

                United States Court of Appeals
                    For the First Circuit

                                         

No. 95-1471

     SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC,

                     Plaintiff, Appellee,

                              v.

             LOCAL 1199 N.E., SEIU, AFL-CIO, CLC,

                    Defendant, Appellant,
                                         

        APPEAL FROM THE UNITED STATES DISTRICT COURT 

              FOR THE DISTRICT OF MASSACHUSETTS

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

                            Before

                     Stahl, Circuit Judge,                                                     
               Campbell, Senior Circuit Judge,                                                         
                  and Lynch, Circuit Judge.                                                      

                                         

Larry Engelstein with whom Jonathan P.  Hiatt, Warren H. Pyle, and                                                                         
Angoff, Goldman, Manning,  Pyle, Wanger  &amp; Hiatt, were  on briefs  for                                                        
appellee.
Robert M. Gault with whom Richard  Mirabito, Susan M. Basham, John                                                                              
M. Creane, Michael E. Passero, Mintz, Levin, Cohn, Ferris, Glovsky and                                                                              
Popeo,  P.C.,  and Law  Firm of  John M.  Creane,  were on  briefs for                                                        
appellant.

                                         
                      November 21, 1995
                                         
          LYNCH, Circuit Judge.  The attempted dissolution of                      LYNCH, Circuit Judge.                                          

timeless  vows  of fidelity  between two  labor organizations

gave  rise   to  this  litigation.     An  extremely  unhappy

relationship between a local  union and its International led

the Local to stop paying its monthly per capita taxes  to the

International.  That in turn led the International to sue the

Local  in federal  court  in Massachusetts  to collect  those

taxes.  When  the Local replied that it  had no obligation to

pay the  taxes, the  International claimed arbitration.   The

court ordered arbitration; the arbitrator ordered the payment

of the  taxes and  late fees.    The Local  appeals from  the

district court's decision confirming the  arbitrator's award.

We affirm in part and vacate and remand in part.

          The   plaintiff   International   is  the   Service

Employees International  Union, AFL-CIO, CLC ("SEIU"),  a one

million member organization.  The Local is District  1199, an

18,000  member union  of health  care employees.    The Local

asserts that following a New York Times article in the Spring                                                   

of 1991   questioning the propriety of the financial dealings

of  certain International  officials,  it led  a movement  to

promote reform  within the International.   These efforts, it

says,  were  met  with retribution  from  the  International,

which, in  turn,  caused  the Local  to withhold taxes.   The

International  denies  any  wrongdoing  or   retribution  and

attributes more common, self-interested motives to the Local.

                           History                                              

                             -3-                                          3

          The International sued  the Local in federal  court

in Massachusetts on September 17, 1993, seeking a preliminary

injunction requiring the Local to  pay per capita taxes which

it  had  withheld since  October 1992.    Six days  later, in

federal court in Connecticut,  certain individual members  of

the Local  sued both the  Local itself and  the International

for  rescission   of  the contract  between  the two  on  the

grounds  that the  contract  was entered  into without  fully

informing  the  members  or  receiving  their  authorization.

This, the  Connecticut suit claimed,  contravened the  bylaws

and  constitution governing the  Local as well  as the Labor-

Management Reporting  and Disclosure Act ("LMRDA"), 29 U.S.C.

  401, et seq.1                          

          The  Massachusetts court denied  the Local's motion

to  transfer the action to  Connecticut.  It  also denied the

International's  motion for  a  preliminary  injunction,  but

granted the  International's  motion to  compel  arbitration.

The district  court denied both  the Local's motions  to stay

proceedings and to dismiss and the International's motions to

enjoin  the Local  from  proceeding with  its cross-claim  in

Connecticut and  for entry  of default.   The  district court

later  denied the  Local's motion  to reconsider,  vacate and

                                                    

1.        Motions in  the Connecticut case, O'Neil  et al. v.                                                                      
New England  Health Care Employees Union,  District 1199, and                                                                         
SEIU, No.  3:93CV1918(JAC)  (D. Conn.), were under advisement                 
at the time of oral argument in this case.

                             -4-                                          4

reassign  for  reargument the  motion to  compel arbitration.

