The Newspaper Guild v. Ottaway Newspapers , 79 F.3d 1273 ( 1996 )

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
-25-
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
-26-
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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