The opinion of the court was delivered by: SUGARMAN
On October 4, 1955, plaintiff commenced an action based upon 'Section 301 of the Labor Management Relations Act, 1947, U.S.C. Title 29, Section 185, hereinafter referred to as the 'Act', and the Federal Declaratory Judgment Act, Section 247(d) of the Judicial Code, as amended, U.S.C. Title 28, Section 400'.
The complaint alleges inter alia that on November 30, 1954, plaintiff and defendant entered into an agreement affecting the employment by defendant of certain professional employees belonging to plaintiff union. After claiming a violation of the agreement by defendant, it seeks a judgment.
'a. Interpreting the collective bargaining agreement of November 30, 1954 and declaring that the provisions thereof prevent defendant from transferring or hiring into the occupational classifications listed in Appendix A of said agreement, any employees who do not meet the qualifications of 'professional employee' as defined in Section 2(12) of the Act;
'b. Interpreting the collective bargaining agreement of November 30, 1954 and declaring that the provisions thereof prevent defendant from reducing the minimum qualifications for occupational classifications listed in Appendix A of said agreement below those used for employees in the unit on June 13, 1952;
'c. Granting Plaintiff damages in the sum of $ 200,000;
'd. Awarding plaintiff the costs of this action;
'e. Granting such further and other relief as to this Court seems just and equitable in the premises.'
'1. To dismiss so much of the complaint and to strike out so much of the prayer for relief marked '(a)' as seeks judgment based on the claim that defendant is required to hire or transfer into the occupational classifications of the Agreement attached to the complaint only such employees as meet the qualifications of 'professional employee' as allegedly defined in Section 2(12) of the Labor Management Relations Act, 1947, on the ground that it fails to state a claim against defendant upon which relief can be granted.
'2. To dismiss so much of the complaint and to strike out so much of the prayer for relief marked '(b)' as seeks a declaratory judgment as to the provisions of the Agreement which prevents the Company from reducing the minimum qualifications below those used for employees in the collective bargaining unit on June 13, 1952, on the ground that there is no case or controversy within Article III, Section 2 of the Constitution of the United States and of the Federal Declaratory Judgment Act, 28 U.S.C. Section 2201, because defendant agrees with plaintiff as to the construction of said clause.
'3. To dismiss the complaint on the ground that it fails to state a claim on which relief may be granted, because the Agreement provides for arbitration of litigable disputes and prescribes the procedure to be followed, with which plaintiff has not complied, or in the alternative to stay the action or so much thereof as is not dismissed, pursuant to Section 3 of the U.S. Arbitration Act (9 U.S.C.A. § 3) and Section 1451 of the Civil Practice Act of New York.
'4. To dismiss the complaint for lack of jurisdiction on the ground that there is no diversity of citizenship, no Federal question, and that Section 301 of the Labor Management Relations Act, 1947, does not authorize the maintenance of the present action.
'5. To grant such other and further relief as to this Court may seem just and proper.'
So much of defendant's motion as seeks a dismissal of paragraph 'a' and 'b' of plaintiff's prayer for relief in its complaint is granted for the sole reason that no ...