Boston Teachers Union, Local 66, AFT, AFL-CIO v. Edgar

• Decision Date: 27 March 1986
• Docket Number: P,85-1632,Nos. 85-1589,AFL-CI,s. 85-1589
• Citation: 787 F.2d 12
• Parties: 121 L.R.R.M. (BNA) 3356, 31 Ed. Law Rep. 393 BOSTON TEACHERS UNION, LOCAL 66, AFT,laintiff, Appellant, v. Paul T. EDGAR, et al., Defendants, Appellees. BOSTON TEACHERS UNION, LOCAL 66, AFT,laintiffs, Appellees, v. Paul T. EDGAR, et al., Defendants, Appellees. Appeal of SCHOOL COMMITTEE OF the CITY OF BOSTON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 12

787 F.2d 12

121 L.R.R.M. (BNA) 3356, 31 Ed. Law Rep. 393

BOSTON TEACHERS UNION, LOCAL 66, AFT, AFL-CIO, Plaintiff, Appellant, v. Paul T. EDGAR, et al., Defendants, Appellees.

BOSTON TEACHERS UNION, LOCAL 66, AFT, AFL-CIO, Plaintiffs, Appellees, v. Paul T. EDGAR, et al., Defendants, Appellees.

Appeal of SCHOOL COMMITTEE OF the CITY OF BOSTON, Defendant,

Appellant.

Nos. 85-1589, 85-1632.

United States Court of Appeals First Circuit.

Argued Dec. 5, 1985.

Decided March 27, 1986.

James T. Grady with whom Kevin Hern, Jr. and Grady, Dumont & Dwyer, Boston, Mass., were on brief, for Boston Teachers Union.

Marien Evans, Boston, Mass., for Boston School Committee.

William L. Pardee, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for Com'rs of Mass. Labor Relations Com'n.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

The Boston Teachers Union, Local 66, AFT, AFL-CIO (the "Union"), brought an action against the Boston School Committee and the Commissioners of the Massachusetts Labor Relations Commission seeking a declaration that the provisions of Mass.Gen.Laws ch. 150E, Sec. 9A (1984), which prohibits public employees and their unions from inducing, encouraging, or condoning a strike, violate the first amendment. Finding there was no longer a "live" controversy between the parties, the United States District Court for the District of Massachusetts dismissed the Union's complaint as moot. The Union and the School Committee appeal from the district court's order.

I.

Plaintiff-appellant Union represents some 5,000 teachers and aides employed in the City of Boston's public school system by the Boston School Committee. As the certified bargaining representative for public employees, the Union's collective bargaining relationship is governed by the Masachusetts Public Employee Labor Relations Law, Mass.Gen.Laws ch. 150E, Sec. 1 et seq. (the "Act") (1984). Defendant-appellee the Massachusetts Labor Relations Commission (the "Commission") is the state agency charged with administering and enforcing the Act.

The statute under challenge is section 9A of the Act which consists of two parts. Paragraph (a) prohibits public employees and their organizations from engaging in a strike, and provides further that,

no public employee or employee organization shall induce, encourage or condone any strike, work stoppage, slowdown or withholding of services by such public employees.

In paragraph (b), the Commission is directed to prevent or correct violations of paragraph (a) as follows:

Whenever a strike occurs or is about to occur, the employer shall petition the commission to make an investigation. If, after investigation, the commission determines that any provision of paragraph (a) of this section has been or is about to be violated, it shall immediately set requirements that must be complied with, including, but not limited to, instituting appropriate proceedings in the superior court for the county wherein such violation has occurred or is about to occur for enforcement of such requirements.

The events leading to the bringing of this action began in the fall of 1983. During negotiations between the Union and the School Committee for a new contract, Union officials stated publicly that they would recommend that the Union membership vote on December 14, 1983, to conduct a one-day strike on December 15 unless there was "significant progress" in the negotiations. These statements caused the School Committee to petition the Commission on December 13, 1983, for a "strike investigation" pursuant to section 9A(b), asserting that a strike, prohibited under section 9A(a), was "about to occur." ¹

The Commission convened an "investigation" on the morning of December 14, but adjourned until 7:00 p.m., when the results of the Union's membership meeting would be known. When the membership voted not to strike, the 7:00 p.m. investigation meeting was cancelled. On the basis of its vote not to strike, the Union moved to dismiss the petition filed by the School Committee, presenting the same constitutional objections to the statute raised here. The Commission, however, retained jurisdiction over the strike investigation, at the request of the School Committee, since contract negotiations were continuing.

