The Mengel Company v. Nashville Paper Products and Specialty Workers Union, No. 513, an Unincorporated Labor Organization, and John Nelson Cook
221 F.2d 644
6th Cir.
1955
Check Treatment

*1 Accordingly we possessed property. case. Florence

must dec.'ineto follow judgment stated, the

For the reasons vacated will be

of the court below directions with cause remanded opinion. proceed accordance COMPANY, Appellant,

The MENGEL AND PRODUCTS PAPER

NASHVILLE UNION, NO. WORKERS SPECIALTY Organiza- unincorporated Appellees. Cook, tion, Nelson and John No. 12260. Appeals Court of

Uniled States Circuit. Sixth

April Judge, dissented.

Stewart, Circuit Smith, Jr., Louisville, Ky. U. James Dodson, Jr.,

(K. Nashville, Tenn., Harlan appellant. brief), *2 against Washington, D. of lawful ac- Thatcher, because his Union Herbert S. tivities, Hugh Reams, with this inconsistent C., (John McLellan, E. S. Agreement.” Minter, brief; No made contention is Tenn., Kingsport, on the appellees provision Tenn., Kingsport, that this McLellan, of was violat- Tipton, ed. counsel), appellees. for McALLISTER, Article XII deals and with vacations. The MILLER Before Judges. various sections thereof state the rules

