
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1471                 SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC,                                 Plaintiff, Appellee,                                          v.                         LOCAL 1199 N.E., SEIU, AFL-CIO, CLC,                                Defendant, Appellant,                                 ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Larry Engelstein with whom Jonathan P.  Hiatt, Warren H. Pyle, and            ________________           __________________  ______________        Angoff, Goldman, Manning,  Pyle, Wanger  & Hiatt, were  on briefs  for        ________________________________________________        appellee.            Robert M. Gault with whom Richard  Mirabito, Susan M. Basham, John            _______________           _________________  _______________  ____        M. Creane, Michael E. Passero, Mintz, Levin, Cohn, Ferris, Glovsky and        _________  __________________  _______________________________________        Popeo,  P.C.,  and Law  Firm of  John M.  Creane,  were on  briefs for        ____________       _____________________________        appellant.                                           ____________________                                  November 21, 1995                                 ____________________                      LYNCH, Circuit Judge.  The attempted dissolution of                      LYNCH, Circuit Judge.                             _____________            timeless  vows  of fidelity  between two  labor organizations            gave  rise   to  this  litigation.     An  extremely  unhappy            relationship between a local  union and its International led            the Local to stop paying its monthly per capita taxes  to the            International.  That in turn led the International to sue the            Local  in federal  court  in Massachusetts  to collect  those            taxes.  When  the Local replied that it  had no obligation to            pay the  taxes, the  International claimed arbitration.   The            court ordered arbitration; the arbitrator ordered the payment            of the  taxes and  late fees.    The Local  appeals from  the            district court's decision confirming the  arbitrator's award.            We affirm in part and vacate and remand in part.                      The   plaintiff   International   is  the   Service            Employees International  Union, AFL-CIO, CLC ("SEIU"),  a one            million member organization.  The Local is District  1199, an            18,000  member union  of health  care employees.    The Local            asserts that following a New York Times article in the Spring                                     ______________            of 1991   questioning the propriety of the financial dealings            of  certain International  officials,  it led  a movement  to            promote reform  within the International.   These efforts, it            says,  were  met  with retribution  from  the  International,            which, in  turn,  caused  the Local  to withhold taxes.   The            International  denies  any  wrongdoing  or   retribution  and            attributes more common, self-interested motives to the Local.                                       History                                       _______                                         -3-                                          3                      The International sued  the Local in federal  court            in Massachusetts on September 17, 1993, seeking a preliminary            injunction requiring the Local to  pay per capita taxes which            it  had  withheld since  October 1992.    Six days  later, in            federal court in Connecticut,  certain individual members  of            the Local  sued both the  Local itself and  the International            for  rescission   of  the contract  between  the two  on  the            grounds  that the  contract  was entered  into without  fully            informing  the  members  or  receiving  their  authorization.            This, the  Connecticut suit claimed,  contravened the  bylaws            and  constitution governing the  Local as well  as the Labor-            Management Reporting  and Disclosure Act ("LMRDA"), 29 U.S.C.              401, et seq.1                   __ ____                      The  Massachusetts court denied  the Local's motion            to  transfer the action to  Connecticut.  It  also denied the            International's  motion for  a  preliminary  injunction,  but            granted the  International's  motion to  compel  arbitration.            The district  court denied both  the Local's motions  to stay            proceedings and to dismiss and the International's motions to            enjoin  the Local  from  proceeding with  its cross-claim  in            Connecticut and  for entry  of default.   The  district court            later  denied the  Local's motion  to reconsider,  vacate and                                            ____________________            1.        Motions in  the Connecticut case, O'Neil  et al. v.                                                        ______________            New England  Health Care Employees Union,  District 1199, and            _____________________________________________________________            SEIU, No.  3:93CV1918(JAC)  (D. Conn.), were under advisement            _____            at the time of oral argument in this case.                                         -4-                                          4            reassign  for  reargument the  motion to  compel arbitration.            The  Local, however,  went to  arbitration voluntarily.   