The  Local, however,  went to  arbitration voluntarily.   The

parties  agreed upon  the  six questions  to  be put  to  the

arbitrator.2 

          Before arbitration commenced, on January  19, 1994,

the  Executive  Board  of  the  Local  unanimously  voted  to

terminate its contract with the International.

                                                    

2.        The Local and the International stipulated that the
six questions to be addressed by the arbitrator were:

1. Does the failure of District 1199 NE to remit  to the SEIU
the monthly per capita tax, as set forth in Article 10 of the
Affiliation   Agreement,  constitute   a  violation   of  the
Affiliation Agreement, and if so, what shall be the remedy?

2.   Does the failure of District  1199 NE to pay to the SEIU
the late penalty fee as required under Art II, Sec.  3 of the
SEIU constitution  and bylaws  constitute a violation  of the
Affiliation Agreement, and if so, what shall be the remedy?

3.  Does  the failure of District 1199 NE to pay its full per
capita  tax obligations to  the SEIU before  paying any other
bills,  as required  under  Art  XII,  Sec.  4  of  the  SEIU
constitution  and  bylaws,  constitute  a  violation  of  the
Affiliation Agreement, and if so, what shall be the remedy?

4.   Does the failure  of District 1199  NE to furnish  to an
auditor  designated by the International President to examine
its books and  record all  of its  books, records,  accounts,
receipts,  vouchers, and  financial  data  as  requested,  as
required  under Art XII,  Sec. 6(a) of  the SEIU constitution
and  bylaws,  constitute  a   violation  of  the  Affiliation
Agreement, and if so, what shall be the remedy?

5.   Does the District have  the right to  terminate the 1992
Affiliation Agreement, and if so, under what circumstances?

6.  Does  the District's  purported termination  on or  about
January 19, 1994, violate the 1992 Affiliation Agreement, and
if so, what shall be the remedy?

                             -5-                                          5

          After seven days of hearings, the arbitrator issued

an initial  decision that:  (i)  the Local was  liable to the

International for per capita  taxes;  (ii) the Local  did not

have the  right to  terminate its contract  (the "Affiliation

Agreement")  with  the  International,  except   through  the

procedure set  forth within the  International's Constitution

and Bylaws,  and (iii)  the Local's  purported disaffiliation

vote of  January 19, 1994 violated  the Affiliation Agreement

and  was  rescinded.   The  Arbitrator  reserved decision  on

various  remedial  issues, including  payment  schedule, late

fees,  auditor's access to  data, and priority  of paying per

capita  obligations, in order to give the parties a chance to

reach a negotiated resolution.

          Negotiations on remedial matters  failed, according

to the Local,  because the  International preconditioned  any

compromise  on  the  Local  securing the  withdrawal  of  the

Connecticut lawsuit.  The Local argued to the arbitrator that

such preconditioning  was an unlawful burden on the "right to

sue"  guaranteed  to  union  members  by   the  LMRDA.    The

arbitrator, however, refused to  consider the issue, since it

related to a   separate lawsuit that was not  before him.  On

November  9,  1994 the  arbitrator awarded  the International

unpaid  taxes, late  fees, and  all other  ancillary relief.3

                                                    

3.        The  total  amount of  unpaid  dues  and late  fees
(calculated at  the rate  of 2% per  month, compounded),  was
approximately  $2,000,000  ($1,500,000  in  unpaid  dues  and

                             -6-                                          6

Post-arbitration,  the International  moved  to  confirm  the

arbitrator's  award, and the Local  moved to vacate  it.  The

district court granted the International's motion to confirm.

          The  Local  has appealed,  making  three arguments.

The Local  argues that the arbitrator  exceeded his authority

by rescinding  the vote of  the Local's  Executive Board  and

ordering payment of the  outstanding per capita taxes, saying

these  remedies  were  not  authorized   by  the  Affiliation

Agreement.   The  Local also  urges that confirmation  of the

arbitrator's award  violated public policy in  that the award

undermined both the free speech rights of union members to be

critical  of  the  International   and  to  institute   legal

proceedings against it.   The Local  finally argues that  the

district court  erred in granting the  International's motion

to compel arbitration and in denying both the  Local's motion

to  stay proceedings and its  motion to transfer  the case to

Connecticut.

