On March 4, 1959 the petitioner Min-koff, as Treasurer of the Joint Board of Dress and Waistmakers’ Union of Greater New York (Union), secured an order from the Supreme Court of the State of New York, New York County, directed to the respondent corporations, and requiring them to show cause why an arbitrator’s award should not be confirmed and a judgment entered thereon. The order was issued pursuant to N.Y. Civil Practice Act, § 1461. It wаs received by two of the respondents on March 6, 1959, and by one on March 7, 1959. The award granted damages to the Union, on behalf of its Health, Welfare and Severance Fund, on behalf of the Retirement Fund of the Dress Industry, and on behalf of the Dress Makers’ Joint Council. The petition on which the order was secured alleged that the respondents had entered into agreements with the Dress Makers’ Joint Council, an unincorporated labor organization, 1 and that the agreements contained a provision for arbitration of disputes between the parties. While the petition does not so allege in terms, it is obvious from the facts set forth in the petition, and there is no dispute, that the damages were awarded for violation of these agreements. The award also contained injunctive provisions. On March 17, 1959 the resрondents filed a petition *873 of removal to this Court, pursuant to 28 U.S.C. § 1446 (1952).
Petitioner has moved for an order remanding the matter to the state court. 28 U.S.C. § 1447(c) (1952). In resisting this motion, respondents set forth a number of grounds on which they base their claim that this cause is within the original jurisdiction of this Court and that it was, therefore, properly removed. 28 U.S.C. § 1441(a) (1952). Of these, only one need be considered: respondents’ assertion that jurisdiction is vested in this Court by Section 301(a) of the Labor-Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C.A. § 185(a). 2
Basically, whether the proceeding to confirm the award of the arbitrator is within the jurisdictional grant of Section 301(a) depends, in this case,
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on whether the proceeding is a suit “for violation of [a contract] between an employer and a labor organization representing employees in an industry affecting commerce as defined in” the Act. Preliminarily, it should be noted that the petition in the state court does not allege the status of the Union as “representing employees in an industry affecting commerce.” The removal petition does, however, contain such an allegation and it is undisputed. Where the plaintiff has a right to relief, either under federal law, or under state law as an independent source of that right, it may be that the federal court, on removal, may not look beyond the face of the initial pleading in the state action to determine whether á federal-question is presented. Cf. Gully v. First National Bank in Meridian, 1936,
*873 “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”
*874
Were the interpretation of Section 301 (a)
res nova
it might be held that an action to enforce an arbitrator’s award for violation of a contract, is not a suit for a violation of that contract. Such a holding might be justified on a verbal level. International News Service v. Gereczy, D.C.S.D.N.Y.1958,
In any event, decision here must be had in light of the constructions already authoritatively placed upon Section 301 (a), and remembering that a statute such as this is not “a wooden set of self-sufficient words.” Romero v. International Terminal Operating Co., 1959,
The rights of the parties to a collective bargaining agreement with a union representing employees in an industry affecting commerce, arise under federal law. Textile Workers Union of America v. Lincoln Mills of Alabama, supra, at loc. cit. It was the policy of Section 301(a) that these rights should be enforceable in the federal courts, id., 353 U.S. at pages 452-455, 77 S.Ct. at pages 915-917, аnd it is obvious from the face of the statute that plenary actions to enforce these rights may be brought in the federal courts. See, e. g., Shirley-Herman Co. v. International Hod Carriers, etc., 2 Cir., 1950,
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The consequences, accordingly, of holding that a party’s rights under a collective bargaining agrеement, when first determined by an arbitrator, cannot be enforced in the federal courts, would be these: (1) where the parties
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desire to have their rights ultimately enforced in a federal court, they will not provide for arbitration of their disputes in the first instance, thus forcing the disputes into the courts from the beginning, in which case it is clear that Section 301(a) vests jurisdiction in the federal courts; or (2) where arbitration has been provided for, one of the parties will refuse to comply with the provision, thus forcing a suit in the federal courts to compel arbitration, with enforcement of the award then tested in the federal courts under the doctrine of United Steelworkers of America v. Enterprise Wheel & Car Corp., D.C.S.D.W.Va.1958,
Neither of these consequences would be consonant with the purposes of Section 301(a) and in the absence of a clear indication that the section is to be interpreted as petitioner contends, that interpretation must be rejected. 8
Petitioner advances three arguments to defeat the removability of this proceeding even if it is, as I hold,' one which could have been brought here originally. (1) Petitioner argues that the respondents are guilty of “bad faith”' in effecting the removal. The facts on which this charge rests are these: The order to confirm the award was returnable March 16, 1959. On that date the respondents appeared before the state court and requested an adjournment; This request was denied and respond" ents were then granted, at their request, permission to file papers (the affidavits do not reveal whether the nature of these “papers” was stated to the state court) by 4:00 P.M. on March 17, 1959. The removal petition was filed on March 17, 1959. I do not understand how a party can be guilty of “bad faith” in exercising the statutory right of removal, in any event absent an agreement not to exercise that right. If the petitioner means to argue that respondents waived' their right of removal, and assuming that the doctrine of waiver still exists under the 1948 revision of the removal statute,
9
' I do not believe that the request for an
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adjournment, or for an extention of timе to file papers, or the failure of the respondents to advise the state court of their intention to remove, if such an intention then existed, constitute such a waiver. Cf. Markantonatos v. Maryland Drydock Co., D.C.S.D.N.Y.1953,
I wish only to add, in light of certain contentions in the briefs, what should be obvious: that in holding that this action might have been commenced here and was properly removed here, I am not holding that the state court was without jurisdiction to proceed if the petition for removal had not been filed. Such cases as San Diego Building Trades Council, Millmen’s Union, Local 2020 v. Garmon, supra, are not here relevant. The jurisdiction conferred by Section 301 upon the federal courts is not exclusive. The state courts must, of course, in determining the controversy, apply federal law. Ingraham Co. v. Local 260, International Union of Electrical, Radio and Machine Workers, D.C.D. Conn.1959,
Accordingly, the motion to remand is denied.
