Appeal from order of the Northern District of New York, Port, Judge, dismissing for lack of jurisdiction union's suit to compel arbitration.
Lumbard, Timbers and Gurfein, Circuit Judges.
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.*fn1
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). 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.*fn2 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.*fn3 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.*fn4
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.*fn5
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.*fn6 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.*fn7
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.
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, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. ...