Amicus Curiae Brief — Super Tire Engineering Co. v. McCorkle

INDEX

Interest of the Chamber of Commerce

Reasons for Granting the Writ

I. The Nature of the Problem

II. Courts’ Treatment of the Mootness Issue Has

Been Inconsistent and Affords No Effective

Guidance to Potential Litigants

A. The Differing Variables Employed by the

Courts

B. Discussion of the Variables Courts Have

Employed in Mootness Cases and an Alterna-

tive Proposal

III. There Exists An Irreconcilable Conflict Among

the Circuits as Well as Between the Circuits and

This Court’s Decisions

Conclusion

13

21

Il

AUTHORITIES CITED

Cases: Page

Almacs v. Hackett, 311 F. Supp. 964 (D.R.I.,

1970) 20

Association of Data Processing Service Organiza-

tions, Inc. v. Camp, 897 U.S. 150 ...0-..0............. 24

Bakery Sales Drivers Union v. Wagshal, 333 U.S.

487, 422 (1948) 6, 21

Barlow v. Collins, 397 U.S. 159 24

Boggess V. Berry Corp., 233 F. 2d 389, 391 (CA 9,

EFS ER SET AONE eS fe, EN a 14

Brockington v. Rhodes, 396 U.S. 41 (1969) ............. 9, 10

Campbell Soup Co. v. Martin, 202 F. 2d 398, 399,

(CA 5, 1958) 14

Carroll v. President & Commissioners of Princess

Anne County, 394 U.S. 175 (1968) ....................... 16

Commercial Cable Co. v. Burleson, 250 U.S. 360

(1919) 7

Dow Chemical Co. v. Taylor, —— F. Supp. ——,

57 F.R.D. 105 (1972) 20

Dyer v. SEC, 266 F. 2d 38, 47 (CA 8), cert. denied,

361 U.S. 835 (1959) 14

Ez Parte Baez, 177 U.S. 878 (1900) 17

Flast v. Cohen, 392 U.S. 88, 95 (1968) -................. 4, 18, 19

Francis Vv. Davidson, 340 F. Supp. 351 (D. Mich.),

aff’d per curiam, 409 U.S. 904 (1972) —............ 20

Friend v. United States, 388 F. 2d 579, 581 (CA

DC, 1967) 14

Gray Vv. Sanders, 372 U.S. 368 (1968) -..................... 8, 10

Grinell v. Hackett, —— F. 2d ——, 82 LRRM 2986

I a sattecihanli cb sittaiets astisiccgaigenseetnanrenchinibantsiamiarmenipsii 15, 20

Hall v. Beals, 396 U.S. 45 (1969) 9, 10

ITT Vv. Minter, 4385 F. 2d 989 (CA 1, 1970) _.......... 20

Local 1976, United Brotherhood of Carpenters and

Joiners, et al. v. N.L.R.B., 357 U.S. 98 -.............. 21

A. L. Mechling Barge Lines v. United States, 368

U.S. 324 (1961) 7

Moore V. Ogilvie, 394 U.S. 814 (1969) —......... 9, 10, 11, 12,

18, 14, 18

Ill

AUTHORITIES CITED—Continued

Page

N.L.R.B. v. Globe Wernicke Systems Co., 886 F. 2d

589 (CA 6, 1964) 22

N.L.R.B. v. Local 65, Carpenters Union, 318 F. 2d

419 (CA 8, 1968) 22

N.L.R.B. v. Local 182, IBT, 314 F. 2d 58 (CA 2,

1963) 22

N.L.R.B. v. March Supermarkets, Inc., 327 F. 2d

109 (CA 7, 19638) 22

N.L.R.B. v. Mexia Mills, Inc., 339 U.S. 568, 567

(1950) 6, 21

N.L.R.B. v. Plumbers Union of Nassau County,

Local 457, et al., 299 F. 2d 497 (CA 2, 1962) —_.. 22

N.L.R.B. v. Raytheon Co., 398 U.S. 25 (1970) -...... 6, 21

N.L.R.B. v. United Hatters, et al., 286 F. ed 950

(CA 4, 1961) 22

Oil Workers, Local 8-6 v. Missouri, 361 US. 3638

(1960) 6, 7, 8, 9, 10, 11, 12, 18, 17, 19, 21

Pittsburgh Newspaper Printing Pressmen’s Union

No. 9 Vv. Pittsburgh Press Co., et al., —— F. 2d

——, 83 LRRM 2349 (decided May 29, 1978) ._... 23

Russo V. Kirby, 458 F. 2d 548 (CA 7, 1971) -~.......... 20

Samoff v. IAM, Lodge No. 1, 420 F. 2d 952 (CA 8,

1969) 23

Sibron v. New York, 392 U.S. 40 (1968) .11, 12, 18, 14, 18

Singer Mfg. Co. v. Wright, 414 U.S. 696 (1968) _... ‘AT

Southern Pacific Terminal Co. v. ICC, 219 US.

498 (1911) 10,.11, 12, 14, 18

Street Employees Div. 988 Vv. Wisconsin Employ-

ment Relations Board, 340 USS. 416, 418

(1951) 14

Street Employees Div. 1287 v. Missouri, 374 U.S.

74 (1963) 7

Terminal Freight Cooperative Assn. et al. v. Solein,

440 F. 2d 124 (CA 8, 1971) 28

United States v. W. T. Grant Co., 345 U.S. 629, 623

(1953) 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 24

IV

AUTHORITIES CITED—Continued

Page

United States v. Trans-Missouri Freight Associa-

tion, 166 U.S. 290 (1897) 17, 18

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 594 (1952) 4

Miscellaneous:

Sidney A. Diamond, Federal Jurisdiction to Decide

Moot Cases, 94 U. Pa. L, Rev. 125 (1946) ............ 3,11

Jaffe, The Citizen As Litigant In Public Actions:

The Non-Hohfeldian or Ideological Plaintiff, 116

U. Pa. Rev. 1033 (1968) 16

“Moot” Administrative Orders, 53 Harv. L. Rev.

628, 630 (1940 15

Note, Cases,Moot on Appeal: A Limit on the Ju-

dicial Powér, 103 U. Pa. L. Rev. 772 (1955) ........ 3,8

Note, Moot C. on Appeal in the Supreme Court,

83 Harv. L. % §£) wea 8, 8, 12, 20, 24

United States Constitution, Article ITI, Section 2 .. 8

In THE

Supreme Court of the United States

OcToBER TERM, 1972

No. 72-1554

SUPER TIRE ENGINEERING COMPANY; SUPERCAP

CORPORATION; and A. ROBERT SCHAEVITZ,

Petitioners,

v.

LLoyD W. MCCORKLE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES IN SUPPORT OF THE PETITIONERS*

INTEREST OF THE CHAMBER OF COMMERCE

The interest of the Chamber of Commerce is set forth

at pp. 1-3 of the accompanying “Motion of the Chamber

of Commerce of the United States for Leave to Intervene.”

* On June 8, 1973, the Chamber filed a motion for leave to inter-

vene in this proceeding. Consent te its intervention was received

from all parties to this case with the exception of Teamsters Local

Union No. 676, which interposed no objection to the Chamber’s

motion. Should the Chamber’s motion for leave to ingervene not

be granted, the Chamber’s brief should alternatively be considered

as a brief amicus curiae since, pursuant to Rule 42, consent from

all parties to this case has been obtained for the filing of a brief

amicus curiae.

2

REASONS FOR GRANTING THE WRIT

The instant case presents an issue of enormous impor-

tance for the efficient functioning of the judicial system.

