

                  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 &amp;  Hiatt, P.C. were  on brief for                                                        
appellant.
     Richard  A. Perras, with whom Steven M. Cowley and Edwards &amp;                                                                           
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 &amp; 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 &amp; 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 &amp;  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 &amp; Gulf,  363 U.S. at 582-583, quoted in AT &amp; 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  &amp; Gulf  Navigation  Co., 363  U.S.  574                                                           
(1960); Steelworkers v.  Enterprise Wheel &amp;  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 &amp;  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  &amp; 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  &amp; 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 &amp; 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 &amp; 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 &amp; 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-