            Confirmation of the Arbitrator's Award                                                              

          This   Court   reviews    the   district    court's

confirmation  of  the  arbitrator's   award  de  novo  as  to                                                                 

questions of law and mixed questions of law and fact, and for

clear error  as to questions of  fact.  See First  Options of                                                                         

Chicago,  Inc.  v. Kaplan,  115  S.  Ct. 1920,  1926  (1995).                                     

Federal  court review  of  arbitral decisions  on matters  of

                                                    

$500,000 in late fees). 

                             -7-                                          7

contract    interpretation    is    extremely   narrow    and

extraordinarily deferential.  See Dorado Beach Hotel Corp. v.                                                                      

Union de Trabajadores de la Industria Gastronomica Local 610,                                                                        

959  F.2d 2, 3-4 (1st Cir. 1992); El Dorado Technical Servs.,                                                                         

Inc. v. Union General de Trabajadores, 961 F.2d 317, 319 (1st                                                 

Cir. 1992) ("[A] court should uphold an award that depends on

an  arbitrator's  interpretation of  a  collective bargaining

agreement  if it  can find,  within the  four corners  of the

agreement, any plausible basis for that interpretation."). 

          The Local  argues that this case  should be treated

as a commercial contract dispute between two entities and not

as  a labor  dispute  under    301  of the  Labor  Management

Relations  Act, 29  U.S.C.    185.   This, the  Local posits,

would permit  less deference to  the arbitrator.   Indeed, it

appears  it would  not.    This  Court  in  Advest,  Inc.  v.                                                                     

McCarthy,  914  F.2d  6  (1st  Cir.  1990)  explained,  after                    

reviewing different  articulations of the  standard of review

of an  arbitrator's award in both labor and commercial cases,

that the  different formulations were in essence "identical."

See id. at 8-9; see also Hill v. Norfolk W. Ry. Co., 814 F.2d                                                               

1192,  1195 (7th  Cir. 1987).   Without  deciding the  larger

question, we decline  in this dispute  between two unions  to

vary from  the  deferential treatment  of arbitration  awards

established by the Supreme Court in labor disputes  under the

United   Steelworkers   trilogy  of   cases.     See   United                                                                         

                             -8-                                          8

Steelworkers v. Enterprise Wheel  &amp; Car Corp., 363  U.S. 593,                                                         

596-97 (1960); United Steelworkers  v. American Mfg. Co., 363                                                                    

U.S. 564, 568  (1960); United Steelworkers v.  Warrior &amp; Gulf                                                                         

Navigation Co., 363 U.S. 574, 582 (1960).                           

          The Local argues that  the arbitrator exceeded  his

authority  by  imposing remedies  he  was  not authorized  to

impose.  It concentrates its force on the arbitrator's ruling

that the disaffiliation vote  was contrary to the Affiliation

Agreement and his award rescinding the vote.  It also attacks

the order that it pay the due per capita taxes  and late fees

that had accrued.   

          The   arbitrator    interpreted   the   Affiliation

Agreement to  disallow disaffiliation  except by  the methods

set forth  in the  International's Constitution  and Bylaws.4

Those  methods do not include  disaffiliation by a  vote of a

local  union's   executive  board.     The  only   method  of

disaffiliation  allowed  by the  International's Constitution

and   Bylaws  imposes  onerous  requirements.    The  article

entitled  "Dissolution"  states  that  no  local  union  "can

dissolve, secede  or disaffiliate  while there are  seven (7)

dissenting  members  .  .  . ."    Further,  the  Affiliation

Agreement is of indefinite duration.   

                                                    

4.        In  the  Affiliation  Agreement  the  International
explicitly   waived,  for   the  Local,   a  number   of  the
requirements  of its  Constitution  and Bylaws,  but did  not
waive  the  requirements  of  Article  XXIV,  the dissolution
provision. 