The            parties  agreed upon  the  six questions  to  be put  to  the            arbitrator.2                       Before arbitration commenced, on January  19, 1994,            the  Executive  Board  of  the  Local  unanimously  voted  to            terminate its contract with the International.                                            ____________________            2.        The Local and the International stipulated that the            six questions to be addressed by the arbitrator were:            1. Does the failure of District 1199 NE to remit  to the SEIU            the monthly per capita tax, as set forth in Article 10 of the            Affiliation   Agreement,  constitute   a  violation   of  the            Affiliation Agreement, and if so, what shall be the remedy?            2.   Does the failure of District  1199 NE to pay to the SEIU            the late penalty fee as required under Art II, Sec.  3 of the            SEIU constitution  and bylaws  constitute a violation  of the            Affiliation Agreement, and if so, what shall be the remedy?            3.  Does  the failure of District 1199 NE to pay its full per            capita  tax obligations to  the SEIU before  paying any other            bills,  as required  under  Art  XII,  Sec.  4  of  the  SEIU            constitution  and  bylaws,  constitute  a  violation  of  the            Affiliation Agreement, and if so, what shall be the remedy?            4.   Does the failure  of District 1199  NE to furnish  to an            auditor  designated by the International President to examine            its books and  record all  of its  books, records,  accounts,            receipts,  vouchers, and  financial  data  as  requested,  as            required  under Art XII,  Sec. 6(a) of  the SEIU constitution            and  bylaws,  constitute  a   violation  of  the  Affiliation            Agreement, and if so, what shall be the remedy?            5.   Does the District have  the right to  terminate the 1992            Affiliation Agreement, and if so, under what circumstances?            6.  Does  the District's  purported termination  on or  about            January 19, 1994, violate the 1992 Affiliation Agreement, and            if so, what shall be the remedy?                                         -5-                                          5                      After seven days of hearings, the arbitrator issued            an initial  decision that:  (i)  the Local was  liable to the            International for per capita  taxes;  (ii) the Local  did not            have the  right to  terminate its contract  (the "Affiliation            Agreement")  with  the  International,  except   through  the            procedure set  forth within the  International's Constitution            and Bylaws,  and (iii)  the Local's  purported disaffiliation            vote of  January 19, 1994 violated  the Affiliation Agreement            and  was  rescinded.   The  Arbitrator  reserved decision  on            various  remedial  issues, including  payment  schedule, late            fees,  auditor's access to  data, and priority  of paying per            capita  obligations, in order to give the parties a chance to            reach a negotiated resolution.                      Negotiations on remedial matters  failed, according            to the Local,  because the  International preconditioned  any            compromise  on  the  Local  securing the  withdrawal  of  the            Connecticut lawsuit.  The Local argued to the arbitrator that            such preconditioning  was an unlawful burden on the "right to            sue"  guaranteed  to  union  members  by   the  LMRDA.    The            arbitrator, however, refused to  consider the issue, since it            related to a   separate lawsuit that was not  before him.  On            November  9,  1994 the  arbitrator awarded  the International            unpaid  taxes, late  fees, and  all other  ancillary relief.3                                            ____________________            3.        The  total  amount of  unpaid  dues  and late  fees            (calculated at  the rate  of 2% per  month, compounded),  was            approximately  $2,000,000  ($1,500,000  in  unpaid  dues  and                                         -6-                                          6            Post-arbitration,  the International  moved  to  confirm  the            arbitrator's  award, and the Local  moved to vacate  it.  The            district court granted the International's motion to confirm.                      The  Local  has appealed,  making  three arguments.            The Local  argues that the arbitrator  exceeded his authority            by rescinding  the vote of  the Local's  Executive Board  and            ordering payment of the  outstanding per capita taxes, saying            these  remedies  were  not  authorized   by  the  Affiliation            Agreement.   The  Local also  urges that confirmation  of the            arbitrator's award  violated public policy in  that the award            undermined both the free speech rights of union members to be            critical  of  the  International   and  to  institute   legal            proceedings against it.   The Local  finally argues that  the            district court  erred in granting the  International's motion            to compel arbitration and in denying both the  Local's motion            to  stay proceedings and its  motion to transfer  the case to            Connecticut.                        Confirmation of the Arbitrator's Award                        ______________________________________                      This   Court   reviews    the   district    court's            confirmation  of  the  arbitrator's   award  de  novo  as  to                                                         __  ____            questions of law and mixed questions of law and fact, and for            clear error  as to questions of  fact.  