District of

Massachusetts, seeking injunctive relief in the form of an order

compelling the Publisher to submit grievances arising under the

Agreement to arbitration as well as a permanent injunction

against layoffs of Guild employees in violation of Article 4.5 of

the Agreement.4 Second, it filed an unfair labor practice

charge with the National Labor Relations Board (the "NLRB"),

pursuant to Section 8 of the National Labor Relations Act

("NLRA"), 29 U.S.C. 158, as amended, asserting, inter alia,

that the Publisher breached its obligations "to bargain

collectively in good faith . . . by refusing to bargain a

successor agreement . . . and by insisting instead on bargaining

only a 'merger/consolidation' agreement." (Appellant's Appendix,

3 Section 301(a) of the Labor Management Relations Act, 29
U.S.C. 185(a), provides: "Suits for violation of contracts
between an employer and a labor organization representing
employees in an industry affecting commerce as defined in this
chapter, or between any such labor organizations, may be brought
in any district court of the United States having jurisdiction of
the parties, without respect to the amount in controversy or
without regard to the citizenship of the parties."

4 Article 4.5 provides that "[t]here shall be no dismissal of
employees in the Guild jurisdiction for economy or as a result of
new or modified processes or equipment."

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p. 247). The Guild requested essentially the same relief as in

its Complaint, including a request that the NLRB pursue an

injunction against layoffs. (Appellant's Appendix, pp. 301-03).

After a hearing, the district court denied the Guild's

motion for injunctive relief on July 24, 1995. The district

court ruled that the grievance regarding the scope of

negotiations was expressly excepted from the Agreement's

arbitration provision, Article 12, which the Guild sought to

enforce. The district court, finding that no employee layoffs

had occurred during the negotiations, held that should any

layoffs occur during negotiations it would entertain a renewed

petition to enjoin them. The district court also noted that

"[i]f any layoffs should occur after negotiations have been

concluded, any unfair labor practice would lie within the

jurisdiction of the [NLRB], before which body a case involving

the same issues is presently pending."5

On July 28, 1995, the Guild filed this interlocutory

appeal. A week later, on August 2, the Publisher notified the

Guild that negotiations were at an impasse and that it would

implement its final proposals unless the Guild was prepared to

meet again or respond with counterproposals before noon on August

7. Having had no response, the Publisher notified the Guild on

5 In a letter dated August 1, 1995, the American Arbitration
Association notified the parties that "[g]iven the courts
position regarding the arbitrability of the matter as stated in
their opinion dated July 25, 1995, the Association will not
proceed with administration of this matter without the consent of
the parties or a court order." (Appellant's Appendix, p. 293).

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August 7 that negotiations for a merger/consolidation agreement

were concluded and that layoffs would be effective August 21. On

August 9, 1995, the Guild filed an amended unfair labor practice

charge with the NLRB, challenging, among other things, the

Publisher's unilateral declaration of impasse, conclusion of the

negotiations and implementation of the layoffs. The Guild then

filed an emergency motion with the district court on August 14,

1995, seeking an injunction prohibiting any layoffs pending

resolution of this appeal. The emergency motion was denied on

August 16, 1995. Two days later, the Guild filed two motions

with this court seeking an injunction pending resolution of the

appeal and for an expedited appeal. This court denied the

former6 and granted the latter.

Before us, then, is the Guild's appeal of the district

court's July 24, 1995, order. The Guild argues that the district

court erred by not applying the mandatory presumption in favor of

arbitration and by failing to compel the Publisher to proceed to

arbitration. It requests that the district court's order be

reversed. The Guild also argues that the district court abused

its discretion by refusing to enjoin the layoff of Guild members

and requests that the status quo ante be restored. We have

6 The record shows that of the seventy-five (75) Guild
employees, thirty-seven (37) have been fully integrated into the
new consolidated The Salem Evening News. (Appellant's Appendix,

pp. 273 & 296). The Publisher states, and the Guild does not
dispute, that of the thirty-eight (38) that were laid off
effective August 21, thirty-two (32) executed full releases of
all claims relating to their employment and termination in
consideration for severance packages.

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jurisdiction over this interlocutory appeal pursuant to 28 U.S.C.

1292(a).

DISCUSSION
DISCUSSION

I

As a threshold matter, we must first address the

Publisher's motion to dismiss this interlocutory appeal on the

grounds that it is moot. The Publisher argues that both aspects

of the Guild's appeal -- regarding compelling arbitration and

enjoining layoffs -- has been rendered moot due to developments

since the district court's decision; namely, the Publisher's

declaration of impasse, the conclusion of the parties'

negotiations, and the implementation of layoffs which the Guild

sought to enjoin.

