Irving Subway Grating Co. v. Silverman, Civ. No. 13877.

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Citation: 117 F. Supp. 671
• Docket Number: Civ. No. 13877.
• Parties: IRVING SUBWAY GRATING CO., Inc. v. SILVERMAN et al.
• Decision Date: 22 December 1953

117 F. Supp. 671

IRVING SUBWAY GRATING CO., Inc.
v.
SILVERMAN et al.

Civ. No. 13877.

United States District Court E. D. New York.

December 4, 1953.

On Motion for Reargument December 22, 1953.

117 F. Supp. 672

Kenneth B. Ray, New York City, Nicholas M. Selinka, New York City, of counsel, for plaintiff.

Schuman, Giaccone, Dorn & Marcus, New York City, Asher Marcus, Francis X. Giaccone, New York City, of counsel, for defendants.

BRUCHHAUSEN, District Judge.

The defendant moved to dismiss the complaint and to dissolve the injunction granted by the New York State Court upon the ground that the granting of relief as prayed for in the complaint constituted a violation of the provisions of the National Labor Relations Act of 1947, Title 29 U.S.C.A. § 151, commonly called The Taft-Hartley Act. The plaintiff by cross-motion demanded that the case be remanded to the State Court.

The action originated in the State Court, the Supreme Court of the State of New York, and was removed to this Court upon the petition of the defendants, wherein they claimed, in substance, that the action involved a federal question and was removable under Title 28 U.S.C.A. § 1441. The plaintiff contends that the action should be remanded, pursuant to Title 28 U.S.C.A. § 1447, upon the grounds that the aforesaid removal was improvident and without jurisdiction.

Both motions raised the question of the jurisdiction of this Court as to the action.

The plaintiff, a manufacturer of steel flooring products, commenced this action in the said State Court against the defendants, officers and members of a labor organization, and demanded an injunction, restraining the defendants from committing alleged tortious acts, and damages in connection therewith. Shortly prior to the removal of the case to this Court, the plaintiff procured a temporary injunction in the New York State Supreme Court which was continued by the Appellate Division, Second Department.

It is essential that the allegations of the complaint be examined and considered for a proper determination of the jurisdictional question.

The plaintiff, in the complaint, alleges in substance that it is a New York corporation, engaged in a business substantially affecting interstate commerce as defined by the National Labor Relations Act of 1947, as amended, that the defendant is a labor union, known as Local 810, Steel, Metal, Alloys and Hardware Fabricators and Warehousemen, Affiliated with the International Brotherhood of Teamsters, A. F. of L. (hereinafter called uncertified Local 810), that the plaintiff has had a collective bargaining agreement with a union known as Local 2504 of the United Steelworkers of America, that the said Local 2504 is the certified

117 F. Supp. 673

union of employees of the plaintiff, for collective bargaining purposes (which latter union is hereinafter called certified Local 2504), that pursuant to the said certification, the plaintiff, in 1941, entered into a collective bargaining agreement with certified Local 2504 concerning the terms and conditions of employment in its plant, that the agreement was renewed from time to time until October 20, 1952, at which time the plaintiff entered into a second agreement with the said certified Local 2504, which latter agreement terminated on October 1, 1953, and was renewed by written agreement, dated August 17, 1953, that on August 13, 1953, at 7:30 A.M., representatives of uncertified Local 810, including the individual defendants, appeared at the gates of the plaintiff's Long Island City plant urging its employees not to report for work, that some of the said representatives carried picket signs, alleging unfair practices on the part of the plaintiff with respect to the defendant uncertified Local 810, that these acts were deliberately performed with the purpose of confusing the plaintiff's employees and caused them to return home on that day, resulting in an interruption of business, that these practices were continued the following day, August 14, 1953, on which day, certified Local 2504 held its union meeting and instructed its representatives to enter into a collective bargaining agreement with the plaintiff, that the agreement was consummated, that on August 18, 1953, uncertified Local 810 filed a petition with the National Labor Relations Board asking that it be certified as the bargaining agent of the plaintiff's employees, that a few days thereafter uncertified Local 810 also filed unfair labor practice charges against the plaintiff, that on August 26, 1953, the plaintiff filed unfair labor practice charges against uncertified Local 810, which charges are now pending and that the National Labor Relations Board advised the plaintiff to seek injunctive relief in the State Court. Thus, both the plaintiff and the defendants have charged each other with unfair labor practices, as defined in the said National Labor Relations Act