See First  Options of                                                    ___ _________________            Chicago,  Inc.  v. Kaplan,  115  S.  Ct. 1920,  1926  (1995).            ______________     ______            Federal  court review  of  arbitral decisions  on matters  of                                            ____________________            $500,000 in late fees).                                          -7-                                          7            contract    interpretation    is    extremely   narrow    and            extraordinarily deferential.  See Dorado Beach Hotel Corp. v.                                          ___ ________________________            Union de Trabajadores de la Industria Gastronomica Local 610,            ____________________________________________________________            959  F.2d 2, 3-4 (1st Cir. 1992); El Dorado Technical Servs.,                                              ___________________________            Inc. v. Union General de Trabajadores, 961 F.2d 317, 319 (1st            ____    _____________________________            Cir. 1992) ("[A] court should uphold an award that depends on            an  arbitrator's  interpretation of  a  collective bargaining            agreement  if it  can find,  within the  four corners  of the            agreement, any plausible basis for that interpretation.").                       The Local  argues that this case  should be treated            as a commercial contract dispute between two entities and not            as  a labor  dispute  under    301  of the  Labor  Management            Relations  Act, 29  U.S.C.    185.   This, the  Local posits,            would permit  less deference to  the arbitrator.   Indeed, it            appears  it would  not.    This  Court  in  Advest,  Inc.  v.                                                        _____________            McCarthy,  914  F.2d  6  (1st  Cir.  1990)  explained,  after            ________            reviewing different  articulations of the  standard of review            of an  arbitrator's award in both labor and commercial cases,            that the  different formulations were in essence "identical."            See id. at 8-9; see also Hill v. Norfolk W. Ry. Co., 814 F.2d            ___ ___         ___ ____ ____    __________________            1192,  1195 (7th  Cir. 1987).   Without  deciding the  larger            question, we decline  in this dispute  between two unions  to            vary from  the  deferential treatment  of arbitration  awards            established by the Supreme Court in labor disputes  under the            United   Steelworkers   trilogy  of   cases.     See   United            _____________________                            ___   ______                                         -8-                                          8            Steelworkers v. Enterprise Wheel  & Car Corp., 363  U.S. 593,            ____________    _____________________________            596-97 (1960); United Steelworkers  v. American Mfg. Co., 363                           ___________________     _________________            U.S. 564, 568  (1960); United Steelworkers v.  Warrior & Gulf                                   ___________________     ______________            Navigation Co., 363 U.S. 574, 582 (1960).             ______________                      The Local argues that  the arbitrator exceeded  his            authority  by  imposing remedies  he  was  not authorized  to            impose.  It concentrates its force on the arbitrator's ruling            that the disaffiliation vote  was contrary to the Affiliation            Agreement and his award rescinding the vote.  It also attacks            the order that it pay the due per capita taxes  and late fees            that had accrued.                         The   arbitrator    interpreted   the   Affiliation            Agreement to  disallow disaffiliation  except by  the methods            set forth  in the  International's Constitution  and Bylaws.4            Those  methods do not include  disaffiliation by a  vote of a            local  union's   executive  board.     The  only   method  of            disaffiliation  allowed  by the  International's Constitution            and   Bylaws  imposes  onerous  requirements.    The  article            entitled  "Dissolution"  states  that  no  local  union  "can            dissolve, secede  or disaffiliate  while there are  seven (7)            dissenting  members  .  .  . ."    Further,  the  Affiliation            Agreement is of indefinite duration.                                               ____________________            4.        In  the  Affiliation  Agreement  the  International            explicitly   waived,  for   the  Local,   a  number   of  the            requirements  of its  Constitution  and Bylaws,  but did  not            waive  the  requirements  of  Article  XXIV,  the dissolution            provision.                                          -9-                                          9                      The   Local  argues  that  the  arbitrator's  award            contradicts the autonomy it  had explicitly negotiated for in            the Affiliation Agreement.  Whether or not we might have read            the contract differently, or have sympathy for the plight  of            the Local that  now finds itself unable  to disaffiliate from            the    International  with whom  it  has,  at  best, a  badly            strained   relationship,  the  arbitrator's  reading  of  the            Affiliation Agreement is plausible  and we cannot disturb it.            