TOOL & DIE MAKERS, ETC. v. General Elec. Co. X-Ray Dept.

• Decision Date: 03 March 1959
• Docket Number: 58-C-273.,No. 58-C-272,58-C-272
• Parties: TOOL AND DIE MAKERS LODGE NO. 78 INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, an unincorporated labor organization, Complainant, v. GENERAL ELECTRIC COMPANY X-RAY DEPARTMENT, a corporation, Respondent. X-RAY LODGE NO. 1916, DISTRICT NO. 10 INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, an unincorporated labor organization, Complainant, v. GENERAL ELECTRIC COMPANY X-RAY DEPARTMENT, a corporation, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

170 F. Supp. 945

TOOL AND DIE MAKERS LODGE NO. 78 INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, an unincorporated labor organization, Complainant, v. GENERAL ELECTRIC COMPANY X-RAY DEPARTMENT, a corporation, Respondent.

X-RAY LODGE NO. 1916, DISTRICT NO. 10 INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, an unincorporated labor organization, Complainant, v. GENERAL ELECTRIC COMPANY X-RAY DEPARTMENT, a corporation, Respondent.

Nos. 58-C-272, 58-C-273.

United States District Court E. D. Wisconsin.

March 3, 1959.

Robert E. Gratz, Milwaukee, Wis., for complainants.

Quarles, Herriott & Clemons, Milwaukee, Wis., for respondent.

Stewart G. Honeck, Atty. Gen., amicus curiae for Wisconsin Employment Relations Board.

TEHAN, Chief Judge.

On August 6, 1958, complainants (labor organizations representing employees in a business affecting commerce) filed two complaints with the Wisconsin Employment Relations Board (hereinafter referred to as the Board), each complaint alleging that the respondent, the employer, has engaged and is engaging in unfair labor practices within the meaning of the Wisconsin Employment Peace Act, more particularly Section 111.06(1) (f), Wisconsin Statutes, in that the respondent has violated the existing collective bargaining agreement between the parties. Hearings were scheduled by the Board for September 15, 1958, at 10:00 o'clock A.M., and notices of hearing were mailed to the respondent on August 21, 1958.

On August 27, 1958, before further action was taken by the Board, respondent filed petitions for removal of the two cases in this court; on September 9, 1958, complainants filed motions to remand. Briefs were filed by the complainants, the respondent, and the Board as amicus curiae.

Respondent bases its right to removal on Section 1441 of Title 28 U.S.C. which provides:

"§ 1441. Actions removable generally

"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

"(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

We shall first test whether these actions are actions "of which the district courts of the United States have original jurisdiction". The Unions here involved have initiated proceedings before the Board alleging breaches of contract by the employer which they denominate "unfair labor practices" in conformity with the language of the Wisconsin Employment Peace Act.¹

It is the position of the respondent here that although the complainants do allege unfair labor practices it is clear that the actions in reality are simple suits based on alleged breaches of contract and the issue in each case is whether the employer has violated the terms of the collective bargaining contract. Respondent asserts further that the district courts of the United States have original jurisdiction of actions for violation of labor contracts by virtue of Section 301(a) of the Labor Management Relations Act of 1947 and they are therefore removable.

Section 301(a) of the Labor Management Relations Act (29 U.S.C.A. § 185(a)) provides:

"§ 185. Suits by and against labor organizations—Venue, amount, and citizenship

"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, 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."

There has been considerable litigation involving Section 301, and the various courts of appeals and trial courts have construed it differently in respect of whether Section 301 (a) was purely jurisdictional or whether it was the source of substantive law. The Supreme Court, however, in the case of Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972, resolved the question with its holding that Section 301(a) was more than jurisdictional, that it authorized federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements.

The complainant Unions, however, state that the established test under 28 U.S.C. § 1441 is dependent upon the court having original jurisdiction of the subject matter of the action, and that since the alleged breaches of contract asserted here affect peculiar individual rights and benefits accruing to union members, as distinguished from violations which affect the Union as an entity, the federal court has no jurisdiction of the subject matter here under the doctrine of Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 1955, 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510.

It appears, therefore, that the significant questions presented by the removal of these cases and the subsequent motions to remand are the following:

1. Is the Westinghouse case controlling, or does the later Lincoln Mills decision have greater application to the facts herein presented?

2. If the cases here under consideration are governed by the rationale of the Lincoln Mills decision, does the fact that State proceedings were initiated as state unfair labor practice charges before a state administrative body, rather than as common law actions in the State court, defeat the right of removal which would otherwise exist?

Federal courts, labor lawyers and legal scholars alike have been confounded in their attempts to distill from the Westinghouse case the precise holding in that case. The difficulty arises from the fact that the "majority" opinion, if it may be called such, is joined in by but three justices, and the author of that opinion in his dissenting opinion in the Lincoln Mills case seems by reasonable implication in that dissenting opinion to view the majority opinion in the Lincoln Mills case as denying any further vitality to the Westinghouse case.

In the Westinghouse case, the Union sued to recover unpaid wages on behalf of some 4,000 employees. The basic question concerned the standing of the Union to sue and recover on those individual employment contracts. The court held that such violations gave a cause of action to the individual employee and not to the Union.

The sum of the Westinghouse case seems to be that Section 301 may not be invoked to enforce "the uniquely personal rights" of employees or when the Union seeks to sue and recover on the "individual employment contracts." Textile Workers Union of America v. Lincoln Mills, etc., 353 U.S. 448, 456, note 6, 77 S.Ct. 912, 917, 923, 1 L.Ed.2d 972.

The violations of the terms of the collective bargaining agreements set forth in the complaints herein are the unilateral changing of the seniority of one employee adversely affecting other employees (58-C-272) and failure to pay proper vacation pay, violation of seniority rights, dissolution of Department "F", failure to place a Floor Inspector on a particular job, and changing incentive rates (58-C-273).

While it is difficult to analyze all the implications of the instant Unions' complaints before the Board, it seems clear that most of the alleged contract violations could very well affect rights of the employees as a whole as distinguished from "uniquely personal rights" such as arise under individual employment contracts. Violations of seniority provisions do not affect a single employee. Rather, the upgrading of one may lead to the downgrading of another; the granting of promotional or other seniority rights (preference in layoff or recall) to one group of employees under one interpretation of the contract may well lead to unfair discrimination to others under a contrary interpretation. The closing of a department or failure to provide a Floor Inspector clearly are not violations of "uniquely personal rights."

We subscribe to the summation made in respondent's brief of the scope, impact and implications of the particular problems involved in this action:

"Seniority provisions are a prime illustration of a type of collective rights where the personal rights and status of any individual are dependent on the corollary rights of other members of the collective bargaining unit. An adjustment in the seniority rights of any individual may affect the relative rights of many other employees. The collective nature of seniority rights makes it imperative that the contract rights of all members of the collective bargaining unit be administered by a single representative.

"* * * the grievance over the dissolution of Department F * * * involves no personal rights whatever but is entirely a matter between the union and the

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