Norton Coal Co. v. UMW OF AMERICA, DISTRICT 28, UMWA

• Citation: 387 F. Supp. 50
• Decision Date: 02 December 1974
• Docket Number: Civ. A. No. 74-314.
• Court: U.S. District Court — Western District of Virginia
• Parties: NORTON COAL COMPANY v. UMW OF AMERICA, DISTRICT 28, UMWA, et al.

387 F. Supp. 50

NORTON COAL COMPANY v. UMW OF AMERICA, DISTRICT 28, UMWA, et al.

Civ. A. No. 74-314.

United States District Court, W. D. Virginia, Abingdon Division.

December 2, 1974.

Mullins, Winston & Roberson, Norton, Va., for Norton Coal Co. Inc.

William G. Petty, White, Elliott & Bundy, Abingdon, Va., for UMWA Local 1476.

OPINION AND ORDER

TURK, Chief Judge.

Petitioner Norton Coal Company initially filed this case in the Circuit Court of Dickenson County seeking temporary and permanent injunctive relief restraining defendants from engaging in certain activities which would allegedly cause or encourage its employees to refuse to work and hinder it in the performance of its contracts. On November 22, 1974 defendants removed the case to this court pursuant to 28 U.S.C. § 1441, and the issue now before the court is whether it should be remanded to the state court pursuant to 28 U.S.C. § 1447(c).¹

Petitioner alleges that the defendants, who are engaged in labor organizing activities on behalf of the United Mine Workers of America which is presently on strike, have violated its employees right to work and its right by attempting to close down its non-union mine. Petitioner specifically alleges that defendants interfered with the right to work of one of its employees, Thelmer Cantrell, by tricking him into stopping his truck and, thereafter, beating and seriously injuring him. Petitioner also alleges that defendants fired bullets over its banner on November 19, 1974. These actions are alleged to be in violation of § 40.1-53² of the Code of Virginia. Petitioner prays that the defendants be enjoined from all picketing on public highway rights of way, petitioner's properties or combination which may obstruct, or interfere with normal operations and free ingress and egress of its mine and tipple in Dickenson County, Virginia; from locating pickets in any manner so as to encourage and induce its employees to refuse to cross the path of the pickets; from any activities which would encourage or cause its employees to refuse to work; or from any picketing or related activities which might threaten or deny the right to work of any of its employees; and to decree that defendants exercise all authority to obtain compliance with the injunction.

Pursuant to 28 U.S.C. § 1441 an action brought in state court may be removed if the district courts of the United States have original jurisdiction of the action. In their initial petition for removal defendants asserted that this court had original jurisdiction of the action under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). However, in their amended petition for removal they asserted that original jurisdiction existed under section 7 of the Labor Management Relations Act, 29 U.S.C. § 157, and apparently relying on 28 U.S.C. § 1331, stated that the action involved a denial of their constitutional guarantees of free speech and peaceful assembly and the amount in controversy exceeded $10,000.

The fact that petitioner's complaint is characterized in terms of a violation of the state right-to-work law is not determinative of whether this court has original jurisdiction — the issue is rather whether the facts alleged in the complaint bring it within the original jurisdiction of this court. Beeler v. United States, 338 F.2d 687, 689 (3d Cir. 1964). The issue is thus whether the allegations that defendants are responsible for certain acts of violence which interfere with its employees' right to work and the performance of its contracts state a claim which is within the original jurisdiction of this court.

It is clear that this suit does not state a claim under section 301(a) of the Labor Management Relations Act since this section confers jurisdiction to this court over controversies involving alleged violations of collective bargaining agreements. No such alleged violations are involved in this case.

Defendant's reliance on section 7 of the Labor Management Relations Act, 29 U.S.C. § 157, for the purpose of establishing the court's original jurisdiction is also misplaced. This section establishes the substantive rights of employees to engage in concerted labor activities and does not confer jurisdiction. It is true that the allegations in petitioner's complaint state an unfair labor practice, 29 U.S.C. § 158(b), which would ordinarily require that the case be preempted by the NLRB, 29 U.S.C. § 160. But it is clear that this fact alone does not confer jurisdiction on this court. This court has original jurisdiction over cases involving violations of collective bargaining contracts, 29 U.S.C. § 185 and secondary boycotts, 29 U.S.C. § 187, neither of which are alleged here. If in fact the case is preempted, original jurisdiction is with the NLRB and not this court.

Insofar as defendants are asserting that this case may be said to "arise under" the Constitution or laws of the United States, 28 U.S.C. § 1331 or "any Act of Congress regulating commerce," 28 U.S.C. § 1337, by reason of the preemption issue, the court cannot agree. Petitioner's complaint alleges violations of state law based on acts of violence. There can be little doubt that by way of response to the complaint and particularly to the relief sought, defendants will raise issues of federal preemption and First Amendment protection. However the fact that such issues are involved in the case does not satisfy the jurisdictional requisite that the case "arise under" federal law. See e.g., Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). A thorough and able discussion of the jurisdictional issue in the context of a case factually indistinguishable from the case at bar is found in Acme Markets Inc. v. Retail Store Employees Union, 231 F.Supp. 566 (D.Md.1966). The court believes that case to be clearly correct in its statement of the law and its conclusion that a suit seeking injunctive relief under state law based on allegations of violence does not arise under the laws of the United States and hence may not be removed. Accord, Dow Chemical Co. v. District 50 Allied and Technical Workers, 315 F.Supp. 427 (D.Colo. 1970).

As noted in Acme Markets, Inc. and Dow Chemical Co., supra, where a complaint alleges acts of violence, federal labor law does not preclude the states from enjoining such conduct. This is clear from a consideration of United Auto Workers v. Wisconsin Employment Relations Board, 351 U.S. 266, ...