It is, moreover, an issue as to which no prospective

litigant and no court has been afforded meaningful or

reliable guidance. On the contrary, the question whether

a case has become moot,—a question which can arise to

plague any party in any case at any time with respect to

any issue,—has produced a wide range of differing views,

differing tests and differing results. Predictably, there

has resulted a conflict in the circuits which cannot ra-

tionally be reconciled. Indeed, both the conflict and the

confusion are so clear, that the court below expressly

urged this Court to address itself to the problem. Ac-

cordingly, this Court’s guidance in the formulation of

appropriate rules is needed and warranted. This need is

particularly urgent in the area of labor relations with

which the instant case is concerned because of the un-

usual degree of inconsistency and conflict afflicting moot-

ness decisions in this field.

I. The Nature of the Problem

The narrow question presented here is whether a case

arising under the labor laws becomes moot and should not

therefore further engage the judicial process when the

immediate dispute which gave rise to it, although of a

recurring nature involving matters of public importance,

becomes resolved during the process of review.

In resolving this question, the generally cited bases

for the mootness doctrine itself afford only limited assist-

ance. In its broadest sense, mootness is one of the doc-

trines by which a court determines whether or not a

matter before it may be properly adjudicated. It is a

limitation on judicial power. Justiciability, an ill-defined

concept relied upon to determine the scope and limitations

of the judicial power, is often thought of as a Consti-

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3

tional stricture imposed by the “case” or “controversy”

requirement.’ However, the terms “case” or “controversy”

are themselves vague and inherently capable of varying

interpretation,? so that to say that a matter is not jus-

ticiable because it does not present a “case” or “contro-

versy” is devoid of useful meaning. It is perhaps for

this reason that mootness problems, which arise because

the conduct complained of has ceased prior to appeal

but is likely to recur, have posed a conceptual difficulty

that has failed to evoke a consistent or predictable re-

sponse.®

Aside from imprecise Constitutional limits, the policy

bases for the mootness doctrine similarly offer limited

assistance. Those bases have been described as a need to

economize judicial endeavor and need to assure the fullest

litigation of the issues,—an objective presumably best

guaranteed by an existing “controversy.”* In fact, both

criteria are suspect. If an issue is of a recurring nature

whose potential effect reaches many prospective plaintiffs

or defendants, the greatest judicial economy will result

from a decision which will put the issue to rest and

obviate much future litigation. If the nature of the re-

curring issue involved is one which is inherently likely

to be resolved prior to a reviewing court’s decision on the

merits, then a failure to decide it despite such a resolu-

tion will only result in proliferating litigation in which

each case in turn is likely to become “moot” while the

underlying dispute continues to avoid judicial scrutiny.

Such a result produces the antithesis of “judicial econ-

1U.S. Const., Art. III, Sec. 2.

2 Note, Cases Moot on Appeal: A Limit on the Judicial Power,

108 U. Pa. L. Rev. 772 (1955) ; Note, Moot Cases on Appeal in the

Supreme Court, 88 Harv. L. Rev. 1672, (1970).

3 See Sidney A. Diamond, Federal Jurisdiction to Decide Moot

Cases, 94 U. Pa. L. Rev. 125 (1946).

* Note, 103 U. Pa. L. Rev. 772.

4d

omy.” Similarly, issues of importance whose continuing

future effects may be anticipated may well be more

earnestly litigated by those, such as associations of po-

tentially affected members, who foresee an impact on

them of those future effects than by directly involved

parties who may never see the problem again. That is,

there is no inherently necessary connection between the

existence of an unresolved dispute and a thorough and

competent litigation of the issues.

How, then, should the determination be made as to

whether a given case should engage the judicial process?

Former Chief Justice Warren, in Flast v. Cohen, 392

U.S. 88, 95 (1968), stated that justiciability is a concept

designed to “limit the business of federal courts to ques-

tions presented in an adversary context and in a form

capable of resolution through the judicial process.” * This

functional view of justiciability suggests that the con-

ceptual problems involving application of the mootness

limitation to the type of case here under consideration

may best be resolved and consistency be achieved by

analyzing justiciability in terms of the needs and ob-

jectives of the appellate judicial process rather than, for

5 Justice Frankfurter, concurring in Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 594 (1952) expressed a similar view

in language which emphasized the amorphous quality of the con-

cept.

“Judicial power can be exercised only as to matters that were

the traditional concern of the courts at Westminster, and only

if they arise in ways that to the expert feel of lawyers consti-

tute ‘cases’ or ‘controversies.’ Even as to questions that were

the staple of judicial business, it is not for the courts to pass

upon them unless they are indispensably involved in a@ con-

ventional litigation. . . .”

What is the relationship between what may once have been “tra-

ditional” to what is now, in a vastly changed time, appropriate?

How does one codify the “expert feel” of lawyers? And to the

extent that the legal system adjusts to the needs of an ever more

complex society, can the notion of “conventional litigation” remain

constant?

5

example, in terms of the identity of those who seek to

litigate the issues or whether a specific instance of a gen-

eral and continuing controversy has been resolved by the

parties.

Fundamentally, that appellate judicial process requires

only that degree of adverseness of interest between liti-

gants as will assure both the effective functioning of the

adversary system and the effective resolution of issues

of public importance. However, in making mootness de-

terminations, courts have evolved a variety of theories

which are in no way consonant with each other. We

submit, with reference to the two requirements set forth

above, that (1) clarity and uniformity in the application

of the mootness doctrine can be accomplished without

compromising the objectives and needs of sound judicial

policy; and (2) the instant case is an appropriate vehicle

for accomplishing this desired result.

II. Courts’ Treatment of the Mootness Issue Has Been

Inconsistent and Affords No Effective Guidance to

Potential Litigants.

A. The Differing Variables Employed by the Courts.

In determining whether a case which involves an im-

portant and recurring question becomes “moot” when

the immediate parties have adjusted their personal dis-

pute prior to definitive judicial consideration of the issue

presented, or when relief to the contending parties is

otherwise inappropriate, courts have created inconsistent

and artificial distinctions which have produced confusion

where clarity is needed.

In United States v. W. T. Grant Co., 345 U.S. 629,

632 (1953), one of the most often cited decisions in this

area, the defendants in an anti-trust suit voluntarily

ceased the conduct complained of prior to final judicial

review. The “mere possibility” that the challenged con-

duct might again recur was held to be sufficient to in-

sure the presentation and vigorous litigation of issues

6

necessary to proper adjudication and prevent the case

from being “moot”. This Court stated:

“{Vjoluntary 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.

. .. A controversy may remain to be settled in such

circumstances, . . . e.g., a dispute over the legality

of the challenged practices. . . . The defendant is

free to return to his old ways. This, together with

a public interest in having the legality of the prac-

tices settled, militates against a mootness conclu-

sion.” (Citations and footnote omitted.)

This proposition had been stated previous to, as well as

subsequent to, Grant. But it has not, however, been

uniformly applied nor does its expressed rationale ex-

plain other decided cases.

Grant, however, involved a governmental challenge to

private conduct that had ceased prior to review, as did

the authorities referred to in footnote 6, supra. The

“mere possibility” of recurrence which precluded a find-

ing of mootness there has not uniformly been applied to

otherwise similar situations where it is private parties

who challenge governmental conduct. Illustrative is Oil

Workers, Local 8-6 v. Missouri, 861 U.S. 363 (1960), the

case upon which the lower court relied in finding the

instant matter moot. In Oil Workers, a case brought by

private parties, the State of Missouri seized certain

struck facilities during emergency circumstances and en-

joined any future strike. The Court there held that a repe-

tition of that conduct was merely “speculative,” and con-

sequently held the case moot. But is there a difference

between the “mere possibility” of recurrence and a “spec-

ulative” recurrence? It does seem clear that so long

* Bakery Sales Drivers Union v. Wagshal, 333 U.S. 437, 442

(1948); NLRB v. Mezia Mills, Inc., 389 U.S. 568, 567 (1950) ;

NLRB v. Raytheon Co., 398 U.S. 25 (1970).

