Division 580, Amalgamated Transit Union, AFL-CIO v. Central New York Regional Transp. Authority

Citation578 F.2d 29
Decision Date07 June 1978
Docket NumberAFL-CI,No. 639,A,D,639
Parties98 L.R.R.M. (BNA) 2750 DIVISION 580, AMALGAMATED TRANSIT UNION,ppellant, v. CENTRAL NEW YORK REGIONAL TRANSPORTATION AUTHORITY et al., Appellees. ocket 77-7546.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Jules L. Smith, Syracuse, N. Y. (Blitman & King, Bernard T. King, James R. LaVaute, Syracuse, N. Y., and Earle W. Putnam, Gen. Counsel, Amalgamated Transit Union, Washington, D. C., on the brief), for appellant.

Joseph S. Kaufman, Baltimore, Md. (Melnicove, Kaufman & Weiner, P. A., D. Christopher Ohly, Baltimore, Md., Axenfeld, Webb, Marshall, Bersani & Scolaro and Barry M. Shulman, Syracuse, N. Y., on the brief), for appellees.

Before LUMBARD, TIMBERS and GURFEIN, Circuit Judges.

LUMBARD, Circuit Judge:

This appeal from an order of the Northern District of New York, Port, J., raises the question what is the proper forum for determining when section 13(c) of the Urban Mass Transportation Act of 1964 ("UMTA"), 49 U.S.C. § 1609(c), requires that affected employers and unions agree to compulsory interest arbitration of the terms of a new collective bargaining agreement. Judge Port dismissed the suit of Division 580 of the Amalgamated Transit Union ("the Union") seeking an order compelling the Central New York Regional Transportation Authority ("the Authority") to engage in such arbitration, holding that a federal court lacked the jurisdiction to entertain such a suit. Because the parties, since oral argument of the appeal from that order, have agreed on the terms of a collective bargaining agreement for the period of November 1, 1976, through November 1, 1978, and have executed that agreement, we rule that the dispute is moot, and we vacate and remand to the district court with instructions to dismiss as moot. 1

I

In passing UMTA, Congress was primarily interested in assisting in the development and improvement of urban mass transportation facilities. See H.Rep.No.204, 88th Cong., 2d sess. 2569 (1963), U.S.Code Cong. & Admin.News 1964, p. 2569. UMTA provided that state or local governmental units could apply for and receive federal grants to be used for the purchase of privately owned transit facilities. Congress was also concerned, however, to ensure that the employees of the purchased companies not lose their collective bargaining rights by virtue of having become public employees. 2 Accordingly section 13(c) was adopted, making it a condition of grants under UMTA that the public employer have entered into an agreement ("the 13(c) agreement") with representatives of the employees of the purchased company, satisfactory to the Secretary of Labor, which guaranteed the preservation of all existing collective bargaining rights of those employees. See 88 Cong.Rec. 14,937 (daily ed. June 30, 1964) (analysis of UMTA by Sen. Morse). The present dispute between the parties concerns just such a 13(c) agreement.

The Authority was created by New York in 1970 to take advantage of the opportunities afforded by UMTA to purchase private transit companies. 3 Since then, the Authority has received some $13 million in UMTA grants; it has also entered into 13(c) agreements with the Union in connection with each application for such a grant. The agreement that forms the basis of the instant appeal was entered into on March 11, 1975. It included an agreement by the Authority and the Union to submit to interest arbitration

any labor dispute where collective bargaining does not result in agreement . . . . The term "labor dispute" shall be broadly construed and shall include any controversy concerning . . . the making or maintenance of collective bargaining agreements (and) the terms to be included in such agreements . . . .