We address the layoffs first. An appeal from the

denial of a motion for preliminary injunction is rendered moot

when the act sought to be enjoined has occurred. See, e.g., CMM

Cable Rep., Inc. v. Ocean Coast Properties, Inc., 48 F.3d 618,

621 (1st Cir. 1995) ("no justiciable controversy exists because

this appeal can no longer serve the intended harm preventing

function, or, put another way, this court, . . . has no effective

relief to offer"); McLane v. Mercedes-Benz of N. Am., Inc., 3

F.3d 522, 525 (1st Cir. 1993); Oakville Dev. Corp. v. FDIC, 986

F.2d 611, 613 (1st Cir. 1993) ("When . . . the act sought to be

enjoined actually transpires, the court may thereafter be unable

to fashion [ ] meaningful [relief]. In such straitened

circumstances, the appeal becomes moot."). Here, the actions

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which the Guild sought to enjoin (the layoffs of employees in the

Guild's bargaining unit) have already occurred.

The Guild disputes, however, that the layoffs issue is

moot, arguing that it falls within the exception to the mootness

doctrine; namely, that a case otherwise moot can nonetheless be

decided if (1) "'there [is] a reasonable expectation that the

same complaining party [will] be subject to the same action'; and

(2) 'the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration.'" Anderson

v. Cryovac, 805 F.2d 1, 4 (1st Cir. 1986) (quoting Weinstein v.

Bradford, 423 U.S. 147, 149 (1975)). Contrary to the Guild's

argument, the denial of the injunction against the layoffs does

not fall within this exception.

We need not determine whether the second prong of this

test is met because the first is not.7 While the Publisher may

determine that additional layoffs are necessary in its post-

consolidation operation, "there is no demonstrated probability,"

Weinstein, 423 U.S. at 149, that additional layoffs are likely or

that Guild members would be among those targeted. Based on the

record before us, implementation of the layoffs due to the

consolidation is a one-time occurrence. See, e.g., Railway Labor

Exec. Assoc. v. Chesapeake W. Ry., 915 F.2d 116, 118-19 (4th Cir.

7 As to the second prong, we note that because the layoffs
challenged by the Guild remain in effect and are the subject of
the Guild's unfair labor practice charge pending before the NLRB,
the Guild will have an opportunity to fully be heard regarding
the propriety of those layoffs despite the dismissal of this
aspect of the appeal as moot.

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1990) (holding that union's claim for injunctive relief from

transfers of railroad lines was mooted by the completion of the

transfers), cert. denied, 499 U.S. 921 (1991); Seafarers Int'l

Union of N. Am. v. National Marine Servs., Inc., 820 F.2d 148,

151 (5th Cir. 1987) (holding that sale of virtually whole tugboat

fleet and accompanying layoffs is a one-time occurrence).

Because there is no basis in the record to suggest that

additional layoffs of Guild members are likely to recur, we are

unpersuaded by the Guild's claim that "Guild members in the

merged operation continue to be at risk of layoff" (Appellant's

Memorandum in Opposition to Appellees' Motion to Dismiss Appeal,

p. 18). See Berry v. School Dist. of Benton Harbor, 801 F.2d

872, 874 (6th Cir. 1986) ("The mere possibility that a situation

will arise . . . is insufficient to justify orders which are

designed, in effect, to protect against conceivable

eventualities."); Williams v. Alioto, 549 F.2d 136, 143 (9th Cir.

1977) (stating that a mere speculative possibility of repetition

of the challenged conduct cannot avoid application of the

mootness doctrine), cert. denied, 450 U.S. 1012 (1981).

Furthermore, while a return to the status quo ante is

theoretically possible, given that most of the laid-off Guild

employees have signed releases in exchange for severance

packages, a return to the status quo at this juncture would be,

for the most part, meaningless. As for those who have not signed

releases, relief is available to them through the NLRB, which has

before it the Guild's unfair labor practice charge.