7

as one may speculate about recurrence,—i.e., it is not im-

possible,—then there is at least a “mere possibility” that

the questioned conduct will be repeated. Curiously, in a

subsequent case the same conduct involved in Oil Workers

was repeated pursuant to the same alleged authority,’

illustrating that even when a future similar injury to

claimed interests is only “speculative” it remains “pos-

sible.” In any event, it would appear that the same faint

likelihood of recurrence which prevents a finding of moot-

ness in suits brought by the government has resulted in

findings of mootness in suits brought against the govern-

ment by private parties.

The conceptual basis for this disparate treatment may

result from an unstated assumption that a private party

has an insufficient stake in a recurrence of conduct in-

volved in his suit, conduct to which he might never again

be subjected, to warrant reliance upon him to constitute

an effective and interested litigant for the future. In

cases such as Grant, on the other hand, where the govern-

ment challenges private conduct in its law-enforcement

function, the government’s future adverse interest may be

relied upon; that is, it will continue to enforce the same

statute and rule in the same manner against future vio- |

lators. According to this analysis, in suits brought by

* Street Employees Div. 1287 v. Missouri, 374 U.S. 74 (1968);

see, also, an earlier case, Commercial Cable Co. v. Burleson, 250

U.S. 360 (1919), which involved a seizure by the Postmaster Gen-

eral of the cable company’s property during World War I. The

possibility that a seizure might recur was held insufficient to afford

_ the necessary personal stake. See, also, A. L. Mechling Barge Lines

v. United States, 368 U.S. 324 (1961) where’an ICC order was

attacked because it was made without a supporting hearing or

findings. The Commission promised that it would make findings in

the future, but insisted it was not required to hold hearings. The

case was held moot because the new practice of giving findings

“may lead the Commission to provide for a hearing—at least under

some circumstances.” Jd., at 331. These cases, brought by private

parties to protest government conduct, represent an avoidance or

rejection of the “mere possibility” test.

8

private parties, the avoidance of mootness requires a

greater likelihood of recurrence than “mere possibility”.

At least one student of this Court’s opinions has so

concluded.®

Unfortunately, this analysis explains only a portion of

the relevant cases. Thus, in Gray v. Sanders, 372 U.S.

368 (1968), this Court expressly applied the “mere pos-

sibility” test articulated in Grant to a private challenge

of governmental conduct. Sanders was a voter class ac-

tion challenging a Georgia state statute governing pri-

mary elections. The election officials did not follow the

statutory plan for the primary in question, and the elec-

tion was held. In holding the case not moot, this court

applied the Grant test. The meaning of that case is not

entirely clear, however; while the terminology followed

Grant, the certainty that the Georgia voters would be

adversely affected by any return to the challenged plan

would presumably also satisfy the impliedly more strin-

gent Oil Workers criteria.

Adding to the difficulty of assessing the import of

Sanders is the contention, according to the court below

and at least one legal scholar,’ that the explanation for

the Sanders case lies, instead, in the fact that election

cases constitute a separate sub-group for mootness pur-

poses. Under that view the relevant variables to be ex-

amined in mootness cases has swelled: Is the Govern-

ment involved? Who is the plaintiff? What is the degree

of likelihood of recurrance of the challenged conduct

(differing in effect depending upon who the plaintiff is)?

And what kind of case is involved?

As the variables employed by courts proliferate, it can

be seen that the area begins to take on a needless and

® This explanation for the described disparate treatment appears

to be adopted in Note, 83 Harv. L. Rev. 1672 (1970).

* Note, 108 U. Pa. L. Rev. 772.

burdensome complexity. Moreover, this Court has never

expressly held election cases to represent a separate class

and an analysis of such cases yields no obvious answer.

Moore v. Ogilvie, 394 U.S. 814 (1969) involved a pri-

vate party’s challénge to the validity of a statute whose

provisions were interpreted by state authorities effective-

ly to deprive the challenging party of an opportunity to

run for elective office. By the time the case reached this

Court the election had already taken place. Nonetheless

the case was held not moot. This Court could not realis-

tically say that the challenged conduct would with cer-

tainty affect the challenging party in the future. On the

contrary, one could only “speculate” whether he would

again run for elective office. Rather, the case was deemed

non-moot because it involved an important public ques-

tion which would affect other similar private parties in

the future since the same governmental agency would

presumably continue to interpret the same statute in the

same manner. Either Moore is an illustration of a sepa-

rate sub-group of mootness case or,—by avoiding reli-

ance on the Grant and Oil Workers terminology and fo-

cusing instead on the likelihood of future injury to other

then-unaffected private parties,—Moore effected a change

in mootness law generally.

In contrast to Moore, which involved an inherently

likely recurring effect of the challenged conduct on a

group which might or might not include the plaintiff

himself, this Court declined to review the merits of two

other election cases, Brockington v. Rhodes, 396 U.S. 41

(1969), and Hall v. Beals, 396 U.S. 45 (1969). Brock-

ington and Hall involved situations in which the com-

plaining party sought to have his name placed on the

ballot as a candidate for a particular election (Brocking-

ton), and sought to be permitted to vote in a particular

election (Hall), but was prevented from doing so pur-

suant to the operation of a statute which had subse-

10

quently been. amended. By the time these cases reached

this Court, the statutory amendments had been effected

and the specific elections involved had been conducted.

These cases were held to be moot since a repetition of

the kirid of injuries complained of could not recur in

view of the statutory amendments. That is, in practical

terms, no conceivable interest of either the individual

complaining party or any others similarly situated could

possibly be infringed in a similar manner in the future.

Reading the Moore, Brockington and Hall cases to-

gether, one may well deduce that this Court has effected

a departure from the various tests previously followed

in Grant, Oil Workers and Sanders and now relies, in

mootness cases presenting important public questions, on

whether it is possible that certain challenged conduct will

recur to the private plaintiff or the class of persons to

which the plaintiff belongs. Conversely, the former cases

may be read as merely creating an additional basis for

deciding a case on its merits when the future jeopardy

to that class is “inherently likely” even though the pros-

pective jeopardy to the private plaintiff himself may be

merely “speculative.” Finally, one may read Moore, as-

suming again that it is not merely representative of a

special sub-group of cases, to give more specific meaning

to Oil Workers in defining the degree of likelihood of

recurrance which avoids mootness when private parties

bring suit.

Nor do these authorities and possibilities exhaust the

variables which courts’ decisions have relied upon in de-

termining whether cases are moot. The various ap-

proaches discussed above, which are based on assessments

of probability of future effect, are further confused when

the challenged conduct is deemed “capable of repetition,

yet evading review.” In Southern Pacific Terminal Co.

v. ICC, 219 U.S. 498 (1911), this Court employed ‘the

quoted language as a basis to uphold a private challenge

ll

an injury such as he was then challenging. Indeed, the

_Court’s focus was not at all on the degree of predictable

future jeopardy to the plaintiff but rather on the need

of the judicial system for a resolution of a problem which

would otherwise continue to escape judicial scrutiny. It

should also be noted that to still another legal scholar

needs of the judicial system for means by which to re-

solve problems; it was not primarily concerned with any

requirement to satisfy the criteria relied upon in the

other mootness cases discussed supra.

The reasoning of Southern Pacific would also seem to

underscore this Court’s decision in Sibron v. New York,

392 U.S. 40 (1968). That was a criminal case in which

a private challenge was mounted to an alleged improper

police search. The Court’s conclusion of non-mootness in

that case could not be said to trace to a concern that the

challenging party was “inherently likely” to be again

affected by the same wrongful conduct or that the prob-

ability of such a recurrance was, as to him, more than

“speculative.” Rather, the Court was concerned that the

substantive issues presented-in the case had a great po-

tential impact on others and, unless adjudicated, would

continue to evade judicial review.

Whatever the difficulty of reconciling the latter two

decisions with Moore, Oil Workers and the “mere possi-

bility” test of Grant, the task is compounded by the view

1° Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U.

