Utility Contractors Ass'n of New England, Inc. v. Department of Public Works, s. 90-P-921

Decision Date18 January 1991
Docket NumberNos. 90-P-921,90-P-1062,s. 90-P-921
Citation565 N.E.2d 459,29 Mass.App.Ct. 726
PartiesUTILITY CONTRACTORS ASSOCIATION OF NEW ENGLAND, INC. v. DEPARTMENT OF PUBLIC WORKS.
CourtAppeals Court of Massachusetts

Gerald K. Kelley, Asst. Atty. Gen., for the Dept. of Public works.

Robert W. Kopp of Syracuse, N.Y. (Dianne R. Phillips with him), for Bechtel Corp./Parsons Brinckerhoff, Quade & Douglas, Inc., amicus curiae.

Donald J. Siegel, Boston, for Building Trades Council of the Metropolitan Dist., amicus curiae.

Richard D. Wayne, Boston, for plaintiff.

John M. Stevens & Arthur G. Telegen, Boston, for Massachusetts Water Resources Authority, amicus curiae, submitted a brief.

Before WARNER, C.J., and ARMSTRONG and LAURENCE, JJ.

WARNER, Chief Justice.

These are the consolidated appeals 1 of the Utility Contractors Association of New England, Inc. (UCANE), pursuant to G.L. c. 231, § 118, second par., from the denial of its request for a preliminary injunction, and Bechtel Corporation/Parsons Brinckerhoff, Quade & Douglas, Inc. (Bechtel/Parsons) and The Building Trades Council of the Metropolitan District (Trades Council) from the denial of their motions to intervene under Mass.R.Civ.P. 24(a)(2) and 24(b)(2). 2

Background. On May 23, 1990, UCANE, an organization comprised of contractors and others involved in the public construction industry in Massachusetts, brought an action for declaratory judgment in the Superior Court. G.L. c. 231A. UCANE challenged the legality of a bid specification which the Department of Public Works (DPW) intended to implement to carry out the eight- to ten-year and over four billion dollar public works project (largely Federally funded) known as the Central Artery/Third Harbor Tunnel Project (CAP). The DPW planned to require contractors to execute a project labor agreement, a form of collective bargaining agreement (Agreement), previously negotiated by Bechtel/Parsons, DPW's construction manager for the CAP, and the Trades Council, an organization comprised of twenty-four different building trade unions representing construction workers in the Boston area, as a condition for acceptance of their bids. 3 Such agreements are used to deal with the complexities of major construction projects and typically include standardization of working conditions and mechanisms for resolving disputes without interruption of work. Among its extensive provisions, the Agreement required contractors to utilize union hiring halls as a primary source of labor and to recognize local unions as exclusive bargaining agents for craft employees working on the CAP. The Agreement also contained a broad no-strike clause. Both union and non-union contractors were eligible to bid under the Agreement.

UCANE attacked the proposed bid specification on numerous State constitutional and statutory grounds. It asserted, among other things, violations of contractors' and their employees' rights as protected by arts. 1, 10 and 12 of the Declaration of Rights of the Massachusetts Constitution, violations of State public bidding and labor laws 4, and violation of the Massachusetts Civil Rights Act, G.L. c. 12, §§ 11H & 11I. UCANE sought injunctive relief, a judgment declaring the proposed bid specification illegal and unenforceable, and costs, interest and attorneys' fees. Bechtel/Parsons and the Trades Council moved to intervene as defendants.