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Thus, in sum, given that the action which the Guild

sought to enjoin has already occurred, and that there is no

reasonable expectation that Guild employees will be subject to

the same action again, we dismiss the Guild's appeal from the

denial of its motion for a preliminary injunction.8

This, however, does not dispose of the whole appeal as

moot. The Publisher also argues that the Guild's appeal

regarding the district court's denial of an arbitration order is

similarly moot due to the Publisher's declaration of impasse and

the conclusion of the parties' negotiations. As there is no

dispute that the terms and conditions of the Agreement expired

upon the parties' reaching impasse or a new agreement, the

Publisher contends that the Guild can no longer obtain the relief

sought in its motion -- i.e., to compel the Publisher "to honor

the terms of the collective bargaining agreement until those

negotiations are completed." (Appellant's Appendix, p. 38

(emphasis added)). In response, the Guild argues convincingly

that, if it prevails in its contention that the Publisher failed

to enter into the contractually required negotiations, then the

Publisher's unilateral declaration of impasse is without meaning.

Because the Guild makes a colorable argument that it was and is

entitled to seek some relief through arbitration, we do not

believe that its arbitration request is mooted by the Publisher's

8 Because we have dismissed this aspect of the appeal as moot,
we do not need to address the Publisher's claim that the Guild
withdrew its request for a preliminary injunction against the
layoffs nor resolve whether or not the denial of the injunction
against the layoffs is properly before us.

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unilateral declaration of impasse. Seafarers, 820 F.2d at 152.

Thus, we will exercise our jurisdiction to review the district

court's order insofar as it deals with the Guild's motion to

compel arbitration.

II

Having addressed the motion to dismiss, we turn now to

the Guild's appeal regarding the denial of its request for an

order compelling arbitration. We scrutinize a district court's

decision to grant or withhold an equitable remedy, such as a

preliminary injunction, under a relatively deferential glass.

Absent mistake of law or abuse of discretion, we will not

interfere. See, e.g., Texaco Puerto Rico, Inc. v. Dep't of

Consumer Affairs, 60 F.3d 867, 875 (1st Cir. 1995); Indep. Oil

and Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co.,

864 F.2d 927, 929 (1st Cir. 1988). In order to obtain an

injunction, the Guild must demonstrate first that its grievance

is arbitrable; second, that an injunction is necessary to

preserve the arbitration; and, third, that irreparable harm and

imbalanced hardships would result without the injunction.

International Bhd. of Teamsters, Local Union No. 251 v. Almac's,

Inc., 894 F.2d 464, 465 (1st Cir. 1990).

Our task, then, is to decide whether the district court

abused its discretion when it denied the Guild's request that it

compel the Publisher to submit the Guild's grievance to

arbitration. In making this determination, the Supreme Court has

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established four principles to guide courts in determining

whether a labor dispute is arbitrable:9

Under the first principle, the parties
must have contracted to submit the
grievance to arbitration. The second
principle requires that the court
determine whether the contract provides
for arbitration of the particular
grievance in question. The third
principle demands that the court not
decide the merits of the grievance while
determining the arbitrability of the
dispute. Finally, if the contract
contains an arbitration clause, a
presumption of arbitrability arises.

Cumberland Typographical Union 244 v. The Times, 943 F.2d 401,

404 (4th Cir. 1991). A party's agreement to arbitrate is a

matter of contract construction and whether a dispute is

arbitrable under a collective bargaining agreement is a question

of law for the court, AT & T Techs., 475 U.S. at 649, and the

court should not decline to order arbitration "unless it may be

said with positive assurance that the arbitration clause is not

susceptible of an interpretation that covers the asserted

dispute." Warrior & Gulf, 363 U.S. at 582-583, quoted in AT & T

Techs. , 465 U.S. at 650. Guided by these principles, then, in

determining whether the district court erred when it did not

9 The four principles derive from the Steelworkers Trilogy, the
collective name given to three Supreme Court cases decided in
1960 -- Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960);

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574

(1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.

593 (1960) -- which are still considered the foundation of any
decision involving arbitration imposed by a collective bargaining
agreement. See AT & T Techs., Inc. v. Communication Workers of

America, 475 U.S. 643, 648-51 (1986) (discussing the Steelworkers

Trilogy); Montgomery Mailers' Union No. 127 v. The Advertiser

Co., 826 F.2d 709, 712-13 (11th Cir. 1987) (same).

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compel arbitration under the arbitration provisions in the

parties' collective bargaining agreement, "we must confine our

inquiry to 'ascertaining whether the party seeking arbitration is

making a claim which on its face is governed by the contract.'"

Montgomery Mailers', 827 F.2d at 712 (quoting American Mfg. Co.,

363 U.S. at 568).

Before turning to the Guild's grievances to determine

whether they are arbitrable, we must dispose of a threshold

issue: whether or not the Publisher is bound by the collective

bargaining agreement as a successor employer. Relying on NLRB v.