The respondents have made two cross-motions. The first is for an order staying the petitioner from proceeding with the state action.
14
The motion is denied, fоr the requested relief is unnecessary. 28 U.S.C. § 1446(e) (1952).
15
Respondents also move for an enlargement of the time within which they may file their “answer.” This motion, and petitioner’s opposition thereto, is based on the misconception that respondents’ opposition to confirmation of the award is to be manifested by an answer. Under both the state and federal law, the proceeding to confirm the award is brought on by motion, as was done here. N.Y. Civil Practice Act, § 1461; 9 U.S.C. §§ 6, 9 (1952). Accordingly, under each law, respondents’ opposition will be by opposing affidavits, In re Worcester Silk Mills Corp., D.C.S.D.N.Y.1927,
So ordered.
Notes
. The petition alleges that two of the respondents entered into agreements with the Council: Scranton Frocks, Inc. and Richard Frocks, Inc. The award determined that these two corporations and Sherri Dress, Inc., the third respondent, “havе at all times been operated * * * as a single, integrated production effort and that Sherri Dress, Ine., as a subsidiary and affiliate of both or either, is obligated together with Scranton Frocks, Inc. and Richard Frocks, Inc. under the terms of the agreements entered into by Scranton Frocks, Inc. and Richard Frocks, Inc., and because of their operations and relationship with each other, all three firms are jointly and severally liable * *
The petition further alleges that, pursuant to the agreements, the Union is the proper agency to enforce them on behalf of the Council and on behalf of the two Funds.
. This section reads as follows:
. Attacks have been made on the jurisdiction of the federal courts to enforce arbitrators’ awards, based on the decision in Association of Westinghouse Salaried Employees v. Westinghouse Electriс Corp., 1955,
. It has been held that the claim that a proceeding such as this is governed by Section 301 is a defense to the action based on federal pre-emption. International News Service v. Gereczy, D.C.S.D.N.Y.1958,
. United Steelworkers of America v. Enterprise Wheel & Car Corp., D.C.S.D.W.Va.1958,
. “Having commenced the suit in the state court on an application for the appointment of the arbitrator, it would not havе been permissible for the plaintiff to have proceeded later for its confirmation in the District Court of the United States upon the theory of a diversity of citizenship.” Marchant v. Mead-Morrison Mfg. Co., 2 Cir., 1928,
. Once it is determined that a proceeding on the arbitrator’s award is a suit within the meaning of Section 301(a), both parties have the right to have the matter determined in a federal forum. The moving party, by instituting proceedings under that Section ; the opponent by removing the proceedings under 28 U.S.C. § 1446 (1952).
. Of the reported cases since the Supreme Court’s decision in Textile Workers Union of America v. Lincoln Mills of Alabama, 1957,
Jurisdiction has been denied, since Lincoln Mills, under the theory of the Westinghouse decision, supra, note 3, in Textile Workers Union of America v. Cone Mills Corp., supra, and Textile Workers Union of America, C.I.O. v. Bates Mfg. Co., D.C.D.Me.1958,
. See Note, 100 U. of Pa.L.Rev. 1067 (1952).
. None of the state eases, holding that a special proceeding is commenced at the time the notice to arbitrate is served, hold that the proceeding is in the court at that time. The decisions have been made in various contexts, such as a holding that a New York proceeding to arbitrate was commenced, by service of the notice, prior tо the commencement of a Delaware suit on the contract which was the subject of the arbitration. Shahmoon Industries, Inc. v. Day & Zimmermann, Inc., 1957,
. The affidavit of the General Manager of the Union, on the motion to remand, states that “Hln the year 1958, in the dress industry alone, 2435 complaints were filed with the Impartial Chairman. Of these, 556 proceeded to award. Most of these were confirmed on motion under New York State Law. The others were compliеd with without confirmation.” (Emphasis in original.)
. Shulman, Reason, Contract and Law in Labor Relations, 68 Harv.L.Rev. 999, 1024 (1955).
. On the basis of the figures quoted in note 11, supra, almost five petitions for removal would have to be filed in this Court for every one proceeding in which the Court would be called upon to act, if the petition had to be filed when the notice to arbitrate was served.
. The motion, as drawn, seeks an order “staying all prоceedings in the above cause in the Supreme Court of the State of New York, County of New York, and staying all proceedings on the part of the Petitioner and his attorneys * * y must assume that the emphasized portion of the quotation is also meant to be limited to the state court action.
. Respondents’ attorney has filed an affidavit, stating that a copy of the removal petition was filed with the clerk of the state court at 3:00 P.M. on March 17, 1959.