On October 24, 1990, while these appeals were pending, the United States Court of Appeals for the First Circuit held that an analogous bid specification issued by the Massachusetts Water Resources Authority (MWRA), which required that contractors working on the Boston Harbor Cleanup Project execute a collective bargaining agreement previously negotiated by MWRA's project manager and the Trades Council, was preempted by Federal labor policy. Associated Builders and Contractors of Mass./R.I., Inc. v. Massachusetts Water Resources Authy., No. 90-1392 (1st Cir. Oct. 24, 1990). The DPW, in an affidavit of its project director, William V. Twomey, now states that it will not issue the contested bid specification. 5

The DPW contends that its current statement of intention renders these appeals moot. It has moved for an indefinite stay of UCANE's appeal, rather than for dismissal, because of the possibility that a justiciable controversy may arise in the future. A petition for a rehearing en banc has been granted (January 3, 1991) by the Court of Appeals in the MWRA case, 6 and, according to the DPW, the MWRA and the unions will seek a writ of certiorari to the United States Supreme Court if the First Circuit's decision stands. The DPW may again consider issuing the contested bid specification if the First Circuit's decision is overturned or substantially modified. 7

Mootness. The DPW's representation that it does not intend to issue the contested bid specification has rendered UCANE's appeal from the denial of a preliminary injunction moot. There is presently nothing to enjoin. See Vigoda v. Superintendent of Boston State Hosp., 336 Mass. 724, 725, 147 N.E.2d 794 (1958) (hospital's restoration of petitioner to his former position as a psychiatric social worker mooted controversy over his dismissal from that position); Massachusetts Bay Transp. Authy. v. Local 589, Amalgamated Transit Union, 406 Mass. 36, 546 N.E.2d 135 (1989) (union's claim for injunctive relief was moot because the MBTA stopped implementing the contested affirmative action plan); Morgan v. Stoughton, 18 Mass.App.Ct. 977, 979, 470 N.E.2d 139 (1984) (no present need for injunctive relief where board of selectmen agreed not to enforce suspension of plaintiff's entertainment license pending the completion of ongoing judicial proceedings). UCANE contends that we should nevertheless decide its appeal because the DPW may issue the challenged specification at some future time.

Under certain circumstances, our appellate courts will address moot questions. "[W]e have on occasion answered questions in moot cases where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot." Lockhart v. Attorney Gen., 390 Mass. 780, 783, 459 N.E.2d 813 (1984), and cases cited. This case concerns issues of public importance and has been fully briefed. The possibility that a justiciable controversy will arise between these parties in the future is, however, merely speculative. Changes in the governing law, underlying conditions or procedure might give rise to different controversies or to none. It would be a waste of judicial resources for this court to decide the questions presented in these appeals where "the factual underpinnings of the dispute ... are likely to so change as to make ... [a] decision 'a useless and inappropriate exercise.' " Lockhart v. Attorney Gen., supra at 784, 459 N.E.2d 813, quoting from Reilly v. School Comm. of Boston, 362 Mass. 689, 693, 290 N.E.2d 516 (1972). In short, "the total situation is too unstable for a declaration." Reilly v. School Comm. of Boston, supra at 694, 290 N.E.2d 516. Nor does this case present the type of controversy which is likely to arise again and evade review. Contrast Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298-300, 327 N.E.2d 885 (1975); Adoption of Emily, 25 Mass.App.Ct. 579, 580 n. 1, 521 N.E.2d 399 (1988), and cases cited; Umina v. Malbica, 27 Mass.App.Ct. 351, 354, 538 N.E.2d 53 (1989).

Proposed interveners' appeal. The proposed interveners have supported the DPW's motion for an indefinite stay and have moved for an indefinite stay of their appeals in the event that the DPW's request is granted. At oral argument, both interveners pressed for outright dismissal of all appeals. The withdrawal of the plan to issue the contested bid specification obviates the proposed interveners' asserted interest in this action--to defend the legality of requiring CAP contractors to be bound by the Agreement--and, for the reasons we have discussed, dismissal of these appeals is the appropriate disposition.

The Massachusetts Civil Rights Act claim. 8 UCANE contends that, by announcing its intent to issue the contested bid specification, the DPW has violated UCANE's rights under the Massachusetts Civil Rights Act (MCRA), thereby entitling UCANE to...

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