Fin. Inst. Employees, 475 U.S. 192, 202 (1986), and Holly Farms

Corp. v. NLRB, 48 F.3d 1360, 1365 (4th Cir. 1995), the Publisher

argues that as a matter of federal labor law it is not bound by

the collective bargaining agreement because there is no

"substantial continuity" between its ownership and operation of

The Salem Evening News and those of the prior owner. The Guild

disagrees, arguing that as a matter of federal labor law under

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 551 (1964),

the Publisher is bound by the collective bargaining agreement.

While the district court did not explicitly decide this issue, we

need not resolve the merits of the parties' arguments because it

has no effect on the outcome of this appeal. Even assuming that

the Publisher was bound, we find that as a matter of law the

Guild's grievance is not arbitrable and that, therefore, the

district court properly denied the Guild's request for the

injunction.

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We turn, then, to the arbitrability of the Guild's

grievance and to our reasons for not finding it arbitrable. The

Guild's grievance is as follows:

The Publisher has violated and continues
to violate the Agreement by its refusal
to bargain a successor Agreement, by its
failure to honor all terms and conditions
of the current Agreement during the
course of negotiations, and by its
related conduct, all in violation of Art.
15 and related provisions of the
collective bargaining agreement.

(Appellant's Appendix, pp. 202 & 234). Article 15.2 of the

Agreement provides, in relevant part, that "the Publisher or the

Guild may initiate negotiations for a new Agreement to take

effect April 1, 1995" and that "[t]he terms and conditions of

this Agreement shall remain in effect during such negotiations."

(Appellant's Appendix, p. 202). In its Demand for Arbitration,

the relief the Guild requests is to "[o]rder the

Employer/Publisher to bargain a "new agreement" within the

meaning of Article 15.2, restore all status quo ante conditions

pending such bargaining and make all affected employees whole."

(Appellant's Appendix, p. 234). The Publisher argues, however,

that what the Guild seeks to arbitrate is explicitly beyond the

scope of the arbitration provisions in the Agreement, upon which

the Guild's motion to compel arbitration relies. Those

provisions provide, in relevant part, as follows:

ARTICLE 12. Grievance Committee

12.1 The Guild shall designate a
committee . . . to take up with the
Publisher or its authorized agent any
matter arising from the application of

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this Agreement or affecting the relations
of the employees and the Publisher.

12.2 Any such matter, except renewal of

this contract, not satisfactorily settled

within a reasonable period of its first
consideration may be submitted to final
and binding arbitration by either party
. . . .

(Appellant's Appendix, p. 61). The Publisher argues that the

Guild's request is directly related to contract renewal and, when

unveiled, is essentially a request for "interest

arbitration."10 The district court did not err in denying the

Guild's request, the Publisher concludes, because it is

explicitly prohibited by the terms of the Agreement.

While the Guild concedes that "interest arbitration" is

prohibited by Article 12.2's contract renewal exclusion, it

nonetheless insists that it is not seeking to compel the

10 Two categories of labor arbitration have been distinguished:
(i) "grievance arbitration" which concerns disputes over the
terms of existing contracts and (ii) "interest" or "new contract"
arbitration which allows for arbitration of the terms of a new
agreement. See Montgomery Mailers, 827 F.2d at 716 n.7; Local

Div. 589, Amalg. Transit Union v. Massachusetts, et al., 666 F.2d

618, 620 (1st Cir. 1981) ("Unlike 'grievance arbitration,' which
involves the interpretation and application of existing
contractual provisions, 'interest arbitration' involves the
creation of new substantive contractual terms, which will govern
the parties' future relations."). See also Silverman v. Major

League Baseball Player Rels. Comm., Inc., 67 F.3d 1054, 1062 (2d

Cir. 1995) ("'Interest arbitration' is method by which employer
and union reach new agreements by sending disputed issues to an
arbitrator rather than settling them through collective
bargaining and economic force."); Coca-Cola Bottling Co. v. Soft

Drink and Brewery Workers Union, Local 812, 39 F.3d 408, 410 (2d

Cir. 1994) (noting that in NLRB v. Sheet Metal Workers Local 38,

575 F.2d 394, 398-99 (2d Cir. 1978) it reasoned that an "interest
arbitration provision" would be void as contrary to public
policy to the extent that it applied to nonmandatory bargaining
subjects because a contrary ruling would impair the parties'
freedom to exclude nonmandatory subjects from bargaining).

