          United States Court of Appeals
                     For the First Circuit

No. 18-1252

        PHARAMOND CONILLE; YVES RIGAUD; MICHELET AUGUSTE;
       LOCAL 402, American Federation of State, County and
 Municipal Employees; JACQUES LARAQUE; GUY RAPHAEL; JEAN LOUIS;
   JAMES SHEA; ELGA BERNARD; HODELIN AUBOURG; GABRIEL BERNARD;
     VERLEEN LEWIS; CARMESUZE MICHAUD; KALLOT JEAN-FRANCOIS;
      MONIQUE MODAN; JOSEPH BERLUS; MARIE AVELINE FORTUNAT;
    VALENTINE DUBUISSON; FRANCHETTE DORSAINVIL; SALLY ROGERS;
               STANLEY SIENKIEWICZ; YVONNE VASSELL,

                     Plaintiffs, Appellants,

                               v.

       COUNCIL 93, American Federation of State, County and
    Municipal Employees; AMERICAN FEDERATION OF STATE, COUNTY
                     AND MUNICIPAL EMPLOYEES,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before

                 Torruella, Lipez, and Kayatta,
                         Circuit Judges.


     Mark D. Stern, with whom Mark D. Stern P.C. was on brief, for
appellants.
     Paul F. Kelly, with whom Sasha N. Gillin and Segal Roitman,
LLP were on brief, for appellees.
August 19, 2019




      -2-
              TORRUELLA, Circuit Judge.      Plaintiffs-appellants, Local

402 and its Vice President, Pharamond Conille ("Conille"), appeal

from the district court's findings, after a bench trial, that Local

402 never requested to appeal its deactivation to the International

Executive Board ("IEB") and that it failed to prove that it was

deactivated in retaliation for having exercised its free-speech

rights.   Because we find that Local 402 did request an appeal to

the IEB, we reverse the district court's judgment and remand the

case for an internal appeal to the IEB.

                               I.    Background1

              The American Federation of State, County and Municipal

Employees ("AFSCME") is an international labor union affiliated

with the American Federation of Labor and Congress of Industrial

Organizations ("AFL-CIO").2          AFSCME is the parent of Council 93,

an   intermediate     union   body    representing    approximately   36,000

workers employed by public and private employers in Massachusetts,

Maine, New Hampshire, and Vermont.           Council 93's representation

is   broken    down   into    thirteen   geographic    and   organizational


1  We summarize the relevant facts, reserving for our analysis a
more detailed discussion of the facts relevant to each issue
presented on appeal.
2  The union structure is multi-layered. AFL-CIO, which has no
role in this case, is the parent of AFSCME. Councils are created
by AFSCME to coordinate activities among the locals, which are the
smallest component parts of the union.


                                      -3-
legislative districts, which include the Massachusetts Department

of Developmental Services ("DDS").                As an affiliate of Council 93,

Local 402 was chartered in 1953 to represent the DDS employees

working   at    the    Fernald     State    School    ("Fernald")     in   Waltham,

Massachusetts.3

           In     the       early        1990s,      Massachusetts      began     to

deinstitutionalize mental health patients and place them into

community-based residential facilities.                    As a result, petitions

were filed to amend the jurisdiction of some local unions to cover

community-based facilities.              Massachusetts announced its plan to

close Fernald in 2003.

           In November 2011, Conille, Local 402's Vice President,

was elected to serve as a DDS representative on Council 93's

Executive Board, a position to which he was reelected in 2015.

During this time, Conille fought to reform the disproportionate

representation        of   Local   402    members     on    the   Executive   Board,

inquired about the lack of racial minorities on the Executive

Board, and advocated for racial minorities within the union.




3  Prior to 1986, the Massachusetts Department of Mental Health
was responsible for the operation of Fernald, and, as such, was
the employer of Local 402's members. In 1986, the Department of
Mental Health was split into two Departments when Massachusetts
created the Department of Mental Retardation, which changed its
name to the Department of Developmental Services in 2009.


                                           -4-
            In March 2017, Pat Glynn, the Director of Strategic

Planning for Council 93, requested that Local 402 be deactivated

because     "[t]here     [were]    no    employees      working    within    the

jurisdiction of Local 402" after Fernald officially closed earlier

that year.4    In response, Local 402's President, Raymond McKinnon

("McKinnon"), wrote to a number of people, including AFSCME's

President, Lee Saunders ("Saunders"), to stop the deactivation.