Pa. L. Rev. 125 (1946).

12

of at least one commentator ™ that criminal cases such

as Sibron, like election cases, constitute an independent

area whose mootness rules may not be imported to the

analysis or resolution of such issues in other areas of the

law.

Coming now to the instant proceeding, the confusion

present here represents in microcosm the problems of the

entire area. The underlying substantive question is one

of substantial public importance, involving the propriety

of a State’s payment of public welfare funds to striking

employees. Since strikes and threats of strikes will con-

tinue to occur, States will therefore continue to make

the challenged welfare payments and parties will con-

tinue to act on the basis of the assumption that such

payments may be made should a strike be called,—all

to the disruption of parties’ continuing bargaining rela-

tionships,—therefore the problem will recur with cer-

tainty. While there is at least a “mere possibility” that

the issue will again confront the immediate parties

(Grant), there is an “inherent likelihood” (Moore) that

the class of persons, i.e. employers, to which the private

plaintiff belongs will be affected by a recurrance. Since

the duration of a strike is unlikely to be sufficiently

protracted to survive the appellate process, the question

_ presented is short term in nature, “capable of repetition,

yet evading review.” (Southern Pacific). Yet the court

below, relying on Oil Workers, dismissed the case as be-

ing moot because the specific strike which gave rise to

the entire action has terminated. .

* While recognizing that the law of mootness has under-

gone substantial liberalization and that the instant case

would not appear to be moot. on the strength of recent

decisions such as Moore, the court nonetheless held it

moot on the premise that in labor relations cases, the

discontinuance of the challenged conduct necessarily re-

11 Note, 83 Harv. L. Rev., supra.

—

13

4

sults in mootness. Thus the court below seeks to segre-

gate still another area from the mainstream of mootness

law and create yet one more independent sub-group.

Moreover, the court below would render the mootness law

in labor cases unique in that it would be only in such

cases that the discontinuance of the underlying dispute

automatically rendered a matter moot irrespective of

other variables employed in other cases or other areas

of the law. Oil Workers cannot reasonably be read to

warrant such a result; nothing in that case requires a

distinction between the mootness rules in labor cases and

those which are appropriate in any other category or type

of case.

Accordingly, adding to the confusion of the superabun-

dance of tests and variables which may be derived from

prior decisions of the courts in mootness cases, the court

below adds a further basis for legal distinction.

From the viewpoint at least of a potential litigant,

this is a situation which invites clarification and the re-

sulting adoption of simpler, more encompassing rules.

B. Discussion of the Variables Courts Have Employed

in Mootness Cases and an Alternative Proposal.

The various approaches which courts have used to de-

termine whether one has a sufficient interest in the resolu-

tion of an issue, as divorced from its particular factual

context, to prevent a finding of mootness have yielded the

described uncertainty. They afford no rational basis for

determining whether a case will be fully, competently or

vigorously litigated. There is no warrant in logic or

sound policy for applying one test in election cases such

as Moore or criminal cases such as Sibron, applying a

wholly different test in labor disputes such as Oil Work-

ers, a third test when the government challenges private

action, and a fourth test when a private party acts as

plaintiff. There is no assurance that the self-interest

necessary to achieve vigorous litigation will obtain in one

14

‘type of case rather than another and the assessment

of the plaintiff’s personal stake in terms of proba-

bility of recurrence of challenged conduct does not ex-

plain the court’s adjudication of issues of public im-

portance,—all of which militates in favor of granting

certiorari in order to produce a needed clarification.

This public interest aspect is inherent in Southern Pa-

cific, Moore and Sibron. It forms the basis for courts’

need to determine issues of compelling importance which

might otherwise evade review. Thus, where the issues

raised involve significant. questions that ought to be re-

solved, the requirement of probability of effect has been

adjusted to allow resolution. Further, a number of lower

federal courts have apparently adopted a public interest

exception where, even though a case would be otherwise

moot, the issues are of sufficient importance that they

compel judicial resolution.” If the issues raised in a

case are sufficiently important that they affect a broad

category of persons and are likely to recur, there is no

sound basis for rejecting an appeal because the appellant

is unable to demonstrate for a certainty that a recurrence

will affect him.”

12 See, e.g. Friend v. United States, 388 F. 2d 579, 581 (CADC,

1967) ; Dyer v. SEC, 266 F. 2d 33, 47 (CA 8), cert. denied, 361

U.S. 835 (1959) ; Boggess v. Berry Corp., 233 F. 2d 389, 391 (CA 9,

1956) ; contra, Campbell Soup Co. v. Martin, 202 F. 2d 398, 399

(CA 5, 1953). While this Court has indicated the relevance of the

public interest in mootness determination, see, e.g., Grant, supra;

Moore, supra; Sibron, supra, it has not expressly relied on the

“public interest” as the sole basis for determining the question of

mootness. Street Employees Div. 998 v. Wisconsin Employment

Relations Board, 340 U.S. 416, 418 (1951).

43 The “public interest” component of the mootness doctrine has

had great appeal to commentators in this area:

“Not easy to weight, [the public interest in an adjudication

on the merits] has seemed to some courts so pressing . . . as to

justify a decision on the merits despite the fact that the de-

cision could have no substantial effect on the parties who

16

The nature of the “interest” which a plaintiff should

be required to possess in an issue to overcome a sugges-

tion of mootness when relief in his case is otherwise

inappropriate should be determined without reference

to the continuum of probability-of-future-effect which

courts today use as a test. That is, whether a recurring

issue should be resolved by the courts ought not to de-

pend upon the need for courts to measure the shades of

differences between situations where such recurrence is

“speculative,” or “merely possible,” or “probable,” or “in-

herently likely” or “certain.” Rather, it should be recog-

nized that since self-interest is the motive which insures

the proper functioning of the adversary judicial process,

the fact that the appellant seeks to expend the time,

money and effort to prosecute an appeal constitutes ade-

quate assurance that he will litigate the issues with vigor.

His self-interest may be based upon his own appraisal of

the probability that a recurrence of the conduct com-

plained of will affect him adversely. Perhaps it may be

based on an identity of interest with those similarly situ-

ated. In some instances it may reflect an association’s

efforts to protect its members’ interest from future jeop-

ardy.* In any event, recognition of this principle re-

flects the realities of much present day litigation chal-

originally raised the question and that its usefulness would, as

a result, be largely confined to the creation of precedent.”

(Citations omitted.) (Note, “Moot” Administrative Orders,

53 Harv. L. Rev. 628, 680 (1940).

%* That such associational participation on its members’ behalf

demonstrates an interest sufficient to overcome. objections to the

adverseness principle was apparently recognized by the First Cir-

cuit in Grinnell v. Hackett, —— F. 24 ——, 82 LRRM 2986 (1978),

which involved the same underlying substantive issue as is pre-

sented by the instant case. In Grinnell the Chamber was allowed to

intervene, and thus prevent mootness, because it represented “many

other employers . . . , as to at least some of whom the issue is

certain to recur.” Id., at 2989-90.

16

lenging governmental action and, rather than diminishing

the quality of litigation, serves to enhance it.

Recognition of the legal adequacy of the personal stake

of an appellant who, for whatever reason, perceives a suf-

ficient self-interest to warrant prosecuting an appeal,

does not destroy the necessary adversity required for

vigorous litigation. Where the issue is important and

there is a possibility of recurrence of the disputed con-

duct, the government, as defender of its actions, has an

equally sufficient interest in presenting a well-argued

case as it does when it is functioning as prosecutor; *

it is surely just as important that the government refrain

from unlawful conduct as it is that private persons do so.

