Massachusetts v. Labor Relations

Court of Appeals for the First Circuit·Decided April 29, 1994·No. 93-1565·Published

Opinion

USCA1 Opinion

April 29, 1994 [Not for Publication]
[Not for Publication]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 93-1565

MASSACHUSETTS LABORERS' DISTRICT COUNCIL,

Plaintiff, Appellant,

v.

LABOR RELATIONS DIVISION OF CONSTRUCTION
INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]
___________________

____________________

Before

Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Paul F. Kelly with whom Shelley B. Kroll and Segal, Roitman &
______________ _________________ _________________
Coleman were on brief for appellant.
_______
John D. O'Reilly, III with whom O'Reilly & Grosso was on brief
_______________________ _________________
for appellee.

____________________

____________________

Per Curiam. Plaintiff-appellant, Massachusetts
Per Curiam.
___________

Laborers' District Council (Laborers), and defendant-

appellee, Labor Relations Division of Construction Industries

of Massachusetts (CIM), a contractor trade association, are

parties to a collective bargaining agreement containing a

provision to arbitrate unresolved grievances. Cardi

Corporation (Cardi), a general contractor and a member of

(CIM), was a signatory to that agreement. Plaintiff claims

that Cardi violated the agreement in two separate instances,

on one occasion by subcontracting work to a subcontractor who

used members of the Ironworkers' Union to perform work that

Laborers felt belonged to its members, and then by assigning

work on another of its jobs to members of the Carpenters'

Union rather than to members of the local Laborers affiliate.

After the disputes remained unresolved, Laborers

sought a court order requiring that the two disputes be

arbitrated in accordance with the bilateral arbitration

clause contained in the Collective Bargaining Agreement.

Ultimately, the district court ordered the disputing parties

to engage in tripartite arbitration with regard to each of

the separate work-related disputes. That order was complied

with, and eventually one of the disputes was dropped and the

other settled during arbitration proceedings.

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2

After notifying the court of the resolution of

these disputes, Laborers, in essence, continued to contend

that the court had erred when it ordered tripartite

arbitration. Notwithstanding that contention, the district

court, on being advised of the dispositions of the underlying

disputes, dismissed the action as moot. Laborers took a

timely appeal from that dismissal. We affirm.

A federal court's jurisdiction to determine

disputes is limited by the strictures of Article III of the

Constitution to the resolution of "real and substantial

controvers[ies] admitting of specific relief through a decree

of a conclusive nature, as distinguished from an opinion

advising what the law would be upon a hypothetical state of

facts." Lewis v. Continental Bank Corp., 494 U.S. 472, 477
_____ ______________________

(1990) (citations omitted). Thus, as we said in another case

involving the "case or controversy" requirement:

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 (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 (1975); Aetna
_______ _____
Life Ins. Co. v. Howorth, 300 U.S. 227,
______________ _______
242 (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
__________

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3

Los Angeles v. Davis, 440 U.S. 625, 631
___________ _____
(1979) (quoting Powell v. McCormack, 395
______ _________
U.S. 486, 496 (1969)).

Boston Teachers Union v. Edgar, 787 F.2d 12, 15-16 (1st Cir.
______________________ _____

1986). We agree with the district court that this case is

moot.

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USCA1 Opinion



April 29, 1994          [Not for Publication]
                                [Not for Publication]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1565

                      MASSACHUSETTS LABORERS' DISTRICT COUNCIL,

                                Plaintiff, Appellant,

                                          v.

                       LABOR RELATIONS DIVISION OF CONSTRUCTION
                      INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Paul  F. Kelly with  whom Shelley  B. Kroll  and Segal,  Roitman &
            ______________            _________________      _________________
        Coleman were on brief for appellant.
        _______
            John  D. O'Reilly,  III with whom  O'Reilly & Grosso  was on brief
            _______________________            _________________
        for appellee.

____________________

____________________

Per  Curiam.    Plaintiff-appellant,  Massachusetts
                      Per  Curiam.
                      ___________

            Laborers'   District   Council  (Laborers),   and  defendant-

            appellee, Labor Relations Division of Construction Industries

            of Massachusetts (CIM),  a contractor trade  association, are

            parties  to a  collective bargaining  agreement  containing a

            provision   to  arbitrate   unresolved  grievances.     Cardi

            Corporation  (Cardi), a  general contractor  and a  member of

            (CIM), was a signatory to  that agreement.  Plaintiff  claims

            that Cardi violated the  agreement in two separate instances,

            on one occasion by subcontracting work to a subcontractor who

            used members of  the Ironworkers' Union to perform  work that

            Laborers felt belonged to its  members, and then by assigning

            work on another  of its  jobs to members  of the  Carpenters'

            Union rather than to members of the local Laborers affiliate.