In  the face  of evidence  that affiliation  negotiations had            been lengthy, with the Local negotiating a number of specific            protective provisions in  the Affiliation Agreement  (such as            bars  on  the   power  of  the  International   to  impose  a            trusteeship, a merger, or a forfeiture of assets in the event            of  a dissolution),  it  was plausible  to  conclude, as  the            arbitrator  did, that the Local bound itself to a contract of            unlimited duration that allowed only a tiny escape hatch.5                       The Local also erroneously argues that because this            case  involves a  contract dispute,  the arbitrator  was only            authorized to award  damages and nothing  else for breach  of            contract.   Specific performance is a recognized remedy for a                                            ____________________            5.        The   Local  also   points   to  cases   mentioning            "autonomy" as a factor in  determining a local union's  right            to   terminate  its  affiliation  agreement.    Those  cases,            however, turn, as does  this one, on the  terms of the  local            union's agreement  with the international.   See, e.g., Local                                                         ___  ____  _____            No. 1, Amalgamated Lithographers  v. Brown, 270 N.Y.S.2d 891,            ________________________________     _____            896  (N.Y. App.  Div.  1966), aff'd,  286 N.Y.S.2d  853 (N.Y.                                          _____            1967); Sanders v. De  Lucia, 266 F. Supp. 852,  856 (S.D.N.Y.                   _______    _________            1967), aff'd, 379 F.2d 550 (2d Cir. 1967).                     _____                                         -10-                                          10            breach of contract, and because that remedy was not expressly            precluded by the Affiliation  Agreement, it was plausible for            the arbitrator to  award it.  "[S]ubject to the  terms of the            empowering clause, arbitrators  possess latitude in  crafting            remedies  as wide  as  that which  they  possess in  deciding            cases." Advest,  914 F.2d at 10-11.                     ______                      The   Local  argues  that  the  arbitrator's  award            exceeded his authority in that requiring a payment of the per            capita  taxes  plus  a penalty  was  not  among  the specific            remedies  listed  in  the  International's  Constitution  and            Bylaws  for non-payment  of  dues.   The remedies  explicitly            listed are suspension  of the local union,  revocation of the            local  union's charter,  and appointment of  a trustee.   The            arbitrator,  however,  plausibly  rejected an  interpretation            that these were exclusive remedies.  The relevant  section of            the  International's Constitution and  Bylaws does  not limit            the   International's  remedies  to   the  three  enumerated.            Rather, the relevant clause  refers the matter of non-payment            of  dues to the International President for such action as he            shall  deem appropriate,  "including without  limitation" the                                                 ___________________            three actions specifically listed (emphasis added).                         Alleged Violations of Public Policy                         ___________________________________                      The  Local argues that  the arbitrator's award must            be set  aside in any event  because it is  contrary to public            policy  that is  explicit, well-defined  and dominant.   See,                                                                     ___                                         -11-                                          11            e.g., W.R. Grace & Co. v. Local Union 759, Int'l Union of the            ____  ________________    ___________________________________            United Rubber, Cork,  Linoleum & Plastic Workers of  Am., 461            ________________________________________________________            U.S. 757, 766 (1983).  That  policy, it says, is contained in            the   LMRDA,       101(a)(2),(4),  and  the   protections  it            guarantees  to union  members to  be able  to express  freely            their  views and  opinions, and  to institute  proceedings in            court or in front of an administrative agency.  W h e n     a            violation  of  well-defined  and  dominant public  policy  is            asserted, the  question is  ultimately one for  resolution by            the  courts,  and  a  court  is  required  to  make  its  own            independent evaluation.  See id.                                     ___ ___                      The  Local  makes   two  very  precise  arguments.6            First, it  says, the award condones violation  of free speech            rights  in ignoring  that the  International "repeatedly  and            systematically retaliated  against the District  for engaging            in union  democracy activities."   As  an example, the  Local            points  to the  fact that  the International  President, John            Sweeney, did  not include  the Local's representative  on his            slate of candidates  for election to  the executive board  of            the International (which would,  according to the Local, have                                            ____________________            6.        For the first time on appeal, the Local also argues            that  the arbitrator's reading of the Affiliation Agreement's            preconditions to disaffiliation  violates public policy.   It            is settled that "absent the most extraordinary circumstances,            legal theories not raised squarely in  the lower court cannot            be  broached  for  the  first  time  on  appeal."  Teamsters,                                                               __________            Chauffeurs, Warehousemen  and Helpers Union, Local  No. 59 v.            __________________________________________________________            Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).            _____________________                                         -12-                                          12            guaranteed the election of  its candidate).  The  Local cites            in  support of  its  argument cases  involving situations  in            which the union  officials whose rights under  the LMRDA were            endangered  had  won  elections  and were  being  removed  or                             ___            suspended during their terms.  See Maceira v. Pagan, 649 F.2d                      ______               ___ _______    _____            8, 10-11  (1st Cir. 1981);  Bradford v. Textile  Workers, 563                                        ________    ________________            F.2d 1138,  1139-40 (4th  Cir. 1977).   Although a  plausible            argument might be made for extending those cases beyond their            facts,  the  arbitrator found  as a  matter  of fact  that no            promise   to   slate   the   Local's   candidate   for    the            International's  board elections had  been made as  a part of            the  Affiliation Agreement, and that refusal to do so was not            in retaliation for the  Local's "union democracy" activities.            We  may  not  second  guess   the  factual  findings  of  the            arbitrator.  See Paperworkers Int'l Union v. Misco, Inc., 484                         ___ ________________________    ___________            U.S.  29 (1987).  In Misco, the Supreme Court counselled that                                 _____            it  is "the arbitrator's  view of the  facts . .  . that [the            parties have]  agreed to accept"  and that "[c]ourts  thus do            not  sit to  hear  claims  of  factual  . .  .  error  by  an            arbitrator as an appellate  court does in reviewing decisions            of lower courts."   Id. at 37-38.  The  factual predicate for                                ___            the  Local's argument  was  explicitly found  wanting by  the            arbitrator.   Absent  such a  factual predicate,  we may  not            reach the legal claims.                                         -13-                                          13                      The Local next  argues that the arbitrator's  award            violates LMRDA   101(a)(4), which provides as follows:                      Protection  of  right  to sue.--No  labor                      organization shall limit the right of any                      member  thereof to institute an action in                      any court, or in a  proceeding before any                      administrative  agency,  irrespective  of                      whether  or not the labor organization or                      its officers  are named as  defendants or                      respondents in such action or proceeding                       . . .            29 U.S.C.   411(a)(4).                      During the negotiations mandated by the arbitrator,            the  International,  according  to  the  Local,  refused   to            negotiate  over  a reduction  in  or  a reasonable  repayment            schedule for  the per capita  taxes or a  waiver of  the late            fees,  unless the  Local arranged for  the withdrawal  of the            O'Neil lawsuit  that its members had  brought in Connecticut.            ______            The  Local  argues that  the  International,  by conditioning            negotiations  on the  Local  securing the  withdrawal of  its            members' lawsuit,  violated the "right to  sue" guaranteed to            union members by LMRDA   101(a)(4).                      The  arbitrator refused  to consider  the  issue of            whether  the International had violated the "right to sue" of            the Local's members.  He said that the O'Neil lawsuit was not                                                   ______            before him.  The  legal question, however, has nothing  to do            with the  O'Neil litigation  itself.   Instead, the  issue is                      ______            whether  the  International, in  refusing  to  do other  than            extract its maximum  recovery  unless  the Local secured  the                                         -14-                                          14            withdrawal  of  its members'  lawsuit, violated  the members'            "right  to  sue."7     Two  distinct  issues  are  presented:            payment of the per capita taxes and payment of the late fee.                       The per  capita taxes paid by the  local unions are            the  means by  which the  International funds  its existence.            The  Local makes  no  claim that  the  per capita  taxes  are            usually  waived,  reduced, or  rescheduled.    Since the  per            capita taxes  are payments that the  International expects to            collect  in  full  as a  matter  of  course,  the failure  to                                            ____________________            7.        There   is   clear   evidence  in   the   form   of            correspondence  between  the   International  and  the  Local            showing the International's unwillingness  to waive or reduce            the payments  owed, unless the O'Neil  lawsuit was withdrawn.                                           ______            The arbitrator, however, made no findings on whether this was            so and on the issue  of whether conditioning negotiations  on            the   Local  securing  withdrawal   of  a   member's  lawsuit            constitutedan  interference with a member's "right to sue."                        