Since any unlawful activity engaged in by the govern-

ment in the administration of a public law is bound to

affect a large class of people and thus raise important is-

sues, vindication of the public interest by private parties

should not depend on the uncertainty engendered by

tests of relative probability of recurrence. An even-

handed and consistent application of the Grant test to all

plaintiffs in all areas of the law would accomplish this

and would involve no greater risk to the adverseness prin-

ciple that this Court is already assuming under that

test in its current and arguably more restricted sphere.

15 This interest has been recognized by Professor Jaffe in his

argument that “ideological” plaintiffs who challenge governmental

action merely as concerned citizens should be accorded standing.

See, Jaffe, The Citizen As Litigant In Public Actions: The Non-

Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033 (1968).

16 When the challenged conduct is engaged in by the government,

it is more than likely to recur absent a judgment condemning it as

unlawful. The possibility that the issue in question will recur in-

sures that the government, as defender of its policies, is a recur-

rent litigant who will be aware of the impact that an adverse de-

termination will have on its future activities. Its adverse interest

is thus assured. See, e.g., Carroll v. President & Commissioners of

Princess Anne County, 394 U.S. 175 (1968).

17

Although the mootness doctrine in “recurrence” cases is

inconsistently and confusingly applied, there is one policy

thread that runs throughout. In cases determined not to

be moot, the real concern of the courts has seemed to be

the avoidance of the potential for continuous litigation

of the same issues when those issues affect large seg-

ments of the public. This concern is manifested in the

cases as an expression of the “public interest”. While

cases which have been found not to be moot can be read

to share this concern, there are other cases, however,

which have been held moot (such as Oil Workers, supra)

which would appear to have warranted a different result

for these same reasons.

This concern for the resolution of issues of public in-

terest resulted in a finding of “justiciability” in the first

“recurrence” case, United States v. Trans-Missouri

Freight Association, 166 U.S. 290 (1897). Trans-Mis-

souri, the conceptual progenitor of Grant, supra, involved

an anti-trust action in which the government sought

dissolution and injunction. During the pendency of the

appeal, the defendant voluntarily dissolved. The Court

held the case not to be moot saying:

“There mere dissolution of the association is not the

most important object of this litigation. The judg-

ment of the court is sought upon the legality of the

agreement itself for the carrying out of which the

association is formed... .” Id., at 308.

The defendants were enjoined from re-combining in

the future. This is significant because the theory preva-

lent at the time was that mootness was a remedial con-

cept, and where this Court could not render an effective

decree, the matter was moot.’ In Trans-Missouri there

was nothing to enjoin since the defendants had ceased

their allegedly unlawful combination, and the Court’s

17 See Singer Mfg. Co. v. Wright, 141 U.S. 696 (1891) ; Ex Parte

Baez, 177 U.S. 378 (1900).

18

decree would have no effect. However, the Court was con-

cerned with the possibility that the “defendants would,

by a series of successive re-combinations and dissolutions,

engage the government in continuous litigation so that

the “rights of the public” in obtaining judicial resolution

of the underlying issue would be thwarted. Id., 305-6,

309-10.

Similarly, in Southern Pacific, supra, this Court em-

phasized the importance of judicial review to all carriers

who might possibly be affected by the ICC’s policy of

promulgating short-term orders. And in more recent

cases, this concern is more manifest. In Sibron, supra

the Court expressly stated that it was concerned with

“. , . the vital importance of keeping open the avenues

of judicial review . . .”, 392 U.S. at 52, and in Moore, su-

pra, where the underlying issue required resolution be-

cause it reflected a “. . . continuing controversy in the

federal-state area .. .”, 394 U.S. at 681.

In fashioning a rule which may predictably be applied

in cases raising a question of mootness, the policy de-

terminations expressed in Southern Pacific, Sibron, and

Moore should be superimposed upon this Court’s require-

ment, as expressed in Flast v. Cohen, supra, that justicia-

bility is intended to insure that

«. . . the questions will be framed with the necessary

specificity, that the issues will be contested with the

necessary adverseness and that the litigation will be

pursued with the necessary vigor to assure that the

. . » Challenge will be made in a form traditionally

thought capable of judicial resolution.” (at p. 106)

In short, it is posited here that the proper appligmon

of the mootness doctrine demands an examination ¢ e

following criteria in cases where the immediate parties

to the proceeding have adjusted their dispute prior to

judicial consideration of the case or specific relief is for

any other reason then inappropriate:

19

1) Whether the issue is one of importance affecting

broad segments of the public or a substantial class rep-

resented by the plaintiff;

2) Whether the issue is one which may recur; “mere

possibility” of recurrance should be the only relevant

measure of continuing probability of effect; and

3) Whether there exist some parties to the proceeding

who are prepared to litigate the opposing merits of the

issues in conformance with the Flast standards.

If these criteria are satisfied—that is, the issue is

worth deciding on its merits, may recur to jeopardize

others’ interests and will be earnestly litigated,—then

courts should proceed to an adjudication of that issue.

Restricted to these variables, the analysis of mootness

cases will be freed from the current excess-of tests and

categories and will afford a measure of predictability

without loss of courts’ flexibility within the confines of

these proposed criteria to make such judgments as ap-

pear appropriate in the case at hand. A particularly

meritorious consequence of the adoption of the proposed

rule will be to eliminate special tests for special sub-

classes of cases. There is no inherent necessity for treat-

ing labor relations cases differently than any others for

purposes of determining mootness. The court below so

held not because it was required by logic or policy to do

so, but solely because it was thought that this Court’s

decision in Oil Workers compelled that result. Whether

Oil Workers should be so interpreted warrants this

Court’s attention. Indeed, this is true irrespective of the

advisability of refashioning or clarifying mootness rules

generally. For the questions presented in labor relations

cases are of no less major consequence than those pre-

sented in any other field, no less infrequently present

Constitutional problems and balancing requirements be-

tween statutory and Constitutional rights, recur no more

20

infrequently than major issues in other areas, are no

less prone to associational representation of members’

interests and are no less earnestly pursued and litigated

in the courts. On the contrary, arguments may well be

advanced to demonstrate that in the often highly-charged

atmosphere of labor relations the degree of parties’ con-

cern and need for the settlement of potentially difficult

future questions is more intense than may be typical

elsewhere.“ But the establishment of that a fortiori posi-

tion is unnecessary to the contention urged here that

simpler, more generally applicable and more easily en-

forceable rules are needed to convert mootness to a man-

ageable and more useful doctrine both in labor relations

and elsewhere.

“If the Court is confronted with a substantial like-

lihood that an issue it believes moot will always ar-

rive there in the same condition because of the in-

herent nature of the issue, the Court should not re-

fuse review on the basis of mootness. This policy

overrides the first policy of ensuring the effective

functioning of the adversary system, so demonstra-

tion of the litigants’ personal stake should not be

required. The Court must acknowledge that the real

choice is not between taking or not taking risks with

the quality of the judicial process, but between se-

curing or not securing the values of appellate re-

view—stability, uniformity, and objectivity.” ”

18 The underlying substantive issue presented below has given

rise to substantial recent litigation demonstrating its significance

as an issue, its recurring quality and the willingness of those who

are and who may be affected by such recurrence to litigate the

matter. See, e.g., ITT v. Minter, 485 F. 2d 989 (CA 1, 1970);

Grinnell v. Hackett, supra; Almace Vv. Hackett, 311 F. Supp. 964

(D.R.I., 1970) ; Francis v. Davidson, 340 F. Supp. 351 (D. Mich.),

aff'd. per curiam, 409 U.S. 904 (1972); Russo v. Kirby, 453 F. 2d

548, (CA 7, 1971); Dow Chemical Co. v. Taylor, —— F. Supp.

——, 57 F.R.D. 105 (1972).

” Note, 83 Harv. L. Rev. 1672 at 1692 (1970).

21

III. There Exists An Irreconcilable Conflict Among the

Circuits as Well as Between the Circuits and This

Court’s Decisions.