He also sent a cease and desist letter to Council 93's Executive

Director,     Frank    Moroney    ("Moroney"),    and    filed    charges   with

AFSCME's Judicial Panel for allegedly interfering with Local 402's

ability to serve its members.           In addition to McKinnon's efforts,

Conille   attempted      to   revise    Local   402's    charter   to   include

additional worksites but was unsuccessful.




4  Local 402 argues that the district court clearly erred in
finding that Fernald had closed in 2017 and claims, instead, that
it closed in 2014. The record, however, contains evidence that
"Fernald Center's last resident was discharged on November 13,
2014, [but] the skilled nursing facility that was thereafter
operated on the same grounds[ ] closed at the end of February[ ]
2017 [and that] [t]hese employees now work under the jurisdiction
of other AFSCME local unions."      The record also contains an
affidavit submitted by Conille in support of a motion for partial
summary judgment, in which he stated that "[i]n February 2017 the
relocation of employees from the central Fernald facility to
[community-based residential facilities] was complete, and no
Local 402 member worked at what had been up to that date the
central Fernald complex." In light of this evidence, the district
court's factual finding is not clearly erroneous and thus will not
be disturbed.


                                        -5-
            Saunders made the decision to deactivate Local 402 on or

about May 30, 2017.         On June 2, 2017, AFSCME sent an order to

Local 402 to return its funds and property.                    In response, on

June 7, 2017, Local 402's legal counsel, Mark Stern ("Stern"),

sent a letter challenging Saunders's decision and requesting that

the deactivation be rescinded.              AFSCME declined to acquiesce,

stating that its decision to deactivate Local 402 was made in

accordance with AFSCME's constitution.              On June 12 or 13, 2017,

the IEB ratified Saunders's decision to deactivate Local 402.

            Following   deactivation,        members      of   Local    402     were

transferred to Local 646 or Local 1730.             Conille was transferred

to Local 646.       At the next Council 93 Executive Board meeting,

Conille    was   notified    that     he    would    no    longer      sit    as   a

representative of Local 402 because this local had been deactivated

and he was now a member of Local 646.                Furthermore, Local 646

already had a representative on the Executive Board.

            On August 14, 2017, Conille and eighteen other members

of Local 402 ("Local 402" collectively) filed suit against Council

93   and   AFSCME   ("Council   93"    collectively).          In   the      amended

complaint filed on September 8, 2017, Local 402 alleged that:

(1) Local 402 was denied equal voting rights as guaranteed under

the AFSCME constitution and the Labor Management Reporting and




                                      -6-
Disclosure Act ("LMRDA")5 (Count I); (2) Local 402's deactivation

violated     Article     IX,    Section    35     of   the   AFSCME     constitution

(Count II); and (3) Local 402 was deactivated as a retaliatory

measure    for      Conille's    free    speech    (Count     III).      Council    93

counterclaimed, asserting that Local 402 failed to return its

assets,      bank    accounts,     and    records      as    required    under     its

constitution following deactivation.

             On September 22, 2017, Local 402 filed a motion for

partial summary judgment on Counts I and II, which Council 93

opposed.      The district court denied summary judgment as to Count

I because it found that there was a genuine issue of material fact

regarding the alleged "defects in the proportional voting" system

implemented.        As to Count II, the court held that Council 93's

interpretation of AFSCME's constitution -- that is, that what had

occurred was a deactivation of Local 402 under Article V, Section

6 and not a merger or consolidation under Article IX, Section 35

as Local 402 contended -- was reasonable, and thus, the court would

defer   to    Council     93's    interpretation.            The   district   court,

however, clarified the scope of its decision by stating, "all I

decided, in deciding summary judgment against [Local 402] on Count

2, was that the interpretation[] of the [AFSCME] [c]onstitution,



5   29 U.S.C. §§ 401 et seq.


                                          -7-
as advanced by the Council, was reasonable and . . . therefore the

Court ought defer to it."     As a result, the court left the question

of Local 402's alleged wrongful deactivation for trial but decided

it would defer to AFSCME's interpretation of its constitution --

that Article V, Section 6, governed their breach of contract claim.