In addition, an issue mentioned in passing, but not            squarely argued  by the International, is  whether this Court            may  consider  the evidence  of  the International's  conduct            during  settlement  negotiations.   But  issues  not squarely            raised  by the parties are  waived. See Grella  v. Salem Five                                                ___ ______     __________            Cent Savings Bank, 42  F.3d 26, 36 (1st Cir.  1994) (argument            _________________            raised by way of "cursory footnote" deemed waived).  There is            much law, in any  event, to support admissibility.   See NLRB                                                                 ___ ____            v. Gotham Indus., Inc.,  406 F.2d 1306, 1313 (1st  Cir. 1969)               ___________________            (statements  made during  the course  of a  labor negotiation            that are the basis for a charge of unfair labor practices are            admissible on the  trial of  that issue); see  also Urico  v.                                                      ___  ____ _____            Parnell  Oil Co., 708 F.2d 852, 854 (1st Cir. 1983) (evidence            ________________            of  settlement  negotiations is  admissible  to  show that  a            wrongful  refusal  to  make  a  reasonable  settlement  offer            prevented  the   plaintiffs  from  being  able   to  mitigate            damages); Overseas  Motors, Inc.  v. Import Motors  Ltd., 375                      ______________________     ___________________            F.Supp.  499, 537  (E.D.  Mich. 1974)("[I]t  would also  seem            reasonable  to  admit  such  evidence  where  the  settlement            negotiations  are themselves  subjects of  the lawsuit--i.e.,            operative  facts"), aff'd,  519  F.2d 119  (6th Cir.),  cert.                                _____                               _____            denied, 423 U.S. 987 (1975).                 ______                                         -15-                                          15            negotiate over reducing or  rescheduling them cannot on these            facts be said to be a "penalty" on the "right to sue."                        The late fee is a different matter.  The 2% a month            late  fee is at a  rate many states  consider usurious8. When            compounded monthly,  the annual  rate works  out to  26.82% a            year and adds up here to $500,000 -- approximately a third of            the actual principal  payment.  Further, the evidence is that            late fees are routinely waived by the International, and even            when  assessed, the  fees  are  typically  small.9    In  the            context  of the high rate  charged and the  routine waiver of            late  fees in other cases, conditioning a waiver on the Local            securing  withdrawal  of  its   members'  lawsuit  may  be  a            deterrent  to members suing.   "If a union  member's right to            sue is to  have any meaning, courts must be  ever vigilant in            protecting that right against  indirect and subtle devices as            well as against direct and obvious limitations."  Phillips v.                                                              ________            International Ass'n  of Bridge  Workers, Local 118,  556 F.2d            __________________________________________________            939, 942  (9th Cir.  1977); see also  Moore v.  Local 569  of                                       ____ ____  _____     _____________                                            ____________________            8.       For  example, the rate  above which interest charges            constitute  usury in Massachusetts is 20%.  See Mass. Gen. L.                                                        ___            ch.  271,    49;  Begelfer v.  Najarian,  381 Mass.  177, 182                              ________     ________            (1980);  see also Eric A. Posner, Contract Law in the Welfare                     ___ ____                 ___________________________            State:  A Defense  of  the Unconscionability  Doctrine, Usury            _____________________________________________________________            Laws, and Related Limitations on the Freedom  To Contract, 24            _________________________________________________________            J. Legal Stud. 283, 313 (1995) (presenting a short history of            the development of usury laws).                9.        Evidence pointed to by the International itself, to            show how it regularly assesses and collects late  fees, shows            that  other than  in  this case,  all  the late  fees  it has            assessed have been for amounts lower than $1,000.                                          -16-                                          16            Int'l.  Bhd. of Elec. Workers,  53 F.3d 1054,  1056 (9th Cir.            _____________________________            1995) ("The employee  bill of rights protection is  worded in            the  most  inclusive terms,  which  are  clearly intended  to            preclude restraints upon members'  rights to seek relief from            courts and agencies."), petition for cert. filed, 64 U.S.L.W.                                    ________________________            3271 (Sep. 20, 1995).  If enforcement of the late fee portion            of  the arbitrator's award was  in retaliation for the filing            of  the  O'Neil  lawsuit,   that  would  arguably  violate                        ______            101(a)(4)'s prohibition against a union obstructing the right            of  its members to sue.  The arbitrator failed to conduct any            factfinding on this issue.  Hence we vacate the award of late            fees and remand this issue to the district court to send back            to the arbitrator  for factfinding and  decision.  