As has been previously noted herein, the court below,

while conceding great doubt and inviting this Court’s

‘guidance, held the instant case moot because the union’s —

strike had been discontinued prior to judicial considera-

tion of the strike-related issue which gave rise to the suit.

. This result was said to be required by the fact that in

labor relations cases the absence of a viable dispute ren-

dered a case moot irrespective of the existence of other

variables or criteria which would lead courts to hold

otherwise in fields other than labor law.

At the outset, that view of the function of. mootness

in labor relations cases, though premised on the assumed

holding of this Court in Oil Workers, is in conflict with

a substantial number of cases also decided by this Court

in the same labor field and in which a decision on the

merits had been rendered although the challenged con-

duct had ceased long before. Among such decisions are

Bakery Sales Drivers Union v. Wagshal, 333 U.S. 487,

442; N.L.R.B. Vv. Mexia Mills, Inc., 889 U.S. 568, 567;

N.L.R.B. Vv. Raytheon Co., 398 U.S. 25; and Local 1976,

United Brotherhood of Carpenters and Joiners, et al. V.

N.L.R.B., 357 U.S. 93. In the last cited case, for exam-

ple, a union which had been charged with engaging in

unlawful picketing had agreed to cease such conduct

after the filing of those charges but prior to the issuance

of any formal administrative Complaint. The union had,

moreover, as part of its cessation of unlawful conduct,

fully settled the case with the complaining employer and

had executed a collective bargaining agreement contain-

ing an explicit pledge not to resume striking. To the

contention that the case was moot this Court disagreed

22

and held “. . . the controversy was not rendered moot

. we cannot say that there was no danger of continued

violation.”

Similarly, the Courts of Appeals have regularly ad-

judicated labor issues over objection that the parties’

settlement of their dispute or the cessation for other

reasons of the alleged improper conduct rendered the

cases moot. Illustrative cases include N.L.R.B. v. United

Hatters, et al., 286 F. 2d 950 (CA 4, 1961):

“Nor can we adopt the suggested dismissal of the

petition as now presenting only an academic ques-

tion inasmuch as the pickets have long since been

withdrawn.” ;

N.L.R.B. v. Lotal 182, IBT, 814 F, 2d 58 (CA 2, git

N.L.R.B. v. Plumbers Union of Nassau County, Local

457, et al., 299 F. 2d 497 (CA 2, 1962); N.L.R.B. v.

Globe Wernicke Systems Co., 386 F. 2d 589 (CA 6,

1964) :

“Abandonment of an unfair labor practice does not

cause the controversy to become moot.”; |

N.L.R.B. v. Marsh Supermarkets, Inc., 827 F. 2d 109

(CA 7, 1963):

“If the court makes no decision as to the Respond-

ent’s former conduct, it may then be repeated; hence

a decision as to its legality will not be a futile exer-

cise of jurisdiction.”

The Third Circuit itself, in contrast to its decision

herein, declined to hold a case moot on application for

an injunction by the National Labor Relations Board

despite prior full compliance with all aspects of the

Board’s remedial order. N.L.R.B. v. Local 65, Carpenters

Union, 318 F. 2d 419 (CA 3, 1968). The latter case was

one in which the government was the moving party. Lest

it be assumed that this factor militates against the con-

23

clusion that the Third Circuit itself has rendered incon-

sistent decisions in this area, this Court’s attention is

directed to another Third Circuit opinion which was is-

sued subsequent to the instant case and which involved

two opposing private parties. In Pittsburgh Newspaper

Printing Pressmen’s Union No. 9 v. Pittsburgh Press

Co. et al., —— F, 2d ——, 88 LRRM 2849 (decided May

29, 1973), that court held that the appellant-unions’ ap-

peal from the district court’s denial of an injunction to

restrain the employer’s reduction of number of work

shifts pending arbitration was not moot despite the fact

that the parties’ dispute had since been resolved through

arbitration. The court held that “. . . this appeal is not.

moot because the issues involved are ‘capable of repeti-

tion yet evading review’”. In its decision, the court

failed to mention, much less distinguish, the instant case

decided shortly before.

In order to highlight the conflict which afflicts this

area, this Court is referred to still another Third Circuit

decision in which the court held moot a private party’s

appeal of a district court’s alleged improper limitation

_of its participatory rights under Section 10 (1) of the

National Labor Relations Act. Samoff v. IAM, Lodge

No. 1, 420 F. 2d 952 (CA 8, 1969). The court’s decision

_ holding the appeal to be moot was premised on the settle-

ment of the dispute which gave rise to the proceedings

in which the appellant wished to exercise a participatory

role. Samoff would thus appear to be consistent with the

decision below but inconsistent with a dissimilar panel’s

subsequent holding in Pittsburgh Press.

However, shortly after Samoff was decided the iden-

tical factual and legal ‘situation arose in the Eighth Cir-

cuit. Terminal Freight Cooperative Assn. et al. v. Solien,

440 F. 2d 124 {CA 8, 1971). The Eighth Circuit reached

a contrary result: ;

24

“In [Samoff], the Third Circuit held the execution

of a collective bargaining agreement. mooted an ap-

peal on a similar issue. We are not disposed to fol-

low this holding as we think it is contrary to the

teaching of the Supreme Court in United States v.

W. T. Grant Co... .”

In further explication of its holding,—in a case brought

by private parties protesting an alleged breach of rights

guaranteed under the labor laws—the Eighth Circuit

expressly relied on mootness doctrine which had arisen in

non-labor areas in suits brought by the government:

“We do not think this case is moot because the prob-

ability of repetition of unlawful secondary boycott

activity by the Union in the instant case is sufficient

to satisfy the “mere probability” test articulated in

United States v. W. T. Grant Co. . . . In our view, a

case is justiciable ‘if there is a probability that the

challenging party will be affected should recurrence

take place’ . ... We believe that the doctrine of moot-

ness should not be used to perpetually frustrate re-

view of issues of public importance arising in other-

wise, justiciable cases . . .” (Quoting Comment, 83

Harv. L. Rev. 1672, 1692)

In summary, there can be no serious argument with

the proposition that the law regarding mootness, both in

labor law cases as well as in other fields of law, is in

serious disorder. There is authority supporting altogether

inconsistent results and a demonstrable and irreconcila-

ble conflict among the circuits themselves. The need to

promote order and predictability is patent. This Court

has achieved that end recently in another important area

which had previously been in similar disaray,—the law

of standing. Association of Data Processing Service Or-

ganizations, Inc. v. Camp, 397 U.S. 150; Barlow v. Col- .

lins, 397 U.S. 159. A comparable effort,—sought even by

the court below,—is warranted.

4

25

CONCLUSION

For .the reasons stated above, in supplementation of

those stated by the petitioner, it is urged that the peti-

tion for writ of certiorari herein be granted.

Respectfully submitted,

MILTON A. SMITH

General Counsel

Otto F. WENZLER

Labor Relations Counsel,

Chamber of Commerce of the

United States of America,

1615 H Street, N.W.

Washington, D.C. 20006

GERARD C. SMETANA

925 South Homan Avenue

Chicago, Illinois 60607

JERRY KRONENBERG

BoROVSKY, EHRLICH & KRONENBERG

120 South La Salle Street

Chicago, Illinois 60603

°

Of Counsel:

CoLE, ZYLSTRA & RAYWID

2011 Eye Street, N.W.

Washington, D.C.

CPST

SUPREME COURT, U. 3.

IN THE_

Supreme Court of the Anitey Statey———

OcrosER TERM, 1973 FILED

No. 72-1554 NOV 26 1973

SUPER TIRE ENGINEERING comphiiest NOBAK, JR..CLERK

SUPERCAP CORPORATION; and

A. ROBERT SCHAEVITZ

Petitioners

vs.