After  the  disputes remained  unresolved, Laborers

            sought a  court  order requiring  that  the two  disputes  be

            arbitrated  in  accordance  with  the  bilateral  arbitration

            clause  contained in  the  Collective  Bargaining  Agreement.

            Ultimately, the district court  ordered the disputing parties

            to engage  in tripartite arbitration  with regard to  each of

            the separate work-related disputes.   That order was complied

            with,  and eventually one of the disputes was dropped and the

            other settled during arbitration proceedings.

-2-
                                          2

After  notifying  the court  of  the  resolution of

            these  disputes, Laborers, in  essence, continued  to contend

            that  the   court  had  erred  when   it  ordered  tripartite

            arbitration.  Notwithstanding  that contention, the  district

            court, on being advised of the dispositions of the underlying

            disputes,  dismissed the  action  as moot.   Laborers  took a

            timely appeal from that dismissal.  We affirm.

                      A   federal   court's  jurisdiction   to  determine

            disputes is limited by  the strictures of Article III  of the

            Constitution  to  the  resolution  of  "real  and substantial

            controvers[ies] admitting of specific relief through a decree

            of  a conclusive  nature,  as distinguished  from an  opinion

            advising what the law  would be upon a hypothetical  state of

            facts."  Lewis v.  Continental Bank Corp., 494 U.S.  472, 477
                     _____     ______________________

            (1990) (citations omitted).  Thus, as we said in another case

            involving the "case or controversy" requirement:

                      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  (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  (1975); Aetna
                      _______                             _____
                      Life Ins.  Co. v. Howorth, 300  U.S. 227,
                      ______________    _______
                      242 (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
                                                     __________

-3-
                                          3

Los Angeles v.  Davis, 440 U.S. 625,  631
                      ___________     _____
                      (1979) (quoting Powell v.  McCormack, 395
                                      ______     _________
                      U.S. 486, 496 (1969)).  

            Boston  Teachers Union v. Edgar, 787 F.2d 12, 15-16 (1st Cir.
            ______________________    _____

            1986).  We  agree with the  district court that this  case is

            moot. 

                      It  is  beyond  question that  no  current  dispute

            exists between the  parties with regard to work assignment or

            subcontracting  practices.  The  original disputes respecting

            Cardi's  assignment and subcontracting  of work vis-a-vis all

            three unions have  been resolved.   Thus,  once the  district

            court  was  advised  of  the  resolution  of  the  underlying

            disputes, the order of  dismissal was appropriate because the

            only  relief  plaintiff  had   sought,  an  order  compelling

            arbitration, was no longer a live issue.

                      With  the settlement  of  the underlying  disputes,

            there  remained no further  justiciable case  or controversy.

            Although the  parties to  this litigation may  still disagree

            about the proper allocation of the disputed work or, for that

            matter,  whether the  district court  should have  joined all

            three  disputing unions  and ordered  tripartite arbitration,

            once  that  order issued,  and the  parties  acted on  it and

            resolved their differences,  there remained  nothing for  the

            district court to resolve.   

                      The  particular disputes  which animated  this case

            will  not occur  again although,  of course,  future disputes

-4-
                                          4

involving other  work issues  may arise between  employer and

            union.  The resolution  of those disputes will have  to await

            their occurrence.1

                      For the foregoing reasons, the order is affirmed.
                                                              ________

____________________

            1.  Plaintiff contends for the first  time in its reply brief
            that  because  this  dispute  is capable  of  repetition  and
            incapable of review, we must now decide whether the  district
            court  exceeded  its  authority  when it  ordered  tripartite
            arbitration.   The short answer to this plaint is that issues
            raised for the first time in a reply brief are deemed waived.
            Vanhaaren v.  State Farm Mutual Auto Ins.  Co., 989 F.2d 1, 7
            _________     ________________________________
            n.6 (1st Cir.  1993); Frazier  v. Bailey, 957  F.2d 920,  932
                                  _______     ______
            n.14 (1st Cir. 1992). 

                                         -5-
                                          5

Massachusetts v. Labor Relations, (1st Cir. 1994).

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Aetna Life Insurance v. Haworth

300 U.S. 227 (Supreme Court, 1937)

Sosna v. Iowa

419 U.S. 393 (Supreme Court, 1975)

Preiser v. Newkirk

422 U.S. 395 (Supreme Court, 1975)

County of Los Angeles v. Davis

440 U.S. 625 (Supreme Court, 1979)

Lewis v. Continental Bank Corp.

494 U.S. 472 (Supreme Court, 1990)

Kevin Frazier v. Edward N. Bailey

957 F.2d 920 (First Circuit, 1992)