The plaintiff further alleges, in paragraph twenty-sixth of the complaint, that, in the process of such activities, the defendants wilfully, maliciously, and with intent to interfere, injure and damage the plaintiff's business, trade, property and goodwill and employee relations, have regularly, systematically and recurrently engaged in unlawful conduct and activities, summarized as follows:

a. Picketing in front of the plant.

b. Mass picketing, including molesting, coercion, threats.

c. Using insulting, degrading, profane language.

d. Trailing employees on the streets, and to their homes, assaulting them, threatening physical violence to them and their families.

e. Exhorting others not to haul and deliver for plaintiff.

f. Approaching, molesting, frightening, intimidating, coercing by violence, and by fraudulent and misleading statements to employees of the railroads and barge workers, designed to induce them to refrain from servicing plaintiff.

g. Picketing by organizers, including the defendants, to promote the alleged conduct.

h. Urging plaintiff's employees not to report for work at plaintiff's plant, urging them to break their contract with plaintiff.

i. Inducing employees at plaintiff's Long Island City plant to remain away from work, strike and receive "strike benefits".

The plaintiff also alleges that all of the said acts were and are designed for the purpose of coercing it to recognize the defendants' union as the collective bargaining agent for the plaintiff's employees without an election, and despite the fact that a petition for certification on behalf of uncertified Local 810 is currently

117 F. Supp. 674

before the National Labor Relations Board. The plaintiff, in the second cause of action, charges that the defendants and others conspired to accomplish the aforementioned purpose through the said acts. Injunctive relief is sought by the third cause of action. Judgments for damages are demanded in the other causes of action

In brief, the plaintiff (a New York resident) claims that it has a collective bargaining agreement with certified Local 2504, that it is being interfered with and conspired against by uncertified Local 810 and others (also New York residents) by acts of violence, that unfair labor practices, as defined by the National Labor Relations Act, are involved, that the plaintiff has complained to the Board, respecting such practices and that uncertified Local 810 has also complained to the Board. The plaintiff instituted this action in the State Court (later removed to this Court) for injunctive relief and damages, based on alleged violations of State law, which may also constitute a violation of 29 U.S.C.A. § 158(b) (1), (4) (A, C).

It appears that the plaintiff made a motion in the action, in the State Court, for a temporary injunction. Mr. Justice Colden by decision, dated October 1, 1953, granted the motion, relying upon the case of Art Steel Co. v. Velazquez, 280 App.Div. 76, 111 N.Y.S.2d 198, holding that the State Court may enjoin strikes, involving violence, even though the conduct may involve a specific unfair labor practice under the National Labor Relations Act and that the mere fact that a labor practice, as defined in the Act, is involved does not deprive the State Court of jurisdiction. This, then, is the fundamental question presented by the plaintiff's cross-motion to remand the action to the State Court, and the defendants' motion to dissolve the State injunction and to dismiss the complaint.

The defendant uncertified union relies upon the case of Costaro v. Simons, 302 N.Y. 318, 98 N.E.2d 454, for the principal that primary redress is from the National Labor Relations Board and secondary redress from the Federal Court under these specific facts. The authority cited is inapplicable in that the case involved an injunction restraining the breach of a collective bargaining agreement between the parties and this was within the jurisdiction of the National Labor Relations Board. In the case at bar, the defendants did not have that status. In the case of Art Steel Co. v. Velazquez, supra 280 App.Div. 76, 111 N.Y.S.2d 203, it is correctly pointed out that nothing in the case of Costaro v. Simons "prevents us from exercising jurisdiction in a case where violence is found to exist." The New York State courts have asserted jurisdiction in cases involving violence even though an enumerated Federal unfair labor practice was involved. This Court must test the validity of such assertion, and whether or not an action for damages may be maintained.

The defendants also cite the case of Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234, reversing the New York Court of Appeals, 295 N.Y. 601, 64 N.E.2d 350, in support of the contention that "with respect to labor management matters which affect interstate commerce, the state tribunal was pre-empted of its powers by the federal statutes on the subject of labor-management relations." An examination of that case establishes that the theory and...