LLOYD W. McCORKLE, Commissioner of the Department

of Institutions and Agencies of the State of New Jersey;

IRVING J. ENGELMAN, Director of the Division of Public

Welfare of the Department of Institutions and Agencies of

the State of New Jersey; FRED L. STRENG, Director of the

Camden County, New Jersey Welfare Board; JUANITA E.

DICKS, Welfare Director of the Municipal Welfare Depart-

ment of the City of Camden, New Jersey; Intervenor De-

fendant: TEAMSTERS LOCAL UNION NO. 676, Affiliated

with International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America

Respondents

BRIEF FOR PETITIONERS

HERBERT G. KEENE, Jr.

JAMES A. YOUNG

1300 Two Girard Plaza

Philadelphia, Pa. 19102

LAWRENCE M. COHEN

JEFFREY S. GOLDMAN

~111 West Washington Street

Chicago, Illinois 60602

Attorneys for Petitioners

Of Counsel:

STRADLEY, RONON, STEVENS

& YOUNG

1300 Two Girard Plaza

Philadelphia, Pa. 19102

LEDERER, FOX AND GROVE

111 West Washington Street

Chicago, Illinois 60602

rian PAGE

eB Te ee eC Tee Pere Te 1

Bo RR eee er ere Se re ere Tee eee 2

Connlians Peale xs so costs eS eu chav essa ies 2

Constitutional Provisions Involved .................- 2

ee reer errr rr er 3

a ee ee? Pere 4

a ee eS eee 7

pe Pe he eee re rr nee ras 9

I. The “Current Contours” of the Mootness Doctrine

Permit Resolution of the Instant Controversy .. 9

A. The Evolution of the Mootness Doctrine . . a

B. The Present Case Involves Both the Requisite

Probability of Recurrence of the Dispute

and Adverse Effect on Petitioners ........ 11

C. The Instant Case Falls Within the Ambit

of the Southern Pacific Doctrine ........ 15

D. Oil Workers Is Inapposite .............. 17

II. The New Jersey Policy of Providing Subsidies to

Striking Employees Is an Impermissible Obstacle

to the Accomplishment of Federal Labor Policy.. 19

A. Free Collective Bargaining Without Govern-

ment Interference Is Essential to the Federal

Lee NNR 6 8 65 CANES ks 21

B. A State Interest Cannot Legitimize an In-

trusion Upon Federal Law ............ 23

C. Assuming Arguendo That the New Jersey

Policy Is Not Prohibited as a Matter of Law,

a Demonstration That Substantial Subsidies

Are Available to Striking Employees Consti-

tutes a Prima Facie Showing of an Impermis-

sible Obstruction of Free Collective Bar-

CID a kg bs 0k AK Ka Ak ak 27

AUTHORITIES CITED

; Cases

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) 15

Ablondi v. Board of Review, 8 N. J. Super 71 (App.

ee) See rere rrr rere rey ke 22

A. F. L. v. Watson, 327 U. S. 582 (1946) .......... 14

Aeronautical Lodge 727 v. Campbell, 337 U. S. 521

CUORE) hicks been ous cowe udcteaescennsbanasee 14

Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 (1937) .9, 10

Almac’s, Inc. v. Hackett, 312 F. Supp. 964 (R. I.

STOR pice no chee bd Hee cee Manoa OPT) 0 ihe 14, 19

American Shipbuilding Co. v. N. L. R. B., 380 U. S. 300

¢. eger Cr on rary pre ery tree 21

Atherton Mills v. Johnston, 259 U. S. 13 (1922) ...... 12

Atlantic Richfield Co. v. Oil Chemical & A. Wk’rs., Int'l.

Union, 447 F. 2d 945 (7th Cir. 1971) .......... $2, 13

Avco Corp. v. Local 787, UAW, 459 F. 2d 968 (3rd

CS ED ae ache ech ova sek éesuesceeeens 12, 13

Boys Market, Inc. v. Retail Clerks Union, Local 770, 398

U.. 2205 CR asic SD Ce ess 14

Brockington v. Rhodes, 396 U. S. 41 (1969) ........ 18

Cab Operating Corp. v. City of New York, 243 F. Supp.

$90 (3. Di W.. Yi BOGS Dd. ciad. scores rkagascecess 23

Carroll v. Commissioners of Princess Anne County, 393

tO) ee Bi: igeae ee er Eee eRTGUo LE RET e TE 16

Colorado Anti-Discrimination Commission v. Continental

Airtines, 372.0.:8.: 714 (29G3) occa ves ssacccccess 24

Commercial Cable Co. v. Burleson, 250 U. S. 360 (1969) 18

Committee to Free the Fort Dix 38 v. Collins, 429 F. 2d

BO7 (Srd Cle. 1970) 2... cece cscecense 10

iii

Cooper v. Pate, 378 U. S. 546 (1964) ............. goad

Dandridge v. Williams, 397 U. S. 471 (1970) ........ 19

Delaware Coach v. Public Service Commission, 265 F.

Sam: COG Ci. TOOT) oes oes cece esiccuses 23, 24, 25

Division 1287, Bus Employees v. Missouri, 374 U. S. 74

CRORE hsnciasass fe eR FE PBS ITE EGE IT 14

Doremus v. Board of Ed., 342 U. S. 429 (1951) ...... 12

Dow Chemical Company, The v. Taylor, ...... F. Supp.

.... 57 F.R. D. 105 (E. D. Mich., pend.) ........ 19

Ex Parte Baez, 177 U. S. 378 (1900) ...........+:- 9

Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U. S.

BIO CRDODD os 05 ek) SS bi oS ee es 14

Flast v. Cohen, 392 U. S. 83 (1968) .............4.- 12

Florida Lime & Avocado Growers v. Paul, 373 U. S. 132

CRED) a hinnpnctens CRON S Sci wkeks ies ch kode ae 24

Francis v. Davidson, 340 F. Supp. 351 (Md. 1972), affd

per curiam, 404 U. S. 904 (1972)..............4- 19

Free v. Bland, 369 U. S. 663 (1962) ................ 24

Gardner v. Toilet Goods Assoc., 387 U. S. 167 (1967) . 15

Garner v. Teamsters Union, 346 U. S. 485 (1953) .... 25

Gatling v. Butler, 52 F. R. D. 389 (D. Conn. 1971) ..... 11

General Dynamics Corp. v. Local 5, Shipbuilders, 469 F.

Me CI ee FE oa hb hire cree cepa vssesss 13

General Electric Company v. Callahan, 294 F. 2d 60 (1st

Ce: BOE ok Noes 6 bos Oh wo beh ke as Sheth eears 22, 26

Goldberg v. Kelly, 397 U. S. 254 (1970) ............ 16

Grand Rapids City Coach Lines v. Howlett, 137 F. Supp.

GST CW. Th BR, UBS) ov see ie ices +tsde a ae

Gray v. Sanders, 372 U. S. 368 (1963).............. 11

iv

Great N. Ry. v. Sunburst Oil & Refining Co., 287 U. S.

BSB (1982): dcaridte 6 ius 4 oe WRIA ES prin eer ee emake 10

Grinnell Corporation v. Hackett, 475 F. 2d 449 (1st Cir.

1973), cert. den. 94 §. Ct. 164 (Oct. 9, 1973)......

ee ee ie ee eee 9, 13, 15, 17, 19, 25

Hall v. Beals, 396 U. S. 45 (1969) ...........-e eee 11

I. T. T. Lamp Division v. Minter, 435 F. 2d 989 (lst

Cir., 1970), cert. den. 402 U. S. 933 (1971), reh. den.

406 UR: CT4 FIG Fi is sb vbacae 8 4, 5, 16, 19, 20, 23, 25

John Hancock Mutual Life Insurance Co. v. Commissioner

of Insurance, 349 Mass. 390, 208 N. E. 2d 516

C1OGR) ose cis Eee ia ee ee es 22, 23, 2§

Kuhn v. Fairmont Coal Co., 215 U. S. 344 (1910) coe

Lascaris v. Wyman, ........... Se (1973), cert. den.