See  Labor                                                               ___  _____            Relations Div. of Constr.  Industries v. International Bhd of            _____________________________________    ____________________            Teamsters,  Local No. 379, 29  F.3d 742, 749  (1st Cir. 1994)            _________________________            (case involving fact-intensive  factor balancing remanded  to            district court with instructions that  it be remanded to  the            arbitrator for initial determination).                      The International  argues that there was no penalty            on the members' right to  sue because in this case, the  late            fees  were imposed before the  O'Neil suit was  brought.  The                               ______      ______            International's distinction, however,  is evanescent.  It  is            not the imposition of the late fees that is at issue, but the            subsequent  refusal to grant a  waiver of those  late fees as            __________                                         -17-                                          17            the  International  usually has  done,  unless  the suit  was            withdrawn.10          Rulings on Motions                                  __________________                      The Local  argues that the district  court erred in            granting the International's motion to compel arbitration and            in  not granting  both the  Local's motion  to have  the case            transferred to Connecticut for  consolidation with the O'Neil                                                                   ______            case and its motion to stay the Massachusetts action.                        There  was  no error  in  compelling  the Local  to            arbitration.   To the extent  that the Local  is arguing that            there  was no need to order it  to arbitration as it would go            voluntarily, the  district court  could  reasonably think  an            order necessary in light of  the motion to enjoin arbitration            filed by the Local in the Connecticut action.                        The  district court's  rulings  on  the motions  to            transfer and  stay are reviewed  for an abuse  of discretion.            See Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st            ___ _____________    ___________________                                            ____________________            10.       The  International  also  argues  that    101(a)(4)            protects  the rights of "members" to sue, and that that right            does not extend to the Local as an  organization.  The Local,            however, is  not asserting its own right  to sue, but that of            its members.   The Local  appears to  meet the  three-pronged            test for associational standing set out in Hunt v. Washington                                                       ____    __________            State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). See            ______________________________                            ___            International   Union,   United   Automobile,   Aerospace   &            _____________________________________________________________            Agricultural Implement  Workers v.  Brock, 477 U.S.  274, 282            _______________________________     _____            (1986) (holding that union has  standing to assert rights  of            members where Hunt test is satisfied); United States v. Local                          ____                     _____________    _____            560 (I.B.T.),  974 F.2d  315, 339-42 (3d  Cir. 1992)(applying            ____________            the test of  organizational standing to sue to the  case of a            Local asserting the rights  of its members under  the LMRDA);            see  also American Postal Workers Union v. M. Frank, 968 F.2d            ___  ____ _____________________________    ________            1373, 1375 (1st Cir. 1992);                                                       -18-                                          18            Cir. 1987); Chrysler Credit Corp. v. Marino, 63 F.3d 574, 578                        _____________________    ______            (7th  Cir. 1995).    The district  court  did not  abuse  its            discretion  in denying  the Local's  motions to  transfer the            action or to stay it.  The Massachusetts suit dealt  with the            distinct issue of the  parties' conduct under the Affiliation            Agreement.   The Connecticut  action dealt with  the separate            issue of whether  the Local's members needed to have ratified            the Affiliation Agreement.  In the interests  of dealing with            matters before  it in  a timely  manner,  the district  court            denied the stay, and was well within its bounds in doing so.                      Accordingly, the  late fee portion of  the award is                      ___________________________________________________            vacated  and remanded to the district court to be remanded to            _____________________________________________________________            the arbitrator.  The district court's judgment is affirmed in            _____________________________________________________________            all other respects.  The International's motion for sanctions            _____________________________________________________________            against the Local, for filing a frivolous appeal,  is denied.            _____________________________________________________________            No costs are awarded.                _____________________                                                             -19-                                          19