A two-day bench trial took place on October 26-27, 2017.

             The district court issued its ruling from the bench on

December 4, 2017.      The court found in favor of Local 402 as to

Count   I,   noting   that   the   disproportionate   representation   on

Council 93's Executive Board was not reasonable under Title I of

the LMRDA.     It, however, ruled in favor of Council 93 as to both

Counts II and III.6    The district court devoted almost the entirety

of its bench ruling to the disproportionate representation of

Council 93's Executive Board.         As to the remaining counts, the

court merely stated that Local 402 failed to persuade the court

that it was entitled to judgment in its favor.         The court stated

that it would "supplement its order with more detailed findings

and rulings."     It then entered judgment.

             On December 14, 2017, Council 93 filed a motion to amend

judgment pursuant to Fed. R. Civ. P. 59(e), requesting that the



6  The court also dismissed Council 93's counterclaim. The court
found the counterclaim "moot because [Local 402 had] already agreed
at trial to return the funds."


                                    -8-
court enter judgment for Council 93 as to its counterclaim.             On

December 20, 2017, Local 402 filed its own post-judgment motion.

The district court "denied" both parties' post-judgment motions on

December 22, 2017, stating that, "[a]s this [c]ourt has already

explained, a full memorandum of decision will [be] enter[ed]

pursuant to Fed. R. Civ. P. 52.      These motions are more properly

addressed as motions to enforce the judgment."

           Thereafter, on January 2, 2018, Council 93 appealed from

the district court's decision on Count I and its dismissal of

Council   93's   counterclaim. 7   On    January   5,   2018,   Local   402

requested an open-ended extension of time to appeal until the

district court had provided the promised findings of facts and

conclusions of law.      The district court granted the motion on

January 8, 2018.     While still waiting for the district court to

issue its findings of fact and rulings of law, Local 402 filed its

notice of appeal on March 22, 2018.

           On May 15, 2018, the district court supplemented its

oral decision with additional findings of fact and rulings of law.

It held that Local 402 had not properly appealed its deactivation

to the IEB, and that it had failed to prove that it was deactivated

in retaliation for Conille's criticism of Council 93's Executive


7  That appeal is currently pending before this court.          See Appeal
No. 18-1038.


                                   -9-
Board.    After the district court issued its findings and rulings,

Local 402 filed an amended notice of appeal on June 6, 2018.

                                 II.     Discussion

A.   Timeliness of the Notice of Appeal

             Council 93 claims that this court lacks jurisdiction to

entertain this appeal because Local 402 filed an untimely notice

of appeal.

             "This    court      must     verify       that     it     has     appellate

jurisdiction     before        addressing       the    merits    of     any     appeal."

United States v. Santiago-Colón, 917 F.3d 43, 49 (1st Cir. 2019)

(citing    Espinal-Domínguez        v.    Puerto      Rico,     352    F.3d    490,    495

(1st Cir. 2003)).      "Jurisdiction is a question of law subject to

de novo review."          Id. (quoting United States v. W.R. Grace,

526 F.3d 499, 505 (9th Cir. 2008)).

             "To secure appellate review of a judgment or order, a

party must file a notice of appeal from that judgment or order."

Manrique    v.   United    States,        137    S.    Ct.    1266,     1271     (2017).

Generally, parties must file notices of appeal in civil cases

within 30 days of the entry of the judgment.                          Fed. R. App. P.

4(a)(1)(A).

             On December 20, 2017, Local 402 filed a timely motion to

amend the judgment under "Rules 59(e) and 60(b)(6)" of Federal

Civil    Procedure.       In    this     motion,      Local   402     raised    Rule    52


                                          -10-
concerns, noting, "the record shows that . . . [the district court]

made absolutely no findings of fact or rulings of law, as required

by F.R.Civ.Pro, Rule 52(a)(1)" as to any counts besides Count I.8

Local 402 argues that this motion should be construed as one under

Rule 52(b), which provides that "[o]n a party's motion filed no

later than 28 days after the entry of judgment, the court may amend

its findings -- or make additional findings -- and may amend the

judgment accordingly.   The motion may accompany a motion for a new

trial under Rule 59."   Fed. R. Civ. P. 52(b).   We agree.