On December 23, 1983, the Union brought this action seeking, inter alia, a declaration that Mass.Gen.Laws ch. 150E, Sec. 9A, both on its face and as applied, is unconstitutional. ² The Union alleged that section 9A(a), insofar as it prohibits public employees from inducing, encouraging or condoning a strike, is vague and overbroad in violation of the first amendment. The Union further asserted that section 9A(b) amounts to an unlawful prior restraint of speech and assembly, because the Commission's power to impose "requirements" when it determines a strike "is about to occur" inhibits the Union and its members from considering, discussing or voting upon the question whether to strike. The Union did not, however, contest the constitutionality of the prohibition against striking itself.

On January 12, 1984, one day after service of the Union's complaint, the Commission formally dismissed the School Committee's petition for a strike investigation. Sometime between December 15, 1983, and July 9, 1984, the Union ratified a new collective bargaining agreement with the School Committee which will be in effect until August 31, 1986.

The Commissioners moved on June 15, 1984, for dismissal of the Union's suit on grounds of mootness or, alternatively, for summary judgment. After various other events not material here, the district court issued an order on July 9, 1985, denying the cross-motions for summary judgment by the Union and the School Committee, and dismissing the case as to all parties on grounds of mootness. The cross-appeals by the Union and the School Committee have been consolidated.

II.

The only issue is whether there is now an actual "case or controversy" within the meaning of Article III of the Constitution, or whether, as the district court held, the case is moot and thus no longer justiciable. See Sosna v. Iowa, 419 U.S. 393, 397-403, 95 S.Ct. 553, 556-59, 42 L.Ed.2d 532 (1975). Where declaratory relief is sought, plaintiff must show that there is a substantial controversy over present rights of "sufficient immediacy and reality" requiring adjudication. Preiser v. Newkirk, 422 U.S. 395, 402, 95 S.Ct. 2330, 2334-35, 45 L.Ed.2d 272 (1975); Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 242, 57 S.Ct. 461, 464-65, 81 L.Ed. 617 (1937). "[W]hen the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome," the case is moot. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51, 23 L.Ed.2d 491 (1969)). We agree with the district court that this case is moot.

Assuming there was once a "live" controversy between the Union and the Commission, ³ it ended when the Commission dismissed the School Committee's petition for a strike investigation, removing any possibility that the Commission could issue a coercive order against the Union under the challenged state law. A new collective bargaining agreement was thereafter negotiated, and the labor dispute that had given rise to the strike threat and to the School Committee's petition ended. Thus, the district court, if it had reviewed the constitutionality of section 9A, would have been rendering a purely advisory opinion based on hypothetical facts, forbidden by Article III and the Federal Declaratory Judgments Act, 28 U.S.C. Sec. 2201 (1982), rather than adjudicating present rights on established facts. See Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979); McCollester v. City of Keene, 668 F.2d 617, 619-20 (1st Cir.1982).

The Union argues that the case nonetheless fell into either of two established exceptions to the mootness doctrine. First, the Union contends that its claims should not be considered moot since the Commission voluntarily ceased its allegedly illegal conduct, thereby eliminating the live dispute between the parties. See United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953). The Union also argues that the case is not moot because the events involved are "capable of repetition yet evading review." See, e.g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973) (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911)). We find no merit in plaintiff's reliance on these two exceptions, for reasons we now discuss.

A. Voluntary Cessation

Under this exception, generally, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." ⁴ W.T. Grant, 345 U.S. at 632, 73 S.Ct. at 897; see also City of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). This exception is meant to prevent defendants from defeating a plaintiff's efforts to have its claims adjudicated simply by stopping their challenged actions, and then resuming their "old ways" once the case became moot. 345 U.S. at 632, 73 S.Ct. at 897; see also Vitek v. Jones, 445 U.S. 480, 503, 100 S.Ct. 1254, 1269, 63 L.Ed.2d 552 (1980) (Blackmun, J., dissenting). Here the Union contends that the Commission, by dismissing the petition for a strike investigation when it did, voluntarily ceased its allegedly illegal conduct, and in doing so deprived the Union of the opportunity to litigate its constitutional claims before they became moot.

We agree with the district court, however, that the Commission's dismissal of the petition on January 12, 1984, does not qualify as a ...