L. Fatato, Inc. v. Beer Drivers Local Union 24, Civ. No. 10895.

• Decision Date: 31 October 1950
• Docket Number: Civ. No. 10895.
• Parties: L. FATATO, Inc. v. BEER DRIVERS LOCAL UNION 24 OF INTERNATIONAL UNION OF BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, CIO.
• Court: U.S. District Court — Eastern District of New York

93 F. Supp. 481

L. FATATO, Inc. v. BEER DRIVERS LOCAL UNION 24 OF INTERNATIONAL UNION OF BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, CIO.

Civ. No. 10895.

United States District Court E. D. New York.

October 31, 1950.

Charles M. Graham, Brooklyn, N. Y., for plaintiff.

I. Philip Sipser, New York City, for defendant.

GALSTON, District Judge.

The defendant by motion seeks an order dismissing the action on the ground that the court lacks jurisdiction, because it appears on the face of the complaint, and from the affidavit of William Greenstein supporting the motion, that the controversy is not one wholly between citizens of different states in that both plaintiff and defendant are citizens of the State of New York.

The action was brought pursuant to the provisions of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq.

The plaintiff is a dealer in beer and is engaged in interstate commerce because eighty-five per cent. thereof is shipped to plaintiff's place of business in this district from points outside the State of New York. His sales consist of wholesale deliveries and distributions, directly or through subdistributors, to grocery stores, taverns, bars and grills, and other retail outlets in the City and State of New York. The business is of considerable volume, exceeding $1,000,000 for the year 1949.

The defendant is a labor union and maintains its principal office in Brooklyn in this district. It is alleged in the complaint that beginning on April 10, 1950, and continuously thereafter, the defendant in the course of a labor dispute with the plaintiff, and in the furtherance of a strike, called by the defendant against the plaintiff, arising out of such labor dispute, engaged in activities declared to be unlawful by section 303 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 187(a), in that the defendant induced employees employed at numerous retail outlets to engage in a concerted refusal in the course of their employment to sell or otherwise handle beer supplied by the plaintiff or its sub-distributors, with the object of compelling their employers, the owners of such retail outlets, to cease doing business with the plaintiff and its sub-distributors. Defendant, it is also alleged, has induced employees of the brewers supplying beer to the plaintiff to engage in a concerted refusal to work on or transport or handle beer for shipment to the plaintiff, with the object of compelling the brewers to cease doing business with the plaintiff.

The basic issue of this motion is whether jurisdiction depends on diversity of citizenship. The contention is that since there is no such diversity here, jurisdiction is lacking. On the other hand, the plaintiff urges that if the acts complained of fall within the framework of the Labor Relations Act, diversity of citizenship is not a prerequisite to jurisdiction.

Almost the same situation is disclosed in a case recently decided in the Southern District of New York by Judge Clancy, Banner Mfg. Co., Inc., v. United Furniture Workers of America et al., D.C., 90 F.Supp. 723. I find myself in entire accord with that decision.

29 U.S.C.A. § 187 reads:

"(a) It shall be unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, * * * or otherwise handle * * * any goods * * * or to perform any services, where an object thereof is —

"(1) forcing or requiring any employer * * * or other person to cease using, selling * * * or otherwise dealing in the products of any other producer * * *.

* * * * * *

"(b) Whoever shall be injured in his business or property by reason or any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, * * *."

There is nothing said, in this subdivision (b) of section 303, about diversity of citizenship as a prerequisite for establishing jurisdiction; and there is no reason for reading it into the section unless "the limitations and provisions of section 185" of the Act force that conclusion. Section 185 has to do with suits by and against labor organizations. Subdivision (a) provides that any suits for violation of contracts between an employer and a labor organization, or between labor organizations themselves, 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. Certainly nothing therein compels a construction of section 187...