           Though Local 402 titled its motion as one under Rule

59(e) and Rule 60(b)(6), not Rule 52(b), nomenclature is not

controlling.   See, e.g., Parisie v. Greer, 705 F.2d 882, 896-97

(7th Cir. 1983) (Swygert, J., dissenting) (collecting cases).    By

discussing Rule 52 and requesting that the district court make

additional findings, Local 402 made a valid Rule 52(b) motion.

           Moreover, the district court appeared to construe Local

402's motion as arising under Rule 52(b). Although on December 22,



8   Fed. R. Civ. P. 52(a)(1) states that,

        [i]n an action tried on the facts without a jury or
        with an advisory jury, the court must find the facts
        specially and state its conclusions of law separately.
        The findings and conclusions may be stated on the
        record after the close of the evidence or may appear
        in an opinion or a memorandum of decision filed by
        the court. Judgment must be entered under Rule 58.


                               -11-
2017, the district court stated that it was denying Local 402's

motion to amend the judgment, it also stated, "[a]s this Court has

already   explained,   a   full   memorandum   of   decision   will   enter

pursuant to Fed. R. Civ. P. 52."          Local 402 argues this order

granted partial relief and deferred disposition of its Rule 52(b)

motion.   It is clear from the order that the district court did

not deny Local 402's implicit Rule 52(b) motion nor did it fully

resolve it.    Accordingly, we hold the district court's order

delayed final disposition of Local 402's implicit Rule 52(b) motion

until the court issued its findings of fact and rulings of law in

its May 15, 2018 memorandum of decision.

           Pursuant to Fed. R. App. P. 4(a)(4)(A)(ii), the time for

Local 402 (or Council 93) to file an appeal ran from the entry of

the order disposing of the Rule 52(b) motion.          See Fed. R. App.

P. 4(a)(4)(A) ("If a party files in the district court any of the

following motions under the Federal Rules of Civil Procedure --

and does so within the time allowed by those rules -- the time to

file an appeal runs for all parties from the entry of the order

disposing of the last such remaining motion: . . . (ii) to amend

or make additional factual findings under Rule 52(b), whether or

not granting the motion would alter the judgment.").           Therefore,

Local 402 had thirty days from May 15, 2018, when the district




                                   -12-
court issued its memorandum of decision disposing of Local 402's

implicit Rule 52(b) motion, to file an appeal.

          Per Fed. R. App. P. 4(a)(4)(B)(i), Local 402's notice of

appeal -- filed on March 22, 2018, before the district court's

disposition of Local 402's Rule 52(b) motion -- became effective

on May 15, 2018.   See Fed. R. App. P. 4(a)(4)(B)(i) ("If a party

files a notice of appeal after the court announces or enters a

judgment -- but before it disposes of any motion listed in Rule

4(a)(4)(A) -- the notice becomes effective to appeal a judgment or

order, in whole or in part, when the order disposing of the last

such remaining motion is entered.").    Local 402's amended notice

of appeal, filed on June 6, 2018, was also within thirty days of

May 15, 2018, when the district court issued its decision disposing

of Local 402's Rule 52(b) motion.     Therefore, Local 402's appeal

is timely.9   Finding no jurisdictional bar, we now turn to the

merits of this appeal.




9  In addressing the timeliness of Local 402's notice of appeal,
the parties also focused on the validity of the district court's
grant of Local 402's January 5, 2018 motion for an open-ended
extension of time to file a notice of appeal. Because we find,
however, that Local 402's notice of appeal was timely, regardless
of the propriety of the district court's grant of Local 402's
January 5, 2018 motion, we need not address those alternative
arguments.

                               -13-
B.    Deactivation of Local 402

             In Count II of its complaint, Local 402 alleged that it

had   been   denied       a   procedural     right,     embodied       in    the    AFSCME

constitution, to appeal its deactivation.                        In dismissing this

claim, the court found -- without expressing any opinion as to

Local 402's right to an appeal -- that the evidence presented at

trial failed to show that Local 402 had ever requested a formal

appeal.