STEWART, Circuit governing eligibility therefor, provide length for the of vacations based on Judge. MILLER, Circuit length service, time, of and deal with the declaratory judg- Appellant filed this priority among employees and when va- provisions of Sec. ment action under the 2201, cations should be taken. 8 of Section U.S.Code, asking an that Title 28 provides: XII Article “When em- appellees award, claimed ployee eligible who is vacation laid provi- pursuant made to have been period, off for an quits, indefinite or or bargaining contract, of a collective sions discharged, the vacation allowance ac- Judge The District be declared invalid. crued, any, paid will be at the time appellees’ to dismiss. motion sustained lay-off.” of such termination or Section Mengel Company, provides here- Appellant, 11 of XII Article em- —“An operates ployee Mengel, quit, who or inafter referred as has does or who has manufacturing plant corrugated discharged cause, in been a Nashville, box or who takes Appellee, John absence, N. an Tennessee. unauthorized leave of shall plant. Cook, employee previous that service, was an at lose all and Paper Appellee, only and Products Nashville continuous service will be calculated Specialty reemployment.” here- from Appel- Union No. of Workers date Union, argues lant inafter referred to as that neither Section nor years of collective for a number Section been bargaining agent XII Article or limits re- production any way right manage- stricts employees plant. at this maintenance ment to hire and fire at will as it exist- prior ed execution the contract. Mengel Union into a and the bargaining entered covering Appellees contract proper collective contend con- September 14, Sep- period whole, 1952 to struction as a particular 1953. On June Men- tember gel discharged consideration to Section employ. XII, right manage- from its Cook Article limits the Mengel discharge rein- employee The Union demanded that except ment to claiming Cook, cause, had been disagree- that he state and since there is Mengel discharged without cause. re- ment between the about proper for the reasons— contract, fused reinstate Cook construction of the (1) employment was an em- Cook’s was a matter which could be referred ployment party and at the will of either provi- arbitration under the arbitration nothing the collective sions contained the contract. impaired^Iengel’s limited or tract sought Union arbitration over the employment to ship relation- terminate discharge, relying up- Cook’s cause, any with without at time or following on the of the Collec- Mengel event, (2) that, any Bargaining Agreement. tive Article ample cause to Cook. provides: XIII “In the event of a dif- respect to the first of these con- With arising Company ference between the only appears tentions three there employees meaning and its as to the provisions in the collective application provision discharge of contract that refer to the an Agreement, all work shall continue with- employee. interruption pending proceedings out looking provides: employee IX to conciliation or Article “No arbitration. >» ** discharged provides: Article shall be discriminated XIV discharged matter, any between Cook was arise difference “Should just Company Agreement, cause and such differ- to this wages, make up whole as to lost taken between ence shall first be aggrieved employee foreman of and the *3 Mengel present filed the action involved, department m the the asking District Court for a declaration ^ be re- shall event it not so settled rights bargain 0£ under the collective it^ Standing writing to Joint ferred the in ing contract, to the effect that the dis “shall be Committee, Committee to which charge appellee of the was not an Cook questions arise as which referred all question arbitrable and that the Board any upon placed to the to be construction authority 0£ had no to hold Arbitrators any Agreement or of this of the clauses alleged hearing purported the and make the thereof, cannot which violation award, appellees it asked also provides also It be settled otherwise. enjoined any taking he from action to question or difference re- that purported enforce the award. Jurisdic not deter- Committee ferred to the in tion the District Court was claimed a certain after mined period the Committee Sec_ Management under Labor Rela 301> dispute time, in “the matter gec. 135, tions Act of Title 29 U.S. 1947> Board an Arbitration shall be upon to referred q_a_ appellees The moved to dismiss the party to the of either the demand compiaint (1) jurisdiction for lack of Agreement. (2) to failure a cause of state action. The moved for sum provides the creation Article XV mary judgment and filed affidavit the thirty within of a Arbitration Beard of general manager support of the days question be- or difference “after a Judge, motion. The District a brief Agreement parties to tween this the explanatory order without statement or point it is to the where shall have come opinion, appellant’s denied motion for ready Board by,the for consideration summary judgment appel and sustained provides Article also XV Arbitration.” leef complaint, motion to dismiss the recognize “that the that imperatively followed, appeal This par- obligatory upon both opinion any difference of ties whenever presents appeal questions: The two party under to of either as the (i) ju Whether the District had Agreement or arise whenever the shall (2) risdiction to entertain suit and the any dispute of the construction as to the jurisdiction if Court, existed in the District any provisions take Agreement, of its or did the Arbitration Board have duly appeal place, the to authority at once to under the of the Agree- under this authorities stituted collective dispute hear contract to the Standing ment, Commit- Joint viz:—the and make award. The Atlan disagreement, to tee, the ten, and in case 332, 64 L.Ed. U.S. S.Ct. ” * * Arbitration, 586; Republic Co., Board of Colombia v. Cauca 529-530, j 190 U.S. 47 S.Ct. . L E , n A v-4. + convened. was Arbitrators A Board of j. Judge d. 1159. The District did not , , , , Board dis- the Company moved .... .. ,, ,, indicate whether he decided the case on ground that the case miss the ,. , ,,,. ground . jurisdictional J . . ... ... or on the mer ^ Board was jurisdiction m that without submit arbitrable no there was Appellant right conceded in the District Company’s them, since original unimpaired and in its brief filed in employee was diversity citizenship this Court that The Chairman by the contract. jurisdiction and that did exist advisement under motion took Board depended solely upon proceed District Court directed good cause of whether provides Testimony discharge. Act. This section —“Suits for Cook’s existed Thereafter, contracts between an em- violation of ployer question. this heard on organization repre- and a labor that it ruled Board senting industry employees McLauchlin, affect- in an Laurin v. 215 F. ing Act, 347; Campbell Co., as defined commerce v. American Fabrics organizations, any between may labor such F.2d 959. brought any court of district Appellant by present suit, in having jurisdiction of the United States equitable jurisdiction vokes pro parties, respect tect its common law it is not regard controversy amount in or without bound an arbitration award when it