Food & Service Trades Council v. Retail Associates, Civ. No. 7049.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtKLOEB
Citation115 F. Supp. 221
PartiesFOOD & SERVICE TRADES COUNCIL, etc., et al. v. RETAIL ASSOCIATES, Inc., et al.
Docket NumberCiv. No. 7049.
Decision Date21 October 1953

115 F. Supp. 221

FOOD & SERVICE TRADES COUNCIL, etc., et al.
v.
RETAIL ASSOCIATES, Inc., et al.

Civ. No. 7049.

United States District Court N. D. Ohio, W. D.

October 21, 1953.


115 F. Supp. 222

Isadore Kohler, Lowell Goerlich, Toledo, Ohio, for plaintiffs.

Smith, Klein & Blumberg, Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, for defendants.

KLOEB, District Judge.

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:

115 F. Supp. 223
"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, 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.
"(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
"(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members."

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

115 F. Supp. 224
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
"This Act makes it plain that the amount in controversy or the citizenship of the parties in no wise affects the jurisdiction of the United States District Court in actions for violation of contracts between an employer and the collective bargaining agency representing its employees; that such actions may be brought in any district where duly authorized officers or agents of such labor organization are engaged in representing or acting for employee members; and that a labor organization may sue in a United States court in
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6 practice notes
  • Association of Westinghouse v. Westinghouse El. Corp., No. 10954.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 28, 1954
    ...Telegraph Co., 6 Cir., 1950, 179 F.2d 535. See also Food & Service Trades Council v. Retail Associates, Inc., D.C. N.D.Ohio 1953, 115 F.Supp. 221. In the former case, the Sixth Circuit held that there was federal-question jurisdiction under Section 301(a) to entertain a suit by the unio......
  • United Steelworkers of America v. New Park Min. Co., No. C-26-58.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • December 16, 1958
    ...17 v. Mason & Hanger Co., supra. Food & Service 169 F. Supp. 115 Trades Council v. Retail Associates, D.C. N.D.Ohio, W.D., 1953, 115 F.Supp. 221, favorable to plaintiff's views, was relied upon by the union when Westinghouse was before the lower court. Association of Westinghouse Sa......
  • In re Evans, Bankruptcy No. 94-50037M.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Eastern District of Arkansas
    • August 25, 1995
    ...738-39, 543 S.W.2d at 921. In one case the term "village" was described as a small urban community or town. King v. Sweatt, 115 F.Supp. at 221. In Bank of Sun Prairie v. Hovig, 218 F.Supp. 769 (W.D.Ark. 1963) the court stated that "a city is a town and a village is a town, an......
  • In re Weaver, Bankruptcy No. 89-12493M.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Western District of Arkansas
    • January 17, 1991
    ...v. Stevens, 260 Ark. at 738-39, 543 S.W.2d at 921. One court has defined a village as a small urban community or town. King v. Sweatt, 115 F.Supp. at 221. The question of whether a homestead is urban property is not "altogether controlled by the corporate limits," thus property lo......
  • Request a trial to view additional results
6 cases
  • Association of Westinghouse v. Westinghouse El. Corp., No. 10954.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 28, 1954
    ...Telegraph Co., 6 Cir., 1950, 179 F.2d 535. See also Food & Service Trades Council v. Retail Associates, Inc., D.C. N.D.Ohio 1953, 115 F.Supp. 221. In the former case, the Sixth Circuit held that there was federal-question jurisdiction under Section 301(a) to entertain a suit by the unio......
  • United Steelworkers of America v. New Park Min. Co., No. C-26-58.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • December 16, 1958
    ...17 v. Mason & Hanger Co., supra. Food & Service 169 F. Supp. 115 Trades Council v. Retail Associates, D.C. N.D.Ohio, W.D., 1953, 115 F.Supp. 221, favorable to plaintiff's views, was relied upon by the union when Westinghouse was before the lower court. Association of Westinghouse Sa......
  • In re Evans, Bankruptcy No. 94-50037M.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Eastern District of Arkansas
    • August 25, 1995
    ...738-39, 543 S.W.2d at 921. In one case the term "village" was described as a small urban community or town. King v. Sweatt, 115 F.Supp. at 221. In Bank of Sun Prairie v. Hovig, 218 F.Supp. 769 (W.D.Ark. 1963) the court stated that "a city is a town and a village is a town, an......
  • In re Weaver, Bankruptcy No. 89-12493M.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Western District of Arkansas
    • January 17, 1991
    ...v. Stevens, 260 Ark. at 738-39, 543 S.W.2d at 921. One court has defined a village as a small urban community or town. King v. Sweatt, 115 F.Supp. at 221. The question of whether a homestead is urban property is not "altogether controlled by the corporate limits," thus property lo......
  • Request a trial to view additional results

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