             The district court identified several instances in which

Local 402 claimed it requested an appeal.                    First, in April 2017,

after Council 93's Assistant Executive Director, Mark Bernard

("Bernard"), informed Conille of Council 93's recommendation to

deactivate Local 402, Local 402's President, McKinnon, wrote to

the    AFSCME    President,        Saunders,       asking    him       to   reject     the

recommendation       to       deactivate    Local      402   and       requesting      "an

opportunity to meet with [Saunders] directly, or with a personal

representative."          Second, in early May 2017, McKinnon sent a

"cease and desist" letter to the Executive Director of Council 93,

Moroney, asking that he stop the deactivation process.                         Third, in

late May 2017, McKinnon filed charges with the AFSCME International

Judicial     Panel   against      Bernard        and   Council    93     for   allegedly

interfering with Local 402's ability to serve its members "through

its    elected   [officers]."              The    district       court      found    these


                                           -14-
communications did not constitute a formal request to appeal Local

402's deactivation.

            The court further noted Conille's testimony that his

attorney, Stern, had sent a letter to AFSCME on June 7, 2017,

requesting that the IEB review Local 402's deactivation which,

according to Conille, also constituted a request for appeal to the

IEB.   According to the court, the letter stated, "[i]f the [AFSCME]

President and [the International] Executive Board ever issue . . .

a [deactivation] notification, be assured that [Local 402] will

exercise the right to appeal for a hearing before the [IEB]."

Yet, in the court's view, "proclaiming one will exercise one's

right to an appeal is not the same as actually exercising that

right."     It thus concluded that Stern's letter was "not a proper

request for an appeal" to the IEB.

            Local 402 argues that the district court clearly erred

in finding that Local 402 failed to request a formal appeal of the

deactivation decision to the IEB.         According to Local 402, the

evidence    shows   that   it   "unconditionally   request[ed]   an   IEB

hearing."

            Section 301(a) of the Labor Management Relations Act

("LMRA") "empowers district courts to hear suits for breach of

contract between two labor organizations."10       Lydon v. Local 103,


10   Section 301(a) of the LMRA provides that:

                                   -15-
Int'l Bhd. of Elec. Workers, 770 F.3d 48, 54 (1st Cir. 2014); see

also 29 U.S.C. § 185(a).           Because a union constitution is merely

a contract between parties, Doty v. Sewall, 908 F.2d 1053, 1060

(1st Cir. 1990), courts also analyze a suit by union members

alleging that a union has violated its constitution as a Section

301(a) suit for breach of contract between labor organizations.

Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93,

103 (1991); Lydon, 770 F.3d at 54 ("[Union] members can sue to

enforce the contract/constitution as third-party beneficiaries.").

             Exhaustion    of   union    appeals   procedures   is   usually

required before filing a Section 301(a) suit unless exhaustion is

demonstrably "futile."       Clayton v. Int'l Union, UAW, 451 U.S. 679,

683-85 (1981).      "Where the union member is fully advised of appeal

procedures    and    the   union    constitution   mandates   that   they   be

exhausted . . . we hold that the balance falls in favor of requiring

exhaustion."        Monroe v. Int'l Union, UAW, 723 F.2d 22, 25-26

(6th Cir. 1983).



       Suits for violation of contracts between an employer
       and a labor organization representing employees in an
       industry affecting commerce as defined in this Act,
       or between 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.

29 U.S.C. § 185(a).

                                      -16-
            Local     402    was   deactivated         by   the        International

President, Saunders, pursuant to Article V, Section 6 of the AFSCME

constitution, which states that:

       The International President, subject to the approval
       of the International Executive Board, shall issue
       charters to subordinate bodies of the Federation and
       shall, subject to an appeal to the International
       Executive Board, determine all matters relating to
       the   jurisdiction    and   proper   affiliations   of
       subordinate bodies.     The International President,
       subject to the approval of the International Executive
       Board, shall have the authority to negotiate and
       consummate, on such terms and conditions as the
       International    President    considers   appropriate,
       mergers   or    consolidations    with   organizations
       representing public employees or other appropriate
       groups of workers . . . .

            Council     93    concedes      that   Article        V,     Section   6

incorporates    an    opportunity      to     appeal   after      a    deactivation

decision.   But it argues that Local 402 refused to recognize that

it had been deactivated -- and instead centered its efforts in

contending that the termination of its charter was a merger or

consolidation       under    Article   IX,     Section      35    of    the   AFSCME

constitution -- and thus never affirmatively requested an appeal.