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Publisher to engage in interest arbitration; but rather, that it

"is seeking to have an arbitrator determine whether the Publisher

has unduly limited the scope of the negotiations for a successor

agreement, in violation of Article 15.2 of the contract."

(Appellant's Brief, p. 22). The Guild explains that the

arbitrator would not be dictating the terms of the successor

agreement; instead, it would be determining "whether Article 15.2

imposes an obligation on the Publisher to negotiate in good faith

on a broader range of topics." (Appellant's Brief, p. 26). The

Guild contends that the district court's critical error was its

failure to distinguish between the obligation to bargain in good

faith and the obligation to agree to specific terms. The Guild

claims that the district court, while properly recognizing that

the Guild only sought to have an arbitrator require the Publisher

to enter into bargaining for a new agreement, erroneously

concluded that "[s]uch a request is beyond the scope of the

arbitration clause in the old agreement which specifically

excludes contract renewal as a proper issue for arbitration." In

turn, the Publisher contends that the Guild's "distinction" is

but a "semantic dance" when the case is put in its full context.

The Publisher contends that for an arbitrator to rule that the

Publisher must engage in negotiations that are broader in scope -

- i.e., renewal -- effectively amounts to the arbitrator deciding

the "renewal of the contract" which is expressly excluded under

Article 12. Because the term or length of a collective

bargaining agreement is one of the more substantive provisions,

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the Publisher claims this is nothing less than a form of interest

arbitration.

We agree with the Publisher and, thus, find neither

mistake of law nor abuse of discretion in the district court's

conclusion. Not only is the plain language of Article 12 clear

and unambiguous in stating that contract renewal is not an

arbitral matter, we are also unpersuaded by the Guild's claim

that it asks not for "interest arbitration" but rather for an

arbitrator to merely decide its rights under the Agreement.

Without deciding whether a meaningful distinction can ever be

made between the terms of a new agreement and the scope of the

negotiations thereto, or whether this distinction is but a

"semantic dance" performed by the Guild,11 we find that here

there is none. In this case, as a practical matter, it is not

possible for an arbitrator to issue an award defining the scope

of the negotiations for a new contract without substantively

impacting the new contract and its terms and conditions. Because

the scope of the negotiations is part of the negotiating process

towards a new agreement, the arbitrator would necessarily be

making a determination involving "renewal of this contract" were

it to define the scope. Thus, although interest arbitration

goes only to the terms of the agreement rather than to the

negotiations itself, the district court neither erred nor abused

its discretion when it concluded that the Guild's grievance

11 We also note that the Guild's argument may not necessarily be
a "semantic dance" given that the parties could have negotiated
the impasse and be where they are today.

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amounted to "interest arbitration" and was, therefore, a non-

arbitral grievance under the plain language of Article 12's

exclusion.

In this regard, we find the Guild's reliance on Inner

City Broadcasting Corp. v. AFTRA, 586 F. Supp. 556 (S.D.N.Y.

1984), and Cumberland Typographical Union 244 v. The Times, 943

F.2d 401, 406 (4th Cir. 1991), to be misguided. First, in Inner

City, the court found that where "AFTRA has claimed that Inner

[City] violated a specific provision of the [agreements]

requiring it to negotiate a new agreement in good faith . . . .

[t]here is . . . a dispute between the parties as to 'the

interpretation or breach' of the [agreements]." Id. at 561.

This, the court held, "must be resolved by the method agreed to

by the parties, namely arbitration." Id. Central to the court's

holding was its finding that AFTRA's grievance fell squarely

within the arbitration provision at issue which expressly

provided that "any controversy or dispute arising with respect to

this contract or the interpretation or breach thereof . . . shall

be settled by arbitration." Id. In contrast, the Guild's

grievance and the relief it seeks -- "to bargain a 'new

agreement' within the meaning of Article 15.2" -- goes directly

to renewal of the collective bargaining agreement and thus falls

outside the scope of the arbitration provision which expressly

excludes contract renewal as a proper issue for arbitration.