citizenship parties.” Sec. voluntarily dispute did not submit Fed- American Title 29 U.S.C.A. such arbitration. is in eration graph Co., Western Union Tele- of Labor v. derogation appellant’s un otherwise *4 and Milk 6 179 F.2d 535 right subject limited to be to arbi not Dairy Emp. and and Ice Cream Drivers Union, tration, may may not defense be a Gillespie 98 v. Milk Local No. action, depending upon to the the Court’s by Corp., 650, 203 F.2d decided support Products opinion, construction of it. In our Court, upon relied are present action is not one for violation jurisdictional contention. meaning a contract within the of Sec. presents Labor-Management We do not think this ease 301 of the jurisdictional question was in- same Act. In of those volved those cases. each allegation complaint express provision in an cases there was “that the Union violated the contract in bargaining agreement collective taking arbitration,” said is brought which the Union suit enforce. part a pleader, conclusion on the of the the exist- No was raised about required which the accept not provision. The ence of the contract if in conflict with the facts stated possible defenses to the cases involved complaint. Peavy-Welsh Simmons v. provision. such a enforcement of Co., Cir., Lumber 5 113 F.2d 812. The seeking present suit, to en- instead of bargaining collective contract was filed provision attacks the force a contract anas complaint, exhibit with the became validity arbitration award of an part complaint, and will be con ground was no contract au- there sidered on the motion to dismiss. Rule thorizing award. the arbitration and the 10(c), Procedure, Rules of Civil 28 U.S. alleged Appellant’s cause of action not C.; Interstate Natural Gas Co. v. South but on the follow- based on the contract ing Co., Cir., ern California Gas 9 209 F.2d principles law, well established 380, 384; States, Cir., Cohen v. United 8 prior to the execution of which existed 733, 129 F.2d 736. If inconsistent bargaining agreement and the collective allegations complaint, the ex independent of it. are Foundry hibit controls. Hamilton & Machine Co. v. International M. & F. right is no common law There Union, Cir., 209, Workers 216; 6 193 F.2d of arbitration. Hamilton v. Home Ins. Co., Foshee Daoust v. Construction Co., 370, 385, 133, 11 34 U.S. S.Ct. 137 23, accordingly 7 185 F.2d 25. We 708; States, v. United L.Ed. Nutt appellant’s determine the nature cause 997, 650, 655, 31 L.Ed. 821. 8 S.Ct. U.S. regard of action without to this conclu right arbitration, Compulsory pleader. sion of the determined court ac have Packing tion, Shortly prior invalid. Wolff Co. v. argument, ap- to the oral Relations, 262 pellant’s U.S. of Industrial supplemental Court 522, counsel filed a 1103; calling 67 L.Ed. Fin 43 S.Ct. opin- brief attention to the recent Goldberg, silver, M. & Moss & Still ion Court Hoover Motor Ex- Co., press Chauffeurs, 171 N.E. N.Y. Teamsters, Co. v. 809; Annotation, Helpers, etc., cases in see F.2d A.L.R. which was de- gen equity subsequent A court ruling A.L.R. cided invalid to set aside District Court in this eral action. In enjoin its enforcement. Mc- or to case we held bargaining that a collective award employ- 1947; agreeme Relations Act of and section 400 a contract of nt not Judgment Declaratory applica- of prevent the the Federal ment which .would Act vests in Arbitration the federal court the United tion of the States grant agreement prayed, the character of relief if the^ Act allegations provision proves oth- of its an arbitration tained complaint.” page qualified Secs. under the Act. F.2d at erwise pro- 1-14, Act That Title' U.S.Code. In Milk and Ice Cream Drivers and for the dis- that the District vides Dairy Emp. Union, Local No. 98 v. Gil- was made award trict wherein the lespie Milk Prod. 203 F.2d the arbitrators award where vacate an 650, 651, this court held that the union’s 10(d), Title powers. their Sec. exceeded enjoin corporation suit to from vio- is now claimed 9 U.S.Code. Jurisdiction lating agreement a collective under that statute. by refusing give to abide effect to properly award was Arbitration The United States brought in the federal district court un- independent itself confer Act does 301(a) der of the Labor § jurisdiction. Act federal *5 Relations Act. application over to actions its limits ju have Court would The Western which the District Union thus case makes except declaratory the judg- Title 28 clear that a suit risdiction under for a agreement. Title Conley, ment nonetheless be one viola- Opera U.S.Code, Co. v. tion a San of contract Carlo within the 301(a) D.C., F.Supp. 825, Management affirmed of 72 310; Labor § Bros. Lumber Co. Gillespie F.2d Krauss Relations Act of In the Sons, Cir., rejected expressly 62 F.2d Louis this Bossert & case court the 1004; Amalgamated Ass’n, etc., v. Declaratory contention “that the Federal Judgment Lines, Act, 189 F.2d Southern Bus U.S.C.A. §§ does not authorize [the district] interpret court to a labor contract and accordingly opinion that the We are injunction to enforce it under jurisdiction to lacked District the 301(a) Hartley section * of the Taft Act judgment action, and its the entertam «(cid:127)» ground. on that affirmed appellant present If the ease Judgment affirmed. disregard purported chosen had to the arbitration award and had awaited Judge (dissent- STEWART, Circuit bringing against of suit it the union ing). award, enforcement there thus agree court district cannot I appeal's question no that the but district jurisdiction ac- to entertain lacked jurisdiction would have court had tion. Milk that action. and Ice Cream Drivers Dairy Emp. Union, Local v. and No. 98 v. of Labor Federation In American Cir., Gillespie supra. Telegraph Co., Milk Prod. The Union Western appellant litigate 535, 538, chose instead held to this court F.2d plaintiff. declaratory judg- question as same That choice a action for that ar consequences no should be of brought by declara- deter- union for a ment mining jurisdiction; question pension plan if a rights under its tion jurisdiction agree- has federal court of a con- by a collective covered troversy it should matter not “clearly which of of action a cause states ment litigation. initiates District States United which very purpose Declaratory of the Federal In that case jurisdiction.” Judgment Act, it, as I understand one for viola- action “The said court appellant’s position one enable seek between tion its in a express provisions a clarification contro- within appellee versy Management as this. such 301(a) Labor section wheth- decided agreement was er a collective controversy real was a There violated. question. It between court district me clear seems under the decide 301(a) provisions of § of 1947.1 Act possible tell whether It is on the this case decided court district merits. jurisdiction or on the

question of therefore, case to would, remand the

I decision on the for a court

the district

merits. COMPANY, AND

WHITAKER Appellant,

v. NO. DISTRICT IMPROVEMENT

SEWER ARKANSAS, DARDANELLE, 1 OF al., Appellees. et

No. Appeals,

United States Eighth Circuit.

March Employees questions Westing- house Salaried were raised 1. No Constitutional (he parties, con and none is here house Electric 75 S.Ct. 488. Westing- Cf. Association of sidered.