
USCA1 Opinion

	




                            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                                         -2-          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.                                           -3-                    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'                                         -4-          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."                                         -5-          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).                                         -6-          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.                                         -7-          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                                         -8-          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.                                         -9-          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.                                         -10-                    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.                                          -11-          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                                         -12-          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).            ___                                         -13-          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.                                         -14-                    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                                         -15-                      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).                                          -16-          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,                                         -17-          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.                                          -18-          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'                                         -19-          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                                         -20-          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.                                         -21-          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.                                           -22-          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                                         -23-          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                                         -24-          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).                                         -29-