The grant contract between the United States and the Authority incorporated this 13(c) agreement, with its provision for compulsory interest arbitration of the terms of a new collective bargaining agreement; the existing collective bargaining agreement under which the employees belonging to the Union were working provided for arbitration of some disputes, but not of the terms of a new collective bargaining agreement should the parties be otherwise unable to come to terms. 4

When the existing collective bargaining agreement between the parties expired on November 1, 1976, the parties were at an impasse with respect to a new agreement. The Union sought to invoke the arbitration provision of the 13(c) agreement, but the Authority declined to go to arbitration, noting that the expired collective bargaining agreement had not required arbitration, and relying on section 209 of New York's Taylor Law, N.Y. Civil Service Law § 209, to provide an impasse-breaking procedure. 5

The Union filed suit in the Northern District, alleging that UMTA required that the provisions of the 13(c) agreement, as incorporated into the grant contract, take precedence over the terms of the prior collective bargaining agreement, and that compulsory arbitration was thus part of the Union's contract. 6 The Union's motion for a preliminary injunction was denied, and we affirmed that denial; Division 580, Amalgamated Transit Union v. Central New York Regional Transp. Authority, 556 F.2d 659 (2d Cir. 1977). Then, on October 19, 1977, Judge Port dismissed the suit orally for lack of subject matter jurisdiction. 7

The appeal from this order was argued on February 16, 1978. On April 24, we were notified by counsel for the Union that the parties had reached oral agreement on terms of a collective bargaining agreement for the period through November 1, 1978; on April 26, the same counsel confirmed to us that the parties had, in fact, executed such an agreement. One day later, counsel for the Authority filed a motion to dismiss the appeal on the ground of mootness. The Union filed its opposition to the motion on May 8.

II

When, as here, the conduct of some governmental unit is challenged, and the conduct ceases to effect the challenger before his claim has been determined, then one set of factors on which the question of mootness may turn concerns whether the government action is "capable of repetition, yet evading review." See, e. g., First National Bank v. Bellotti, --- U.S. ----, ----, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). We rule that no exception to mootness has been established here under that standard.

The requirements for such an exception are: 1) that the challenged action have been in its duration too short to be fully litigated prior to its cessation or expiration; and 2) that there be a reasonable expectation that the same complaining party will be subjected to the same action again. Id. While the challenged action here the Authority's refusal to arbitrate is certainly capable of repetition in a way in which the government action in DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), was not, still it is far from obvious that the Union will be subjected to the same action again. See Part III infra.

More compelling in this context is the fact that the question herein is not necessarily one evading review. Perhaps the archetypal example of such a claim was that in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973): a baby must be born in nine months, more or less. Similarly, in Bellotti, supra, it was clear that an election would always have to be held within a certain and fairly short period after a referendum had been announced. There are not similar grounds for believing that the union and employer in an UMTA § 13(c) dispute will always be able to agree on terms of a new collective bargaining agreement before the § 13(c) question can be litigated, decided and reviewed. Indeed, it took the parties here some two months from the time the appeal was argued to reach agreement; other parties might well be more stubborn, particularly if, as the Union asserts, the question whether the Taylor Law or interest arbitration is the appropriate method of breaking an impasse is a highly emotion-charged issue. Even should the issue arise again between these same parties, there is a distinct possibility that their continued disagreement would be enduring enough to permit review the next time around.

III

We also reject a second possible exception to a finding of mootness. This exception arises from the case of Super Tire Engineering Co. v. McCorckle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), which created a doctrine, apparently peculiar to labor questions, that governs the determination of mootness when parties agree on a new contract during the pendency of a suit. In Super Tire, New Jersey had a practice of granting public assistance benefits to strikers, who became automatically entitled to the benefits in the case of a work stoppage. This practice was challenged as unconstitutional by employers. Though the parties had already settled the strike that had occasioned the litigation, the Court held that the challenged government activity, "by its continuing and brooding presence," id. at 122, 94 S.Ct. at 1698, cast a pall on the collective bargaining relationship, and had a substantial adverse effect on the parties' interests. Accordingly, the case was held not to be moot.

To some extent, the factors that were present in Super Tire are also present here; the § 13(c) question undoubtedly "affects every existing collective-bargaining agreement and is a factor lurking in the background of every incipient labor contract," id. at 124, 94 S.Ct. at 1699. Nonetheless, we note that the Court was careful to distinguish cases such as Harris v. Battle, 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634 (1954), in which the action challenged would not recur unless 1) there were another labor-management disagreement, and 2) the government chose, in its discretion (not automatically, as in Super Tire ), to apply the challenged policy. "The question (in such a case is) posed in a situation where the threat of governmental action (is)...

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