Camden Industries Co. v. CARPENTERS LOCAL UNION NO. 1688

• Decision Date: 18 May 1965
• Docket Number: Civ. A. No. 2556.
• Parties: CAMDEN INDUSTRIES COMPANY, Inc. v. CARPENTERS LOCAL UNION NO. 1688, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Gerald P. Archambault, Teodor Bryl and Antonio J. Demers.
• Court: U.S. District Court — District of New Hampshire

246 F. Supp. 252

CAMDEN INDUSTRIES COMPANY, Inc. v. CARPENTERS LOCAL UNION NO. 1688, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Gerald P. Archambault, Teodor Bryl and Antonio J. Demers.

Civ. A. No. 2556.

United States District Court D. New Hampshire.

May 18, 1965.

COPYRIGHT MATERIAL OMITTED

Booth, Wadleigh, Langdell, Starr & Peters, Ralph E. Langdell, Manchester, N. H., for plaintiff.

Edward J. McDermott, Hampton, N. H., Segal & Flamm, Arthur J. Flamm, Boston, Mass., for defendants.

CONNOR, District Judge.

I. Plaintiff's Motion to Remand

Plaintiff is a Delaware corporation qualified to do business in New Hampshire and doing business in Manchester, New Hampshire, as Hermsdorf Fixture Mfg. Co., Inc. Defendant Carpenters Local Union No. 1688 is an unincorporated association. Defendants Archambault, Bryl and Demers are members of the Union. This suit was commenced by plaintiff in the Superior Court of New Hampshire on November 20, 1964. By its complaint, plaintiff sought to enjoin defendants from proceeding to arbitrate certain alleged grievances. On November 23, 1964, the Superior Court for Hillsborough County, per Laughlin, J., temporarily enjoined defendants from proceeding to arbitration, in an ex parte order. There matters apparently stood until January 4, 1965, when defendant Union served interrogatories upon plaintiff which inquired into the interstate character of plaintiff's business. On January 21, 1965, plaintiff advised the Union that it was indeed engaged in interstate commerce. Fourteen days later, on February 4, 1965, defendant Union filed its removal petition in this court.

Defendants removed the case to this court on the ground that the complaint stated a claim cognizable under 29 U.S.C. § 185 (also known as section 301 of the Labor Management Relations Act) in that it involved the arbitrability of an alleged grievance under a collective bargaining agreement. Defendants filed an answer to the complaint and added a counterclaim whereby they seek an order compelling plaintiff to submit the alleged grievances to arbitration.

Plaintiff moved to remand the case to the Superior Court, challenging the timeliness of the removal petition and this court's jurisdiction of the subject matter.

A. Timeliness of the Removal Petition

28 U.S.C. § 1446 prescribes the procedure for removal. Under section 1446 (b), a removal petition ordinarily must be filed within twenty days of receipt by the defendant of the initial pleading or within twenty days of service of a summons upon him, whichever period is the shorter. Clearly, defendants' petition was not filed within this twenty day period. But defendants claim their petition was timely under the second paragraph of section 1446(b). That paragraph reads as follows:

"If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."

Defendant Union contends that plaintiff's participation in interstate commerce was not ascertainable from its initial pleading and until such could be ascertained, the case was not removable. The Union asserts that plaintiff's informal answer to interrogatories, made on January 21, 1965, confirming participation in interstate commerce was the "paper" from which removability of this case could first be ascertained.

29 U.S.C. § 185(a) (section 301 of LMRA) recognizes a suit between a union and an employer if employer and union are "in an industry affecting commerce." It seems clear then, that participation by the parties in an industry affecting commerce, as defined by the LMRA, is a prerequisite to federal jurisdiction over the subject matter. 29 U.S.C. § 142(1) states that "the term `industry affecting commerce' means any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or obstruct commerce or the free flow of commerce." The initial complaint filed by plaintiff in the State court was bare of any indication that the parties were in an industry within this definition and, therefore, the Court concludes that the initial pleading did not state a removable case.

Plaintiff takes the position that regardless of what the initial pleading contained, defendants had actual knowledge that the parties fell within the statutory definition at the time the complaint was filed and, therefore, should not be entitled to the extended period for removal provided in the second paragraph of 28 U.S.C. § 1446(b). Though defendants may in fact have had such knowledge, the Court believes section 1446(b) is unambiguous in providing that the initial pleading itself is to govern, regardless of knowledge a defendant may have. Such a provision is salutary in that it eliminates the time and expense of a preliminary inquiry into the state of mind of a defendant where the issue is merely one of timeliness.