Second, in Cumberland, the court upheld the union's

right to arbitrate a dispute which arose under the parties'

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expired collective bargaining agreement concerning that

agreement's lifetime job guaranty provision. The dispute was

about whether the lifetime job guarantee provision at issue

prevented dramatic wage decreases during the pendency of

negotiations for a new agreement. Central to the court's

decision was the fact that "the 'new contract' provision has a

direct and substantial effect upon a vested arbitrable right,"

Cumberland, 943 F.2d at 407, and that the union "[was] not

seeking a 'future collective bargaining agreement' through

arbitration . . . , but enforcement of the existing continuing

job guarantee agreement." Id. at 406. In contrast, here, the

Guild's grievance about the Publisher's alleged closed mind

regarding negotiating a successor agreement does not involve a

vested arbitrable right as contract renewal is explicitly

excluded under the plain language of Article 12. In other words,

when unveiled, the Guild's grievance is essentially concerned

with the acquisition of future rights -- through a renewed

agreement -- and is, thus, but a form of "interest arbitration."

Accordingly, were we to grant the Guild's request, we would be

compelling matters of contract renewal to arbitration -- in

blatant contradiction of the Agreement's plain language.

Indeed, because renewal of the agreement is not a

permissible topic for arbitration, we fail to see what there is

for the arbitrator to determine other than, as the Guild

suggests, whether the Publisher came to the negotiating table in

good faith or with a closed mind. While this question, which

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stems from the Publisher's refusal to negotiate renewal of the

agreement after negotiations were timely initiated by the Guild,

may involve a question of unfair labor practice, it does not

involve a vested arbitral right under the plain language of

Article 12. Cf. Montgomery Mailers', 827 F.2d at 715-16

(concluding that the formation of any new agreement is beyond the

scope of the arbitration clause where the contract expressly

provides that any new agreement is to be arrived at through

negotiation).

To recapitulate, the Guild's grievance is not

arbitrable both by the plain language of the Agreement explicitly

excluding "renewal of this contract" and by the Guild's very own

concession that Article 12(2) was intended to exclude interest

arbitration. Thus, because we find "with positive assurance that

the arbitration clause is not susceptible of an interpretation

that covers the asserted dispute," Warrior & Gulf, 363 U.S. at

582-83, and because there are no doubts to be resolved in favor

of arbitration,12 we find no error or abuse of discretion in

the district court's denial of the Guild's request for a

permanent injunction compelling arbitration regarding

negotiations for a successor agreement, and affirm its order in

this respect.

Finally, we address the Guild's claim that "certain

aspects of its Article 15 grievance do not depend on a predicate

12 Because we find the Guild's grievance not arbitrable, we need
not address the remaining two prongs that it had to demonstrate
in order to obtain an injunction.

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finding that the Publisher has refused to negotiate a successor

agreement, and therefore cannot even arguably implicate the

"contract renewal" exception to the arbitration clause . . . .

[and that,] [t]herefore, the Publisher must at least be compelled

to arbitrate those aspects of the arbitration demand."

(Appellant's Brief, p. 34 n.12). After careful review of the

record, however, we find that these issues which the Guild claims

were part of its grievance were never squarely presented to the

district court.13 Because they were not squarely presented

below, the Guild may not raise them for the first time in their

interlocutory appeal. See, e.g., Teamsters, Chauffeurs Local No.

59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)

("If any principle is settled in this circuit, it is that, absent

the most extraordinary circumstances, legal theories not raised

13 While the Guild made reference to "grievances" below, it only
identified two additional grievances -- neither of which are
arbitrable at this point -- despite repeated requests by the
district court during the hearing on its motion for injunctive
relief to specify exactly what it wanted to have referred to an
arbitrator. The first, regarding whether the terms and
conditions of the Agreement remain in effect, is a judicial
function which the district court correctly noted was to be
resolved by the court prior to compelling arbitration. See John

Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47 (1964)

(noting that threshold question of who should decide whether the
provisions survived the merger so as to be binding was a question
for the courts); Int'l Bhd. of Electrical Workers, Local 1228 v.

Freedom WLNE-TV, Inc., 760 F.2d 8, 9 (1st Cir. 1985) ("Generally

it is up to the court to determine, in the first instance,
whether the parties have entered into a contract . . . and
whether that contract is still binding upon them."). The second,
regarding whether those terms and conditions, particularly
Article 4.5, preclude layoffs of Guild members prior to lawful
impasse or the conclusion of negotiations, was rendered premature
below (by the Guild's own admission) given the Publisher's
representation that no layoffs would occur prior to reaching
lawful impasse or while negotiations continued.

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squarely in the lower court cannot be broached for the first time

on appeal."); McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13,

22 (1st Cir. 1991) ("If claims are merely insinuated rather than

actually articulated in the trial court, we will ordinarily

refuse to deem them preserved for appellate review."), cert.

denied, 504 U.S. 910 (1992); Rivera-G mez v. de Castro, 843 F.2d

631, 635 (1st Cir. 1988) ("A litigant has an obligation 'to spell

out its arguments squarely and distinctly' . . . or else forever

hold its peace.").

