Food & Service Trades Council v. Retail Associates
Decision Date | 21 October 1953 |
Docket Number | Civ. No. 7049. |
Parties | FOOD & SERVICE TRADES COUNCIL, etc., et al. v. RETAIL ASSOCIATES, Inc., et al. |
Court | U.S. District Court — Northern District of Ohio |
Isadore Kohler, Lowell Goerlich, Toledo, Ohio, for plaintiffs.
Smith, Klein & Blumberg, Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, for defendants.
This matter comes before the Court on the motions of defendant to dismiss, to strike, and for an order requiring the complaint to be made definite and certain.
The motion to dismiss is based upon the grounds that the Court lacks jurisdiction over the subject matter and that the complaint fails to state a claim upon which relief can be granted.
The motion to strike is directed against paragraph numbered 10 of the complaint, which alleges injury to the organization plaintiff by reason of alleged violation of the collective bargaining agreement involved, and against paragraph 1 of the prayer asking damages for such injury.
The motion to make definite and certain asks that plaintiffs be required to set forth the names of the persons in whose behalf the action is brought and who are employees of the defendant.
Identical motions are filed on behalf of each of the six defendants.
As to the motion to dismiss:
The principal argument on this motion is that the Court lacks jurisdiction of the subject matter.
The complaint states that the jurisdiction is based on Section 301 of the Labor Management Relations Act of 1947, Title 29 U.S.C.A. § 185. This section provides:
The complaint in this case is based upon the alleged violation of a certain collective bargaining agreement between the plaintiffs and the defendants, by reason of the claimed failure of the defendants to pay the full commission on sales to their salesclerks provided for in the agreement, for which recovery is asked in the amount due under the agreement.
Defendants contend that this action is not covered by the foregoing provisions, and cite in support of their contention: Murphy v. Hotel & Restaurant Employees & Bartenders International Union, D.C.Mich.1951, 102 F.Supp. 488; McNutt v. United Gas, Coke & Chemical Workers of America, C.I.O., D.C.Ark. 1952, 108 F.Supp. 871; Amazon Cotton Mill Co. v. Textile Workers Union of America, 4 Cir., 1948, 167 F.2d 183; Rock Drilling, etc. v. Mason & Hangar Co., Inc., D.C.N.Y.1950, 90 F.Supp. 539; Textile Workers Union of America, CIO v. Arista Mills Co., 4 Cir., 1951, 193 F.2d 529; J. I. Case Co. v. National Labor Relations Board, 1944, 321 U.S. 332, 334, 64 S.Ct. 576, 88 L.Ed. 762; Yazoo & M. V. R. Co. v. Webb, 5 Cir., 1933, 64 F.2d 902; Illinois Cent. R. Co. v. Moore, 5 Cir., 1940, 112 F.2d 959. None of these cases seem to be in point on this question.
The case of American Federation of Labor v. Western Union Telegraph Co., 6 Cir., 1950, 179 F.2d 535, 536, was also cited by defendants and is relied upon by the plaintiffs. It would seem to control the Court here on the question of jurisdiction. This case was an action begun in the District Court in the Eastern Division of this District by the American Federation of Labor against the Western Union Telegraph Company for alleged breach of collective bargaining agreement and for a declaratory judgment. The District Court dismissed the action for want of jurisdiction. The Court of Appeals reversed. It appears from the opinion of the Court of Appeals that Judge Wilkin sustained the motion to dismiss without giving any reason, and that later Chief Judge Jones dismissed the complaint because of the action of Judge Wilkin in sustaining the motion. The jurisdiction of the District Court in that case, as here, was based upon Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185. It involved the construction and application of the provision of a collective bargaining agreement having to do with a pension plan which the complaint alleged the defendant violated. It was held that neither the amount in controversy nor the citizenship of the parties affects the jurisdiction of a District Court in an action for violation of contract between an employer and a collective bargaining agency representing its employees, the Court stating:
The Sixth Circuit Court of Appeals also held, in Hamilton Foundry & M. Co. v. International M. & Fdry. Workers Union, 6 Cir., 1951, 193 F.2d 209, at page 214, that in action under the National Labor Relations Act, as amended in 1947, 29 U.S.C.A. § 151 et seq., the District Court, 95 F.Supp. 35, did not lack jurisdiction because the alleged cause of action was not based on diversity of citizenship, citing its previous decision in American Federation of Labor v. Western Union Telegraph Co., 179 F.2d 535, supra, and stating that the cause of action arose out of a law of the United States.
A late case involving this question is United Electrical, Radio & Machine Workers of America v. Oliver Corp., 8 Cir., 1953, 205 F.2d 376. This action was brought to recover damages suffered by the employer resulting from a strike allegedly called by the defendant unions in violation of provisions of their collective bargaining agreement. The Court held that the District Court had jurisdiction under Section 301 of the Labor Management Relations Act, stating in 205 F. 2d at pages 384, 385:
."
The case of United Protective Workers of America v. Ford Motor Co., 7 Cir., 1952, 194 F.2d 997, was an action by plaintiff union and an individual plaintiff against defendant for damages for breach of collective bargaining agreement and for declaratory relief. The question was whether the discharge of the individual plaintiff by defendant was in violation...
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