Board of Education v. Connecticut Board of Labor Relations

Shea, J.,

dissenting. I disagree with the conclusion that the appeal is moot for two reasons: (1) the analysis is inconsistent with that we applied in our recent decision in Hartford Principals ’ & Supervisors ’ Assn. v. Shedd, 202 Conn. 492, 496, 522 A.2d 264 (1987); and *130(2) it is inconsistent with our policy of following the decisions of the federal courts concerning provisions of the National Labor Relations Act analogous to those of our state Labor Relations Act, General Statutes §§ 31-101 through 31-111b. Imperial Laundry, Inc. v. Board of Labor Relations, 142 Conn. 457, 460, 115 A.2d 439 (1955).

I

In Hartford Principals’ & Supervisors’ Assn., we concluded that the criteria for the “capable of repetition, yet evading review” doctrine were met where the collective bargaining agreements under which the dispute arose had expired because of the likelihood that disputes between the same parties over the same statutory construction issues would arise again. The probability in the present case of renewed disputes over the necessity of submitting for council approval the provisions of future contracts concerning employee insurance benefits between the city and the unions is equally great. Such provisions are a standard part of collective bargaining agreements between the unions and the city, which continues to adhere to the view that its charter requires that these provisions be approved by the legislative body in spite of the contrary rulings of the state labor board and the court below. The fact that the unions acquiesced in this practice when successor contracts were last entered into, when the parties expected a resolution of the issue in this pending case, hardly indicates an abandonment of their position that the board of education has exclusive authority over the subject matter of the dispute. Their failure to file another unfair labor practice complaint under these circumstances hardly indicates acquiescence.

The opinion attempts to distinguish Hartford Principals’ & Supervisors’Assn, on the ground of the relative public importance of the issues involved in the *131dispute, concluding that the present case “does not present a question of far reaching public importance” but deals merely “with the interpretation of a local charter provision,” that would “not affect an ongoing program of the state’s civil system,” as in Hartford Principals’ & Supervisors’ Assn. I think this distinction in the degree of public importance is too flimsy to serve as a useful criterion in deciding whether an appeal is moot. The implication is left that where the issue concerns only a municipal charter it is too insignificant to warrant resolution by this court regardless of the likelihood of its repetition as a source of controversy between the same parties. After all, the city’s “local charter” is a statute of this state, though it pertains to only one municipality. The degree of public concern criterion that the opinion seeks to add to the standard set forth in Hartford Principals ’ & Supervisors ’ Assn, for review of issues “capable of repetition, yet evading review,” appears to preclude our consideration of any dispute not having a substantial public impact, regardless of its importance to the parties or the probability of its repetition under circumstances where a definitive resolution of the issue cannot be obtained.

II

Because our Labor Relations Act has been patterned after the National Labor Relations Act, “the judicial interpretation frequently accorded the federal act is of great assistance and persuasive force in the interpretation of our own act.” Imperial Laundry, Inc. v. Board of Labor Relations, supra, 460. The federal courts have frequently rejected the notion that the propriety of a cease and desist order prohibiting an unfair labor practice, such as that ordering the city in this case not to require council approval of employee insurance provisions in future collective bargaining agreements, becomes moot once the particular dispute resulting in the order has been resolved. “A Board order imposes *132a continuing obligation; and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree.” NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 567, 70 S. Ct. 826, 94 L. Ed. 1067 (1950); see also Local 74, Carpenters Union v. NLRB, 341 U.S. 707, 715, 71 S. Ct. 966, 95 L. Ed. 1309 (1951); Solo Cup Co. v. NLRB, 332 F.2d 447, 449 (4th Cir. 1964); NLRB v. Denver Building & Construction Trades Council, 192 F.2d 577 (10th Cir. 1951).

If our review of the merits should result in the affir-mance of the position of the state labor relations board that employee insurance benefits are not excluded by the Hartford charter from the general authority of the board of education over the working conditions of school employees, the cease and desist order of the state labor board should be enforceable directly in the courts through contempt proceedings, if it is violated. If our review should invalidate the order, this continuing dispute over the authority of the board will have been set to rest. The dismissal of the appeal for mootness, of course, leaves the dispute over this legal question still open, thus frustrating the legitimate desires of the city, the unions, and the board for a final determination of the issue.

Accordingly, I dissent.