276 F. Supp. 56 | S.D.N.Y. | 1967
OPINION
Plaintiff and the defendant union are parties to a collective bargaining agreement in an industry affecting commerce, which contains a “no-strike provision.” Plaintiff, alleging a breach, commenced an action in the Supreme Court of the State of New York for an injunction enjoining the defendants from striking, or causing or advising a strike. An ex parte injunction was issued. The agreement contains an arbitration provision, but the arbitral procedure was not invoked by the plaintiff. The complaint does not seek money damages, but only injunctive and “ * * * other and further relief.”
Although the complaint charges a violation of the collective bargaining agreement, it does not allege it is brought under section 301 of the Labor Management Relations Act.
The issue presented by these motions is whether an action commenced in the state court to enjoin a claimed breach of a no-strike provision in a collective bargaining agreement may be removed to a federal court.
The issue, of great importance in management labor relations, involves a consideration not only of the removal statute, section 1441 of Title 28 and section 301 of the Labor Management Relations Act, but also presents the question of whether section 4 of the Norris-LaGuardia Act,
The Supreme Court is yet to speak on the subj'ect. Those courts that have considered the removal issue and its related issues are sharply divided. The Third Circuit Court of Appeals, in American Dredging Co. v. Local 25, Marine Div., Int’l Union of Operating Eng’rs,
In our circuit there are district court decisions looking both ways. Three of my colleagues have concluded that actions such as are involved here are properly removable under section 1441 of Title 28,® whereas another colleague has held to the contrary.
The views of the commentators are also as varied.
The Supreme Court has granted certiorari in the Sixth Circuit case.
With the matter so thoroughly considered by state and federal courts, no real purpose would be served by another analytical discussion of the problem. I have concluded, based upon the substance of the reasons set forth in those opinions favoring removal, particularly as elaborated in Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists,
In broadest outline, I am of the view that to allow the state courts to issue injunctions denied to the federal courts in section 301 cases would at once destroy the concept of a uniform federal law in collective bargaining cases in industries affecting commerce. A basic purpose of section 301(a) is to achieve a uniform national labor law, to assure which the state courts, although having concurrent jurisdiction in section 301 cases,
The motion to remand to the state court is denied; the defendant’s cross-motion to vacate the temporary restraining order is granted; the motion to dismiss the complaint is denied, since the court has jurisdiction to enforce the arbitration provisions of the agreement.
. 29 U.S.C. § 185.
. 29 U.S.O. § 104.
. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).
. 338 F.2d 837 (3d Cir. 1964), cert. denied, 380 U.S. 935, 85 S.Ct. 941, 13 L.Ed. 2d 822 (1965).
. 376 F.2d 337 (6th Cir. 1967), cert. granted, 389 U.S. 819, 88 S.Ct. 103, 19 L.Ed.2d 68 (Oct. 9, 1967).
. Sealtest Foods Div. of Nat’l Dairy Prods. Corp. — Branch 443 v. Conrad, 262 F.Supp. 623 (N.D.N.Y.1966) (Foley, C. J.) ; Publishers’ Ass’n of New York City v. New York Newspaper Printing Pressmen’s Union, 246 F.Supp. 293 (S.D.N.Y.1965) (Levet, J.); Tri-Boro Bagel Co. v. Bakery Drivers Union, 228 F. Supp. 720 (E.D.N.Y.1963) (Rosling, J.). See also Katz v. Architectural & Eng’r Guild, Local 66, 263 F.Supp. 222 (S.D.N.Y.1966) (Bonsai, J.) ; Crestwood Dairy, Inc. v. Kelley, 222 F.Supp. 614 (E.D.N.Y.1963) (Dooling, J.).
. New York Shipping Ass’n, Inc. v. International Longshoremen’s Ass’n, 276 F.Supp. 51 (S.D.N.Y.1967) (Croake, J.).
. E.g., compare Aaron, Strikes in Breach of Collective Agreements: Some Unanswered Questions, 63 Colum.L.Rev. 1027 (1963), with Moskowitz, Enforcement of No-Strike Clauses by Injunction, 46 B.U. L.Rev. 343 (1967).
. 49 Cal.2d 45, 315 P.2d 322 (1957), cert. denied, 355 U.S. 932, 78 S.Ct. 413, 2 L.Ed.2d 415 (1958). See also C. D. Perry & Sons, Inc. v. Robilotto, 39 Misc.2d 147, 240 N.Y.S.2d 331 (Sup.Ct.1963); Shaw Elec. Co. v. International Bhd. of Elec. Workers, 418 Pa. 1, 208 A.2d 769 (1965).
. Independent Oil Workers at Paulsboro v. Socony Mobil Oil Co., 85 N.J.Super. 453, 205 A.2d 78, 81-82 (1964).
. 389 U.S. 819, 88 S.Ct. 103, 19 L.Ed. 2d 68 (Oct. 9, 1967).
. 376 F.2d 337 (6th Cir. 1967). See also the dissenting opinions of Hastie, J., in American Dredging Co. v. Local 25, Marine Div., Int’l Union of Operating Eng’rs, 338 F.2d 837, 857-858 (3d Cir. 1964) and Carter, J., in McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal.2d 45, 315 P.2d 322, 536-339 (1957).
. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962).
. Local 174, Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).
. Id. at 104, 82 S.Ct. at 577.
. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). See Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 213-14, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).