                             -9-                                          9

          The   Local  argues  that  the  arbitrator's  award

contradicts the autonomy it  had explicitly negotiated for in

the Affiliation Agreement.  Whether or not we might have read

the contract differently, or have sympathy for the plight  of

the Local that  now finds itself unable  to disaffiliate from

the    International  with whom  it  has,  at  best, a  badly

strained   relationship,  the  arbitrator's  reading  of  the

Affiliation Agreement is plausible  and we cannot disturb it.

In  the face  of evidence  that affiliation  negotiations had

been lengthy, with the Local negotiating a number of specific

protective provisions in  the Affiliation Agreement  (such as

bars  on  the   power  of  the  International   to  impose  a

trusteeship, a merger, or a forfeiture of assets in the event

of  a dissolution),  it  was plausible  to  conclude, as  the

arbitrator  did, that the Local bound itself to a contract of

unlimited duration that allowed only a tiny escape hatch.5 

          The Local also erroneously argues that because this

case  involves a  contract dispute,  the arbitrator  was only

authorized to award  damages and nothing  else for breach  of

contract.   Specific performance is a recognized remedy for a

                                                    

5.        The   Local  also   points   to  cases   mentioning
"autonomy" as a factor in  determining a local union's  right
to   terminate  its  affiliation  agreement.    Those  cases,
however, turn, as does  this one, on the  terms of the  local
union's agreement  with the international.   See, e.g., Local                                                                         
No. 1, Amalgamated Lithographers  v. Brown, 270 N.Y.S.2d 891,                                                      
896  (N.Y. App.  Div.  1966), aff'd,  286 N.Y.S.2d  853 (N.Y.                                               
1967); Sanders v. De  Lucia, 266 F. Supp. 852,  856 (S.D.N.Y.                                       
1967), aff'd, 379 F.2d 550 (2d Cir. 1967).                          

                             -10-                                          10

breach of contract, and because that remedy was not expressly

precluded by the Affiliation  Agreement, it was plausible for

the arbitrator to  award it.  "[S]ubject to the  terms of the

empowering clause, arbitrators  possess latitude in  crafting

remedies  as wide  as  that which  they  possess in  deciding

cases." Advest,  914 F.2d at 10-11.                           

          The   Local  argues  that  the  arbitrator's  award

exceeded his authority in that requiring a payment of the per

capita  taxes  plus  a penalty  was  not  among  the specific

remedies  listed  in  the  International's  Constitution  and

Bylaws  for non-payment  of  dues.   The remedies  explicitly

listed are suspension  of the local union,  revocation of the

local  union's charter,  and appointment of  a trustee.   The

arbitrator,  however,  plausibly  rejected an  interpretation

that these were exclusive remedies.  The relevant  section of

the  International's Constitution and  Bylaws does  not limit

the   International's  remedies  to   the  three  enumerated.

Rather, the relevant clause  refers the matter of non-payment

of  dues to the International President for such action as he

shall  deem appropriate,  "including without  limitation" the                                                                    

three actions specifically listed (emphasis added).

             Alleged Violations of Public Policy                                                            

          The  Local argues that  the arbitrator's award must

be set  aside in any event  because it is  contrary to public

policy  that is  explicit, well-defined  and dominant.   See,                                                                        

                             -11-                                          11

e.g., W.R. Grace &amp; Co. v. Local Union 759, Int'l Union of the                                                                         

United Rubber, Cork,  Linoleum &amp; Plastic Workers of  Am., 461                                                                    

U.S. 757, 766 (1983).  That  policy, it says, is contained in

the   LMRDA,       101(a)(2),(4),  and  the   protections  it

guarantees  to union  members to  be able  to express  freely

their  views and  opinions, and  to institute  proceedings in

court or in front of an administrative agency.  W h e n     a

violation  of  well-defined  and  dominant public  policy  is

asserted, the  question is  ultimately one for  resolution by

the  courts,  and  a  court  is  required  to  make  its  own

independent evaluation.  See id.                                            

          The  Local  makes   two  very  precise  arguments.6

First, it  says, the award condones violation  of free speech

rights  in ignoring  that the  International "repeatedly  and

systematically retaliated  against the District  for engaging

in union  democracy activities."   As  an example, the  Local

points  to the  fact that  the International  President, John

Sweeney, did  not include  the Local's representative  on his

slate of candidates  for election to  the executive board  of

the International (which would,  according to the Local, have

                                                    