III

The Guild argues that the district court erred when it

concluded that "[i]f any layoffs should occur after negotiations

have been concluded, any unfair labor practice would lie within

the jurisdiction of the [NLRB], before which body a case

involving the same issues is presently pending." The Guild

claims that the district court erroneously agreed with the

Publisher's argument below that the NLRB has primary jurisdiction

over the issue of whether the Publisher had fulfilled its

contractually imposed bargaining obligations, including whether

the parties were at impasse in the negotiations. The crux of the

Guild's argument is that, because its claims arise solely under

the Agreement and are on appeal solely pursuant to section 301 of

the LMRA, this case lies within the concurrent jurisdiction

shared by the federal courts and the NLRB.

We review de novo the district court's implicit

jurisdictional finding that the Guild's claims fall within the

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primary jurisdiction of the NLRB. See Int'l Bhd. of Teamsters,

Chauffeurs v. American Delivery Serv., Co., 50 F.3d 770, 770 (9th

Cir. 1995). It is well-settled that the NLRB enjoys primary

jurisdiction over disputes involving unfair labor practices or

representational issues. See Tamburello v. Comm-Tract Corp., 67

F.3d 973, 976 (1st Cir. 1995) (discussing how the "NLRA vests the

NLRB with primary jurisdiction over unfair labor practices"). It

is also a "'well entrenched general rule' . . . that 'the fact

that a particular activity may constitute an unfair labor

practice under section 8 of the LMRA, 29 U.S.C. 158, does not

necessarily preclude jurisdiction under section 301 of the [LMRA]

if that activity also constitutes a breach of the collective

bargaining agreement.'" Local Union No. 884 v.

Bridgestone/Firestone, Inc., 58 F.3d 1247, 1256 (8th Cir. 1995)

(quoting Local Union 204 of the Int'l Bhd. of Elec. Workers v.

Iowa Elec. Light and Power Co., 668 F.2d 413, 416 (8th Cir.

1982)); see William E. Arnold Co. v. Carpenters Dist. Council,

417 U.S. 12, 15-16 (1974)).

While we agree with the Guild that where a party's

conduct gives rise to both a charge of an unfair labor practice

and a claimed breach of a collective bargaining agreement the

NLRB and the district court share "concurrent jurisdiction,"

Local Union No. 884, 58 F.3d at 1257, we nonetheless find no

error in the district court's order. The reason, in a nutshell,

is because we conclude that the Guild's complaint falls more

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appropriately within the NLRB's primary jurisdiction than within

the concurrent jurisdiction shared with the federal courts.

First, we do not find that it involves a bona fide

contractual dispute arising out of a breach of the Agreement.

While we have not found case law explicitly holding so, the

doctrine of concurrent jurisdiction applies only where the

conduct involves a bona fide claimed breach of the collective

bargaining agreement. Were this not the case, the primary

jurisdiction of the NLRB could be circumvented simply by casting

statutory claims as contractual or constitutional violations.

Cf. Communication Workers v. Beck, 487 U.S. 735, 742-44 (1987)

("Employees, of course, may not circumvent the primary

jurisdiction of the NLRB simply by casting statutory claims as

violations of the union's duty of fair representation.");

Amalgamated Clothing & Textile Workers Union v. Facetglas, Inc.,

845 F.2d 1250, 1252 (4th Cir. 1988) ("There is a strong policy in

favor of using the procedures vested in the [NLRB] for

representational determinations . . . and '[t]o fail to apply

this policy to section 301 actions would allow an 'end run'

around provisions of the NLRA under the guise of contract

interpretation.'" (quoting Iowa Elec., 668 F.2d at 418-19)).

