324 F.2d 853 (6th Cir. 1963), 15204, Fraser v. Magic Chef-Food Giant Markets, Inc.

Docket Nº:15204.
Citation:324 F.2d 853
Party Name:Robert FRASER, Jr., Plaintiff-Appellant, v. MAGIC CHEF-FOOD GIANT MARKETS, INC., Defendant-Appellee.
Case Date:December 09, 1963
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 853

324 F.2d 853 (6th Cir. 1963)

Robert FRASER, Jr., Plaintiff-Appellant,



No. 15204.

United States Court of Appeals, Sixth Circuit.

December 9, 1963

Page 854

Jack G. Day, Cleveland, Ohio (Bernard A. Berkman, Larry S. Gordon, Cleveland, Ohio, on the brief), for appellant.

William J. Isaacson, New York (Morris Berick, Marvin S. Zelman; Burke, Haber & Berick, Cleveland, Ohio, Milton Kunen, Frederick R. Livingston; Kaye, Scholer, Fierman, Hays & Handler, New York City, on the brief), for appellee.

Before MILLER, CECIL and PHILLIPS, Circuit Judges.

CECIL, Circuit Judge.

This action was brought in the Common Pleas Court of Cuyahoga County, Ohio, by Robert Fraser, Jr., on behalf of himself and fellow employees of Magic Chef-Food Giant Markets, Inc., to recover wages in excess of $1,000,000. The action was removed to the United States District Court for the Northern District of Ohio, on motion of the defendant by virtue of diversity of citizenship. (Sec. 1332, Title 28 U.S.C.) Federal question jurisdiction (Sec. 1331, Title 28 U.S.C.) could also have been invoked under Sec. 301 of the Labor Management Relations Act (Sec. 185, Title 29 U.S.C.). Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246; International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, U.A.W., A.F.L.-C.I.O. v. Textron, Inc., 312 F.2d 688, C.A.6.

The employees' claim arises out of a collective bargaining agreement between Magic Chef, Inc., and Mechanics Educational

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Society of America, Local 72, AFL-CIO, hereinafter called the Union. The name of Magic Chef, Inc., was changed to Magic Chef-Food Giant Markets, Inc., the appellee in this appeal. The name has again been changed to Food Giant Markets, Inc. It will be referred to herein as Magic Chef or the Company. Robert Fraser, Jr., will be referred to as the appellant.

This litigation grows out of the operation of a plant in Cleveland by Magic Chef. The Union had been the exclusive bargaining agent for the production and maintenance employees of Magic Chef since 1954. In April 1956, a new collective bargaining agreement was entered into, retroactive to March 1, 1956, and terminable on May 1, 1957. While this contract was in effect, the company requested the Union to enter into a new three-year contract which would supersede the contract then in effect.

The Company was engaged in the manufacture and sale of commercial and domestic cooking equipment and oil and gas space heaters. The Cleveland plant was engaged primarily in the manufacture of commercial cooking equipment. Gas and oil heaters were...

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