Because Local 402 never appealed the deactivation decision to the

IEB, its argument goes, Local 402 failed to exhaust internal

remedies as required under Article XII, Section 10 of the AFSCME




                                       -17-
constitution and was thus barred from filing suit in court.11           We

disagree.

            The district court concluded that Local 402 failed to

request   an   appeal,   citing   certain   correspondence   between   the

parties, including Stern's June 7, 2017 letter to AFSCME concerning

the deactivation.    The court noted that this letter stated, "[i]f

the [AFSCME] President and [the International] Executive Board

ever issue . . . a [deactivation] notification, be assured that

[Local 402] will exercise the right to appeal for a hearing before

the [IEB]," and concluded that this was merely a proclamation that

Local 402 intended to exercise its right to appeal, which is

different from actually exercising such a right.

            In reaching that conclusion, the district court failed

to consider the entire content of the letter.       Stern's letter also

stated, "if you deem your transmission dated June 2, 2017 . . . to

be such a notification [that Local 402 had been deactivated], and


11The LMRDA allows labor organizations to require LMRDA plaintiffs
to first exhaust internal union remedies.      To that effect, it
provides that "any such member may be required to exhaust
reasonable hearing procedures . . . within such organization,
before instituting legal or administrative proceedings against
such organizations or any officer thereof." 29 U.S.C. § 411(a)(4).
The AFSCME constitution includes such an exhaustion requirement.
Article XII, Section 10 of the AFSCME constitution states, "[n]o
member or subordinate body shall institute any civil action, suit
or other proceeding in any court . . . against [AFSCME] . . .
without first exhausting all [internal] remedies, including all
available appeals . . . ."


                                   -18-
be assured my Client and I do not, my Client would exercise such

a right and [Local 402] hereby does at one and the same time

reserve and exercise such a right."         (Emphasis added).     Stern's

statement was phrased in the alternative, but it was unambiguous

-- if AFSCME deemed its letter sent on June 2, 2017 as a notice of

deactivation, Local 402 was requesting an appeal of that decision

to the IEB.   See United States v. Frazier-El, 204 F.3d 553, 566-67

(4th Cir. 2000) (noting that "people make countless requests in

the alternative," and such requests do "not automatically render

the alternative request unclear or equivocal").         Less than a week

later, on June 12, 2017, Stern sent a letter to AFSCME stating

that, "to the extent that [your letter sent on June 2, 2017]

purported to be such a notification [of deactivation], my client

immediately   appealed   that    decision      under    the    applicable

Constitutional provision.    Hence, Local 402 fully expects to be

recognized until that appeal is heard . . . ."

          Accordingly,   based   on   the   June   7,   2017   letter,   we

conclude that Local 402 exercised its right to appeal to the IEB.

The district court thus clearly erred in finding otherwise by

focusing on only a section of that letter.         See Richard v. Reg'l

Sch. Unit 57, 901 F.3d 52, 59 (1st Cir. 2018) (noting that,

following a bench trial, this court reviews findings of fact for

clear error and this standard is met only when, on the entire


                                 -19-
evidence, we are left with the definite and firm conviction that

a mistake has been committed).        The fact that Local 402 was never

afforded an appeal is a breach of contract, actionable under

Section 301(a) of the LMRA.         See Lydon, 770 F.3d at 54.

             The matter of remedy remains.        In bringing this suit,

Local 402 "sought to compel AFSCME to follow its own procedures in

regard to [its] deactivation."        On appeal, Local 402 conceded that

the source of those procedural rights resides in Section 6 of

Article V.    The parties agree that the procedure provided by that

provision allows for an appeal by Local 402.          We have found that

Local 402 sought such an appeal, but the IEB did not then entertain

or decide that appeal.

                             III.    Conclusion

             We therefore reverse the district court's judgment that

Local 402 did not preserve its appeal rights, and we remand the

case   to   the   district   court    with   instructions   to   order   the

defendants to either rescind the deactivation of Local 402 or

proceed forward to hear the appeal in the ordinary course.                We

also vacate any judgment dismissing Count III with prejudice, with

instructions that Count III be dismissed without prejudice as

unripe unless and until Local 402's internal union appeal has been

concluded.     Costs are awarded to plaintiffs.

             Reversed, Remanded, and Vacated.


                                     -20-