6.        For the first time on appeal, the Local also argues
that  the arbitrator's reading of the Affiliation Agreement's
preconditions to disaffiliation  violates public policy.   It
is settled that "absent the most extraordinary circumstances,
legal theories not raised squarely in  the lower court cannot
be  broached  for  the  first  time  on  appeal."  Teamsters,                                                                         
Chauffeurs, Warehousemen  and Helpers Union, Local  No. 59 v.                                                                      
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).                                 

                             -12-                                          12

guaranteed the election of  its candidate).  The  Local cites

in  support of  its  argument cases  involving situations  in

which the union  officials whose rights under  the LMRDA were

endangered  had  won  elections  and were  being  removed  or                                

suspended during their terms.  See Maceira v. Pagan, 649 F.2d                                                               

8, 10-11  (1st Cir. 1981);  Bradford v. Textile  Workers, 563                                                                    

F.2d 1138,  1139-40 (4th  Cir. 1977).   Although a  plausible

argument might be made for extending those cases beyond their

facts,  the  arbitrator found  as a  matter  of fact  that no

promise   to   slate   the   Local's   candidate   for    the

International's  board elections had  been made as  a part of

the  Affiliation Agreement, and that refusal to do so was not

in retaliation for the  Local's "union democracy" activities.

We  may  not  second  guess   the  factual  findings  of  the

arbitrator.  See Paperworkers Int'l Union v. Misco, Inc., 484                                                                    

U.S.  29 (1987).  In Misco, the Supreme Court counselled that                                      

it  is "the arbitrator's  view of the  facts . .  . that [the

parties have]  agreed to accept"  and that "[c]ourts  thus do

not  sit to  hear  claims  of  factual  . .  .  error  by  an

arbitrator as an appellate  court does in reviewing decisions

of lower courts."   Id. at 37-38.  The  factual predicate for                                   

the  Local's argument  was  explicitly found  wanting by  the

arbitrator.   Absent  such a  factual predicate,  we may  not

reach the legal claims.

                             -13-                                          13

          The Local next  argues that the arbitrator's  award

violates LMRDA   101(a)(4), which provides as follows:

          Protection  of  right  to sue.--No  labor
          organization shall limit the right of any
          member  thereof to institute an action in
          any court, or in a  proceeding before any
          administrative  agency,  irrespective  of
          whether  or not the labor organization or
          its officers  are named as  defendants or
          respondents in such action or proceeding 
          . . .

29 U.S.C.   411(a)(4).

          During the negotiations mandated by the arbitrator,

the  International,  according  to  the  Local,  refused   to

negotiate  over  a reduction  in  or  a reasonable  repayment

schedule for  the per capita  taxes or a  waiver of  the late

fees,  unless the  Local arranged for  the withdrawal  of the

O'Neil lawsuit  that its members had  brought in Connecticut.                  

The  Local  argues that  the  International,  by conditioning

negotiations  on the  Local  securing the  withdrawal of  its

members' lawsuit,  violated the "right to  sue" guaranteed to

union members by LMRDA   101(a)(4).

          The  arbitrator refused  to consider  the  issue of

whether  the International had violated the "right to sue" of

the Local's members.  He said that the O'Neil lawsuit was not                                                         

before him.  The  legal question, however, has nothing  to do

with the  O'Neil litigation  itself.   Instead, the  issue is                            

whether  the  International, in  refusing  to  do other  than

extract its maximum  recovery  unless  the Local secured  the

                             -14-                                          14

withdrawal  of  its members'  lawsuit, violated  the members'

"right  to  sue."7     Two  distinct  issues  are  presented:

payment of the per capita taxes and payment of the late fee. 

          The per  capita taxes paid by the  local unions are

the  means by  which the  International funds  its existence.