O60: Ce: TGS Cee. BAGO. ein es oe aes oe 19

Ling: v.: Jafeo,. 375\U..G: 301 -CAGGR) cvn iin cae scirs 17

Linkletter v. Walker, 381 U. S. 668 (1965) ........ 10

Local 1976, Carpenters v. N. L. R. B., 357 U. S. 93

CROOE) ci nn dG cae eis beaten 13

Local 24, International Brotherhood of Teamsters v.

— Gliver; S50 S).. S.. ZOD. CISTI): nc nnd on cnc ce ievns 21

Matson Terminals, Inc. v, California Employment Com-

mission, 24 Cal. 2d 695 (1944) ................ 22

McDonnell-Douglas Corp. v. Green, ........... Si, Bk: lind :

BO Ra, Boe ee Oe CATED hic kde wind 0 bie exccnuns 25

A. C. Mechling Barge Line v. U. S., 368 U. S. 324 (1961) 18

Moore v. Ogilvie, 394 U. S. 814 (1969) ....11, 15, 16, 18

Motor Coach Employees v. Lockridge, 403 U. S. 274

CROFT ES ks Sari ai os le Ke oc enn keene 20

CTOGS). ciiosd a vangss Ka genss et tthe 19 ioe Oe 24

DEA ERE LEI I MP RO NE RE LTE LINE NE TL ERLE EIN EPI RIE ELIE IE GEIS AF I ERG SASTRY

Vv.»

Nash v. Florida Industrial Commission, 389 U. S. 235

CRGGT) sonnei Oks Keb eee cases Loh ended 25

N. L. R. B. v. Exchange Parts Co., 375 U. S. 405

CEG 5. 0100 iec iu 4 CER) O06 he oda oe eed tanees 26

N. L. R. B. v. Globe Wernicke Systems Company, 336 F.

OG SOD (Gt Chr, FOGG icc beans cebetiercevacas 13

N. L. R. B. v. Granite State Joint Bd.,’409 U. S. 213

CLOT) ann pacvn gods soy eaeeen 006i eons bres beens 26

N. L. R. B. v. Insurance Agents’ Int'l. Union, 361 U. S.

it | eer Pore ree ere ree mere 14, 21

N. L. R. B. v. Local 825, Operating Engineers, 400 U. S.

DOT EADTOD 86's oes ong enabling es oi os cb abaeees 13

N. L. R. B. v. Marsh Supermarkets, Inc., 327 F. 2d 109

CP SR ED AV ea ase heen n vote cece se nas 12, 13

N. L. R. B. v. Mexia Textile Mills, 339 U. S. 567 (1958) 13

N. L. R. B. v. Newark Morning Ledger, 120 F. 2d 262

(3rd Cir. 1941), cert. den. 314 U. S. 692 (1941)..... 14

N. L. R. B. v. Plumbers Union of Nassau County, Local

457, 299 F. 2d 497 (2nd Cir. 1962) ............ 13

N. L. R. B. v. Raytheon Company, 398 U. S. 25 (1970) 13

N. L. R. B. v. Savair Mfg. Co., 470 F. 2d 305 (6th Cir.

1972), cert. granted 36 L. Ed. 2d 683 (1973)....... 26

N. L. R. B. v. United Hatters, 286 F. 2d 950 (4th Cir.

1961) ..icccccesces he tteneene Mines Ss Obn Pas 13

New York Telephone Company, et al. v. New York State

Dept. of Labor, No. 73 Civ. 4557 (S. D. N. Y., pend.) 19

North Carolina v. Rice, 404 U.S. 244 (1971) ........ 10

Oil, Chemical & Atomic Workers v. Arkansas Louisiana

Gas Co., 332 F. 2d 64 (10th Cir., 1964) ........ 22, 26

Oil Workers v. Missouri, 361 U. S. 363 (1960)

oS ee ee tecee eS, 9, 14; 17, 18

e 2 ERT SL MILE EAE TLE EE CPL IE RELATIONS TCL ae EC ,

vi

Pacific Maritime Association v. Int'l. Longshoremen’s

Union, 454 F, 2d 262. (9th Cir. 1971) ........... 13, 16

Perez v. Campbell, 402 U. S. 637 (1971) ....... 5, 23, 24

H. K. Porter Co. v. N. L. R. B., 397 U. S. 99 (1970).... 21

Powell v. McCormack, 395 U. S. 486 (1969)......... 18

Printing Pressmen’s Union No. 9 y. Pittsburgh Press Com-

pany, 479 F. 2d 607 (1973) .................. 13, 16

Roe v. Wade, .... *U: S. » 35 L. Ed. 2d 147

Cite? Vineiie sae. 7, 13, 15, 16

Russo v. Kirby, 453 F. 2d 548 (2nd Cir. 1971) ...... 19

San Diego Building Trades Council v. Garmon, 359 U. S.

236 (1959)

Sears, Roebuck and Co. v. Stiffel Co.,.376 U. S. 225

MN MOAI MHRE Cs Se Senys ccsccacs. os. 24

Sibron v. New York, 392 U. S. 40 RUNES ia gous ck 16

Sierra Club v. Morton, 405 U. S. 727 (1972) ........ 12

Solien v. Miscell. Drivers & Helpers Union, Local No. 610,

440 F. 2d 124 (8th Cir. _ Lie 10, 16

Southern Pacific Terminal Co. v. I. C. C., 219 U. S. 498

oe SR Se ey is Se ae eee 5, 7, 9, 10, 16

Teamsters, Local 20 v. Morton, 377 U. S. 252 (1964) .21, 25

Toilet Goods Assoc. v. Gardner, 387 U. S. 158 (1967). .14, 15

United States v. Concentrated Phosphate Export Ass’n.,

Oe isi. abo cb ovo cc cca. 11

United States v. Trans-Missouri Freight Association, Inc.,

166 U. S. 290 (1897) ........ PePRee CRC URT OCs ¢ 10

United States v. W. T. Grant Co., 345 U. S. 629 (1953) 12

Weber v. Anheuser-Busch, Inc., 348 U. S. 468 (1955) 24

Westinghouse Electric Corporation v. Board of Review, 25

We hii ev iviseviveck.... ck...

vii

Statutes and Regulations

38 Federal Regulations No. 1 (Jan. 3, ii ea eegee 19

2 U. S. Code Congressional and Administrative News,

90th Cong. Ist Sess. ( OE eh eos. yk... 26

Miscellaneous

Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev.

ott ateces (a ne ee ee 20, 21

Daily Labor Report, No. 77 (April 2-20, 1973)......., 19

Davis, Ripeness of Governmental Action for Judicial Re-

view, 68 Harv. L. Rev. 1122 A RE a 15

Frankfurter, A Note on Advisory Opinions, 37 Harv. L.

ccios 4 ussece te canaeg, HA AP ee ee 10

Iowa Brief Amicus Curiae in ITT Lamp Division v. Minter 19

Massachusetts Brief in Opposition in J. T. T. Lamp Divi-

ee ee 20

Note, Cases Moot on Appeal: A Limit on the Judicial

Power, 103 U. Penn. L. Rev. 772 Cee seas 10

Note, Mootness on Appeal in the Supreme Court, 83 Harv.

oe ee 10, 16

Thieblot and Cowin, Welfare and Strikes: The Use of

Public Funds to Support Strikers, Industrial Research

Unit, University of Pennsylvania Press (1972) ...... 23

U. S. Department of Labor Statistics, Bureau of Labor

Statistics, Work Stoppages in 1971 (Selected Final Tab-

Wee ee Pe) ss es 12, 14

Wyoming Brief Amicus Curiae in ITT Lamp Division vy.

on etesl a he ee EEE a Gn eam 19