California Packing Corp. v. ILWU LOCAL 142

• Citation: 253 F. Supp. 597
• Decision Date: 10 May 1966
• Docket Number: Civ. No. 2529,2530.
• Parties: CALIFORNIA PACKING CORP., Complainant, v. I.L.W.U. LOCAL 142, Respondent. Herbert H. TANIGAWA, Hearings Officer, for and on Behalf of the Hawaii Employment Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION LOCAL 142, Respondent.
• Court: U.S. District Court — District of Hawaii

253 F. Supp. 597

CALIFORNIA PACKING CORP., Complainant, v. I.L.W.U. LOCAL 142, Respondent.

Herbert H. TANIGAWA, Hearings Officer, for and on Behalf of the Hawaii Employment Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION LOCAL 142, Respondent.

Civ. Nos. 2529, 2530.

United States District Court D. Hawaii.

May 10, 1966.

L. H. Silberman, Honolulu, Hawaii, for California Packing Corp., complainant.

Herbert H. Tanigawa, Hawaii Employment Relations Board, Honolulu, Hawaii, for petitioner.

Edward H. Nakamura, Honolulu, Hawaii, Bouslog & Symonds, Honolulu, Hawaii, of counsel, for respondents.

TAVARES, District Judge.

Late in April of this year California Packing Corporation (C.P.C.) brought a complaint before the Hawaii Employment Relations Board (H.E.R.B.) alleging that International Longshoremen's & Warehousemen's Union Local 142 (I.L.W.U.) was guilty of unfair labor practices in that the union caused a strike in violation of the "no strike pledge" of the collective bargaining agreement in force between those parties.

The H.E.R.B. conducted an investigation and, finding that there was reasonable cause to believe that the union had caused a strike in violation of its agreement with C.P.C. and in violation of Hawaii law pertaining to strikes, the H.E. R.B. petitioned the First Circuit Court of the State of Hawaii for a temporary restraining order and an order to show cause why an injunction should not be granted against the striking union. The Hawaii court granted a temporary restraining order and issued an order to show cause. Thereupon the union purported to remove the H.E.R.B.'s action to this Court, and in a separate action purported to remove to this Court C.P.C.'s complaint before the H.E.R.B. Having completed the formalities of the removal process, the union then moved to dismiss both actions on the ground that this Court does not have jurisdiction to grant the relief sought by C.P.C. and the H.E. R.B.

C.P.C. and the H.E.R.B. move to remand, contending that the actions were improvidently removed, and that in any event, this Court lacks jurisdiction to proceed.

This Court observes at the outset that the authorities uniformly emphasize that doubts must be resolved against removal, and that the burden is on the party attempting removal to justify the grounds for it.

It is also very clear that the attempt to remove C.P.C.'s action before the H.E.R.B. is wide of the mark. The entire series of code sections dealing with removal refer only to removal from state courts, and not to removal from administrative bodies. 28 U.S.C. § 1441, entitled "Actions Removable Generally," refers only to "* * * any civil action brought in a State court * * *." 28 U.S.C. § 1446, entitled "Procedure for Removal," provides:

"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court * * *."

28 U.S.C. § 1447 is replete with references to removal from a State court, and plainly does not contemplate procedures involving administrative bodies.

One district court case, Tool & Die Makers, etc. Association of Machinists v. General Electric Company X-Ray Department, (E.D.Wis.1959) 170 F. Supp. 945, which stands alone, permits removal of a matter pending before the Wisconsin Employment Relations Board. That court cited no other removal cases, and the reasoning of the reported opinion (see pages 950-951) appears to this Court to be strained. Furthermore, that case was decided prior to several important decisions on the subject of removal of labor cases, such as Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440, and American Dredging Company v. Local 25, (3 Cir. 1964) 338 F.2d 837, and it may well be that the Wisconsin court would now reach a different result in the light of these later decisions of the higher courts. Therefore, it is the opinion and conclusion of this Court that the motion of C.P.C. to remand must be granted.

With regard to the removal of the H.E.R.B.'s Circuit Court action, although there is some division of authority, the great majority of the cases have decided, and this Court concurs, that to permit removal purely for the purpose of dismissing the action so removed, is an exercise in futility. Further, a cause can be removed only if the district court would have had original jurisdiction of the matter, and it is abundantly clear that the Norris-LaGuardia Act deprived the district courts of their jurisdiction over labor litigation in which an injunction is sought.

The union's position here is that § 301 of the Labor Management Relations Act of 1947 (29 U.S.Code § 185) gives this Court jurisdiction of the "subject matter" of the labor dispute, but that the Norris-LaGuardia Act requires its dismissal. But as Judge Kalodner, speaking for the majority, said in American Dredging Co. v. Local 25, etc. (3 Cir. 1964) 338 F.2d 837, 842:

"To say then that a District Court has subject matter jurisdiction of a cause of action, so as to authorize it to take cognizance of it under the provisions of the Removal Statute, when it does not in the first place have jurisdiction to entertain and decide it upon its merits, is to give sanction to an exercise in futility."

In the litigation involving Richman Brothers Co. v. Amalgamated Clothing Workers of America, 114 F.Supp. 185, (D. Ohio 1953) Reconsideration denied, 116 F.Supp. 800; 348 U.S. 311, 75 S.Ct. 452...