The  Local makes  no  claim that  the  per capita  taxes  are

usually  waived,  reduced, or  rescheduled.    Since the  per

capita taxes  are payments that the  International expects to

collect  in  full  as a  matter  of  course,  the failure  to

                                                    

7.        There   is   clear   evidence  in   the   form   of
correspondence  between  the   International  and  the  Local
showing the International's unwillingness  to waive or reduce
the payments  owed, unless the O'Neil  lawsuit was withdrawn.                                                 
The arbitrator, however, made no findings on whether this was
so and on the issue  of whether conditioning negotiations  on
the   Local  securing  withdrawal   of  a   member's  lawsuit
constitutedan  interference with a member's "right to sue."  
          In addition, an issue mentioned in passing, but not
squarely argued  by the International, is  whether this Court
may  consider  the evidence  of  the International's  conduct
during  settlement  negotiations.   But  issues  not squarely
raised  by the parties are  waived. See Grella  v. Salem Five                                                                         
Cent Savings Bank, 42  F.3d 26, 36 (1st Cir.  1994) (argument                             
raised by way of "cursory footnote" deemed waived).  There is
much law, in any  event, to support admissibility.   See NLRB                                                                         
v. Gotham Indus., Inc.,  406 F.2d 1306, 1313 (1st  Cir. 1969)                                  
(statements  made during  the course  of a  labor negotiation
that are the basis for a charge of unfair labor practices are
admissible on the  trial of  that issue); see  also Urico  v.                                                                     
Parnell  Oil Co., 708 F.2d 852, 854 (1st Cir. 1983) (evidence                            
of  settlement  negotiations is  admissible  to  show that  a
wrongful  refusal  to  make  a  reasonable  settlement  offer
prevented  the   plaintiffs  from  being  able   to  mitigate
damages); Overseas  Motors, Inc.  v. Import Motors  Ltd., 375                                                                    
F.Supp.  499, 537  (E.D.  Mich. 1974)("[I]t  would also  seem
reasonable  to  admit  such  evidence  where  the  settlement
negotiations  are themselves  subjects of  the lawsuit--i.e.,
operative  facts"), aff'd,  519  F.2d 119  (6th Cir.),  cert.                                                                         
denied, 423 U.S. 987 (1975).                       

                             -15-                                          15

negotiate over reducing or  rescheduling them cannot on these

facts be said to be a "penalty" on the "right to sue."  

          The late fee is a different matter.  The 2% a month

late  fee is at a  rate many states  consider usurious8. When

compounded monthly,  the annual  rate works  out to  26.82% a

year and adds up here to $500,000 -- approximately a third of

the actual principal  payment.  Further, the evidence is that

late fees are routinely waived by the International, and even

when  assessed, the  fees  are  typically  small.9    In  the

context  of the high rate  charged and the  routine waiver of

late  fees in other cases, conditioning a waiver on the Local

securing  withdrawal  of  its   members'  lawsuit  may  be  a

deterrent  to members suing.   "If a union  member's right to

sue is to  have any meaning, courts must be  ever vigilant in

protecting that right against  indirect and subtle devices as

well as against direct and obvious limitations."  Phillips v.                                                                      

International Ass'n  of Bridge  Workers, Local 118,  556 F.2d                                                              

939, 942  (9th Cir.  1977); see also  Moore v.  Local 569  of                                                                         

                                                    

8.       For  example, the rate  above which interest charges
constitute  usury in Massachusetts is 20%.  See Mass. Gen. L.                                                           
ch.  271,    49;  Begelfer v.  Najarian,  381 Mass.  177, 182                                                   
(1980);  see also Eric A. Posner, Contract Law in the Welfare                                                                         
State:  A Defense  of  the Unconscionability  Doctrine, Usury                                                                         
Laws, and Related Limitations on the Freedom  To Contract, 24                                                                     
J. Legal Stud. 283, 313 (1995) (presenting a short history of
the development of usury laws).    

9.        Evidence pointed to by the International itself, to
show how it regularly assesses and collects late  fees, shows
that  other than  in  this case,  all  the late  fees  it has
assessed have been for amounts lower than $1,000. 

