Sheet Metal Workers Intern. Ass'n, AFL-CIO v. Seay, AFL-CI

• Decision Date: 24 November 1982
• Docket Number: P,R,No. 275,No. 82-2318,AFL-CI,275,82-2318
• Citation: 693 F.2d 1000
• Parties: 111 L.R.R.M. (BNA) 3118, 95 Lab.Cas. P 13,876 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,etitioner, v. Honorable Frank H. SEAY, District Judge of United States District Court for the Eastern District of Oklahoma; Acme Engineering & Manufacturing Corp.; Sheet Metal Workers Local, its Officers Agents, Representatives, Employees, and Members; John H. Barton, individually and as Business Manager of Sheet Metal Workers Local, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1000

693 F.2d 1000

111 L.R.R.M. (BNA) 3118, 95 Lab.Cas. P 13,876

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. Honorable Frank H. SEAY, District Judge of United States

District Court for the Eastern District of Oklahoma; Acme

Engineering & Manufacturing Corp.; Sheet Metal Workers

Local No. 275, its Officers Agents, Representatives,

Employees, and Members; John H. Barton, individually and as

Business Manager of Sheet Metal Workers Local No. 275, Respondents.

No. 82-2318.

United States Court of Appeals, Tenth Circuit.

Nov. 24, 1982.

Rehearing Denied Jan. 5, 1983.

Donald W. Fisher, Toledo, Ohio, and Thomas F. Birmingham, Tulsa, Okl., for petitioner.

Lynn Paul Mattson and Richard L. Barnes, Tulsa, Okl. (Nichols & Wolfe, Inc., Tulsa, Okl., were also on the brief), for respondent and plaintiff below, Acme Engineering & Mfg. Corp.

Thomas F. Birmingham, Tulsa, Okl. (Ungerman, Conner & Little, Tulsa, Okl., also joined in the response), for respondents and defendants below, Sheet Metal Workers Local No. 275, its officers, agents, representatives, employees and members, and John H. Barton, individually and as Business Manager of Sheet Metal Workers Local No. 275.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

This original proceeding for a writ of mandamus pursuant to 28 U.S.C. Sec. 1651 (1970) and Rule 21, FRAP, challenges an order remanding a case to the State court after its removal by petitioner and the other defendants. We are persuaded that the remand order was improperly grounded on considerations not within the bounds of the removal statute, and under standards laid down by the Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542, we conclude that we must grant the writ.

I

Respondent Acme Engineering & Manufacturing Corporation (Acme) brought this action in the State District Court for the 15th Judicial District of Oklahoma, which includes Muskogee County, seeking damages and injunctive relief for an alleged breach of a collective bargaining agreement governing labor-management relations between Acme and the defendant local of the Sheet Metal Workers. Defendants timely filed a petition for removal to the United States District Court for the Eastern District of Oklahoma. The removal petition asserted that because the cause of action involved the collective bargaining agreement, the federal district court had original jurisdiction under Sec. 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. Sec. 185 (1970).

After the removal, Acme filed a motion to remand. In its brief supporting the motion, Acme stated that there was concurrent state and federal court jurisdiction. Nevertheless, Acme contended that the cause should be remanded so that it could have the advantage of "a forum that has full power and authority to grant the kind of relief sought by the pleadings." Acme's concern is that the federal court lacks power to grant injunctive relief against all defendants because of the anti-injunction provisions of the Norris-LaGuardia Act, 29 U.S.C. Secs. 101-114 (1970).

The federal district court granted Acme's motion and remanded the case to the State court. The district judge did not question federal jurisdiction of the matter, nor did he rely on any procedural defects in the removal. ¹ Instead, he noted the limitations on the relief available to Acme in federal court and concluded that "the most equitable forum ... would be the state district court ...." ²

II

Acme vigorously argues that this court is without jurisdiction of this mandamus proceeding because of the bar of 28 U.S.C. Sec. 1447(d) (1970) providing, in pertinent part, that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...."

Notwithstanding the breadth of the bar on review of remand orders, the Supreme Court has held that remand orders may be reviewed where a case was properly removed and a remand order is issued on grounds not authorized by 28 U.S.C. Sec. 1447(c) (1970), governing remands. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542. The restrictions on review in Sec. 1447(d) were read in conjunction with Sec. 1447(c) which provides: "If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case ...."