Defendants' interrogatories were obviously framed to elicit an indication that plaintiff was in an industry affecting commerce and plaintiff's informal answer to them must be deemed to have given such an indication. It follows that plaintiff's informal answer was the first "paper" from which it could be ascertained that this matter was removable. Accordingly, defendants' removal petition, filed within twenty days of receipt of plaintiff's informal answer to interrogatories, was timely.

B. Jurisdiction Over the Removed Case

Plaintiff's motion to remand also challenges federal jurisdiction over this case. Plaintiff accurately points out that its action in the State court was a proceeding to stay or prevent arbitration; plaintiff argues that such a proceeding is not "a suit for violation of a contract" between an employer and a union over which 29 U.S.C. § 185 confers original jurisdiction and that, therefore, this court has no removal jurisdiction under 28 U.S.C. § 1441(a). In effect, plaintiff contends that this court has no original jurisdiction over this matter, from which it follows that there can be no removal jurisdiction.

It has been settled ever since the Lincoln Mills case that 29 U.S.C. § 185 confers original jurisdiction on federal courts over actions to compel arbitration of labor contract disputes where one of the parties has refused to arbitrate. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Less clear is whether federal courts have original jurisdiction over declaratory judgment actions or injunction suits to stay arbitration in advance of a formal refusal by a party to arbitrate. But the Court believes that the issues of fact and law would be identical regardless of whether the action were brought to stay or compel arbitration. In both types of action, the primary inquiry would be arbitrability of the dispute in the light of the arbitration provisions agreed to by the parties in their collective bargaining agreement.

The weight of authority favors original federal jurisdiction in actions the purpose of which is to stay arbitration. See cases collected in Black-Clawson Co., Paper Mach. Division v. International Association of Machinists, 313 F.2d 179, 181 (2nd Cir. 1962). Decisions so holding proceed on the theory that the more reasonable reading of 29 U.S.C. § 185 would include a proceeding by a party to determine whether his own conduct would be a violation of the labor contract if he refused to arbitrate. True it is that these decisions deal for the most part with declaratory judgment actions, but the Court is unable to discern any meaningful difference between those cases and the instant case where plaintiff seeks a judicial determination of arbitrability through an injunction suit. Had plaintiff brought this proceeding in this court originally, the Court would have few doubts about its jurisdiction.

The question here is removal jurisdiction and plaintiff has cited two cases which specifically deny federal jurisdiction over removed actions to stay arbitration: Wamsutta Mills v. Pollock, 180 F.Supp. 826 (S.D.N.Y.1960); Hall v. Sperry Gyroscope Co., 183 F.Supp. 891 (S.D.N.Y.1960). However, these decisions proceeded on the theory that an action to stay arbitration was not a "suit for violation of a labor contract" within the meaning of 29 U.S.C. § 185, a theory that the Court rejects in favor of the better reasoned opinions holding otherwise. In fact, the "narrow view" of the Wamsutta and Hall cases was specifically disapproved in the Second Circuit's opinion in the Black-Clawson case, supra, thereby reducing or eliminating any authority Wamsutta and Hall might have supplied.

Plaintiff has not advanced any other grounds for lack of removal jurisdiction other than failure of 29 U.S.C. § 185 to provide original jurisdiction. Since the Court concludes that section 185 does confer original jurisdiction, and since there appears to be no other barrier to removal, the Court concludes that plaintiff's motion to remand should be denied.

II. Motion by Defendants for Summary Judgment

Defendants accompanied their answer with a counterclaim for specific enforcement of the arbitration provisions embodied in the collective bargaining agreement entered by plaintiff and the Union. Now defendants, asserting that no genuine issue of fact remains, seek summary judgment in their favor under Rule 56 of the Federal Rules of Civil Procedure, and an order requiring plaintiff to submit the alleged grievances to arbitration.

Upon the pleadings and other materials on file, together with matters brought out at the hearing on this motion, the Court finds the following facts to be undisputed.

1. On May 6, 1963, Hermsdorf Fixture Mfg. Company, a division of Camden Industries Company, Incorporated (plaintiff), entered into a collective bargaining agreement (Agreement)...