                             -16-                                          16

Int'l.  Bhd. of Elec. Workers,  53 F.3d 1054,  1056 (9th Cir.                                         

1995) ("The employee  bill of rights protection is  worded in

the  most  inclusive terms,  which  are  clearly intended  to

preclude restraints upon members'  rights to seek relief from

courts and agencies."), petition for cert. filed, 64 U.S.L.W.                                                            

3271 (Sep. 20, 1995).  If enforcement of the late fee portion

of  the arbitrator's award was  in retaliation for the filing

of  the  O'Neil  lawsuit,   that  would  arguably  violate                              

101(a)(4)'s prohibition against a union obstructing the right

of  its members to sue.  The arbitrator failed to conduct any

factfinding on this issue.  Hence we vacate the award of late

fees and remand this issue to the district court to send back

to the arbitrator  for factfinding and  decision.  See  Labor                                                                         

Relations Div. of Constr.  Industries v. International Bhd of                                                                         

Teamsters,  Local No. 379, 29  F.3d 742, 749  (1st Cir. 1994)                                     

(case involving fact-intensive  factor balancing remanded  to

district court with instructions that  it be remanded to  the

arbitrator for initial determination).

          The International  argues that there was no penalty

on the members' right to  sue because in this case, the  late

fees  were imposed before the  O'Neil suit was  brought.  The                                                 

International's distinction, however,  is evanescent.  It  is

not the imposition of the late fees that is at issue, but the

subsequent  refusal to grant a  waiver of those  late fees as                      

                             -17-                                          17

the  International  usually has  done,  unless  the suit  was

withdrawn.10          Rulings on Motions                                                    

          The Local  argues that the district  court erred in

granting the International's motion to compel arbitration and

in  not granting  both the  Local's motion  to have  the case

transferred to Connecticut for  consolidation with the O'Neil                                                                         

case and its motion to stay the Massachusetts action.  

          There  was  no error  in  compelling  the Local  to

arbitration.   To the extent  that the Local  is arguing that

there  was no need to order it  to arbitration as it would go

voluntarily, the  district court  could  reasonably think  an

order necessary in light of  the motion to enjoin arbitration

filed by the Local in the Connecticut action.  

          The  district court's  rulings  on  the motions  to

transfer and  stay are reviewed  for an abuse  of discretion.

See Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st                                                    

                                                    

10.       The  International  also  argues  that    101(a)(4)
protects  the rights of "members" to sue, and that that right
does not extend to the Local as an  organization.  The Local,
however, is  not asserting its own right  to sue, but that of
its members.   The Local  appears to  meet the  three-pronged
test for associational standing set out in Hunt v. Washington                                                                         
State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). See                                                                         
International   Union,   United   Automobile,   Aerospace   &amp;                                                                         
Agricultural Implement  Workers v.  Brock, 477 U.S.  274, 282                                                     
(1986) (holding that union has  standing to assert rights  of
members where Hunt test is satisfied); United States v. Local                                                                         
560 (I.B.T.),  974 F.2d  315, 339-42 (3d  Cir. 1992)(applying                        
the test of  organizational standing to sue to the  case of a
Local asserting the rights  of its members under  the LMRDA);
see  also American Postal Workers Union v. M. Frank, 968 F.2d                                                               
1373, 1375 (1st Cir. 1992);

                             -18-                                          18

Cir. 1987); Chrysler Credit Corp. v. Marino, 63 F.3d 574, 578                                                       

(7th  Cir. 1995).    The district  court  did not  abuse  its

discretion  in denying  the Local's  motions to  transfer the

action or to stay it.  The Massachusetts suit dealt  with the

distinct issue of the  parties' conduct under the Affiliation

Agreement.   The Connecticut  action dealt with  the separate

issue of whether  the Local's members needed to have ratified

the Affiliation Agreement.  In the interests  of dealing with

matters before  it in  a timely  manner,  the district  court

denied the stay, and was well within its bounds in doing so.

          Accordingly, the  late fee portion of  the award is                                                                         

vacated  and remanded to the district court to be remanded to                                                                         

the arbitrator.  The district court's judgment is affirmed in                                                                         

all other respects.  The International's motion for sanctions                                                                         

against the Local, for filing a frivolous appeal,  is denied.                                                                         

No costs are awarded.                                     

                             -19-                                          19