We are unpersuaded by the Guild's claim that the

Publisher's refusal to negotiate a successor agreement and its

insistence on only negotiating a "merger/consolidation" agreement

constitutes a breach of Article 15.2. While the Guild may not be

satisfied with the "scope" or progress of the negotiations it

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initiated under Article 15.2 or with the Publisher's good faith,

the Publisher's conduct does not give rise to a claimed breach of

the collective bargaining agreement, because Article 15.2 neither

mandates renewal nor delineates the scope of the negotiations;

rather, it merely provides that either the Publisher or the Guild

may timely initiate negotiations for renewal. Thus, because the

Publisher's conduct does not give rise to a colorable breach of

the Agreement, it does not fall within the "concurrent

jurisdiction" shared by the federal courts and the NLRB. See

Steinmetz Elec. Contrs. Assoc. v. Local Union No. 58, Int'l Bhd.

of Elec. Workers, 517 F. Supp. 428, 436 (E.D. Mich. 1981)

("Though it cannot be disputed that the courts and the [NLRB]

[share] concurrent jurisdiction . . . when a matter in dispute is

not an issue under a contract, then the courts are without

jurisdiction."). To hold otherwise would permit the Guild to

style what is in essence an unfair labor practice claim as an

section 301 claim in order to get contract renewal issues,

including the issue of impasse, before an arbitrator. Cf. Local

Union No. 884, 58 F.3d at 1257 (rejecting characterization that

union's claim was "really a subterfuge . . . to get the issue of

'bargaining impasse' before an arbitrator" where union's claim,

regarding whether disputed rights survived expiration of

collective bargaining agreement, was in fact subject to

contract's arbitration provisions).14

14 Because we conclude that concurrent jurisdiction does not
exist in this case, we do not need to address the Publisher's
contention, and the Guild's rebuttal, that the Guild's claims are

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Second, we are swayed by the fact that the Guild's

section 301 claim is premised on the same set of facts which

generated its unfair labor practice charge before the NLRB,

requires resolution of the same issues, and requests the same

relief. While the pendency of similar issues before the NLRB and

the court, does not require dismissal or stay of a section 301

contract action, see Local Union No. 884, 58 F.3d at 1257

(citations omitted), courts may decline to act where the issues

presented fall within the scope of the NLRB's primary

jurisdiction, as primary jurisdiction stems from the judiciary's

deference to an administrative agency's expertise, see, e.g.,

United States v. Western Pac. R.R. Co., 352 U.S. 59, 63-64

(1956); United Food and Commercial Workers, Local 400 v. Marval

Poultry, 708 F. Supp. 761, 764 (W.D. Va. 1989). Indeed,

"[c]onsideration of the history and purposes of the primary

jurisdiction doctrine convinces us that district courts should

not serve as the initial arbiters of unfair labor practice

charges in section 301 actions." Waggoner v. R. McGray, Inc.,

607 F.2d 1229, 1235 (9th Cir.) (reviewing doctrine and concluding

that it mandates the holding that district courts may not decide,

independent of the NLRB, the merits of an unfair labor practice

"primarily representational" and, thus, within the primary
jurisdiction of the NLRB. See Local Union 204, 668 F.2d at 419

("We believe the appropriate line between those cases where the
district court has jurisdiction under section 301 and those in
which it does not is to be determined by examining the major
issues to be decided as to whether they can be characterized as
primarily representational or contractual.").

-27-

defense to enforcement of a collective bargaining agreement in a

section 301 action), reh'g denied, (1979).

Here, the gravamen of the Guild's complaint is that the

employer bargained in bad faith, unlawfully reached impasse, and

unlawfully undermined the Guild's representational status. These

issues fall squarely within the NLRB's primary jurisdiction as

they are essentially extra-contractual claims regarding the

Publisher's duty to bargain in good faith, its conduct during

negotiations and the resulting damage to the Guild's

representational status. 29 U.S.C. 158. Accordingly, we find

no error in the district court's conclusion that any unfair labor

practice charge would fall within the NLRB's jurisdiction once

negotiations concluded. Finally, we merely add that, even if the

Guild's claims constituted a legitimate section 301 claim, we

would nonetheless find no abuse of discretion in the district

court's decision to defer to the NLRB's jurisdiction. Cf. Marval

Poultry Co., 708 F. Supp. at 764 (deferring to the NLRB while

recognizing that the district court's jurisdiction of the union's

section 302 claim was "not preempted per se").

IV

For the foregoing reasons, the judgment of the district

court is dismissed in part as moot15 and affirmed in part.

15 As a general rule, when a case becomes moot on appeal -- or
an aspect thereof -- we vacate the district court's decision and
remand with a direction to dismiss. See, e.g., McLane v.

Mercedes-Benz of North America, Inc., 3 F.3d 522, 524 n.6 (1st

Cir. 1993) (citing United States v. Munsingwear, Inc., 340 U.S.

36, 39 (1950)). In the case of an interlocutory appeal, however,
the usual practice is simply to dismiss the appeal as moot rather

-28-

than vacate the order. See McLane, 3 F.3d at 524 n.6 (citing

cases).

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