In Thermtron the district judge had remanded the case to state court because of his overloaded docket. The judge weighed the defendants' right to remove to federal court against the plaintiffs' right to the forum of their choice and their right to a prompt disposition of the matter. He remanded, citing his crowded docket, the priority which other cases had, and the fact that "plaintiffs' right of redress is being severely impaired" which "would not be the case if the cause had not been removed from the state courts." 423 U.S. at 340-41, 96 S.Ct. at 588. The Sixth Circuit concluded that Sec. 1447(d) left it without jurisdiction to consider the remand order on an alternative petition for mandamus or prohibition.

After granting certiorari, the Supreme Court held that the bar of Sec. 1447(d) does not apply when the remand order is issued on grounds not authorized by Sec. 1447(c). Construing subsections (c) and (d) of Sec. 1447 in pari materia the Court concluded that "only remand orders issued under Sec. 1447(c) and invoking the grounds specified therein--that removal was improvident and without jurisdiction--are immune from review under Sec. 1447(d)." 423 U.S. at 346, 96 S.Ct. at 590. The Court further decided that remand orders not based on the statutory grounds are improper and that mandamus is the appropriate remedy to insure that the defendant's right to a federal forum is protected. Id. at 351-53, 96 S.Ct. at 593-94.

III

Acme attempts to distinguish Thermtron, relying on isolated statements in the opinion. The gist of Acme's argument to avoid Thermtron seems to be this: the word "improvidently" is neither defined nor is its meaning obvious; the removal of this case has substantially affected Acme's ability to gain the relief sought; it is inequitable that Acme's right should be restricted by being in federal court when the State court could grant full relief; therefore, the term "improvidently" removed should be interpreted to encompass this case and others in which removal substantially limits the available remedies. Acme contends that the federal courts "have consistently remanded" cases like this one in which removal restricts the remedies available to the plaintiffs, citing Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440; American Dredging Co. v. Local 25, 338 F.2d 837 (3d Cir.); and Ford v. Boger, 362 F.2d 999 (8th Cir.).

Each of these cases preceded Thermtron. Sinclair, overruled in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), is completely inapposite. Sinclair was not a removal case. The Court in Sinclair merely ruled that Sec. 301 of the LMRA did not modify the anti-injunction provision of Norris-LaGuardia. ³ American Dredging was, as defendants have pointed out, expressly disapproved in Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126. Ford was a habeas corpus proceeding seeking relief from state convictions for criminal contempt. The petitioners in Ford contended that the state court was without jurisdiction to enjoin their activities because petitioners were members of a labor organization and the federal courts had exclusive jurisdiction over the controversy. The Eighth Circuit held that, even if there were a labor dispute involved, federal jurisdiction was not exclusive and state courts could give injunctive relief in proper circumstances. Thus Ford merely underscores the deprivation of remedy that Acme faces; it does nothing to resolve the issues we face on this petition.

Even though Acme admits jurisdiction of the case as removed in some respects, it argues that the federal district court was without jurisdiction to entertain the claim for injunctive relief and therefore was compelled to remand. Again Acme relies on cases that are no longer authoritative. The argument that the district courts are without jurisdiction to hear labor cases in which injunctive relief is sought, based on the use of the term "jurisdiction" in the Norris-LaGuardia Act, ⁴ was put to rest by the Supreme Court in Avco.

Avco is quite similar to the instant case and authoritatively decides this issue. In Avco the plaintiff had filed suit in state court and obtained an ex parte injunction. As in this case, the controversy concerned an alleged violation of the "no-strike" clause of a collective bargaining agreement. The defendant removed to the federal district court, which dissolved the injunction. The district court then denied a motion for remand, holding that it had jurisdiction, and the Sixth Circuit affirmed. Certiorari was granted to resolve the conflict of these holdings with American Dredging. In unanimously affirming the Sixth Circuit, the Supreme Court held that federal jurisdiction was properly founded on Sec. 301 of the LMRA, that the case was accordingly controlled by federal substantive law, and that removal was "but one aspect of 'the primacy of the federal judiciary in deciding questions of federal laws.' See England v. Medical Examiners, 375 U.S. 411, 415-416 [84 S.Ct. 461, 465, 11 L.Ed.2d 440]." 390 U.S. at 560, 88 S.Ct. at 1237. Addressing specifically the jurisdictional argument based on Norris-LaGuardia, the Court said The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy. The relief in Sec. 301 cases varies--from specific performance of the promise to arbitrate (...