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O'ROURKE v. BREAKSTONE BROS.

July 3, 1963

John J. O'ROURKE, as Trustee of Dairy Transportation Drivers, Helpers and Terminal Employees, Local 770, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Plaintiff,
v.
BREAKSTONE BROS. INC., Farm & City Trucking Corporation, Frank Hahn & Co. Inc., et al., Defendants, Thomas Thacher, Superintendent of Insurance of the State of New York, Applicant for Intervention



The opinion of the court was delivered by: RYAN

The Trustee of Local 770 has filed suit under Section 301 of the Labor Management Relations Act, 1947 (29 U.S.C.A. 185) to compel defendant employers to account for contributions allegedly due the employee welfare fund and to pay over to plaintiff in trust such amounts as are found due, and to compel defendant Trustees to account for and pay over to plaintiff in trust all contributions received by them and all other funds on deposit with the Orange Trust Company in the name of the Fund, subject to the direction of the Court as to the manner in which they should be applied to effectuate the purposes of the Trust Fund.

The Local Union was dissolved and the plaintiff Trustee appointed by the parent union in 1961; the Fund, by the terms of the collective bargaining agreement of which it was part, came to an end on July 31, 1960 when the collective bargaining agreement terminated; the suit is to recover monies due while the Fund was in existence between 1957 and July 31, 1960. The Fund was wholly supported by employer contributions.

 The Superintendent of Insurance of the State of New York as 'applicant-intervenor' has moved to dismiss the complaint on the ground that the effect of the present action is one to liquidate and terminate the Fund -- an action which, under New York statute, lies exclusively within the jurisdiction of the New York Supreme Court on application of the Superintendent of Insurance. The Superintendent of Insurance moved to intervene in this suit in order to make this motion and intervention was granted without opposition.

 The following proceedings have been instituted in the New York Supreme Court for Albany County and are there now pending:

 On December 7, 1961, the Dairy Transport Association, Inc., an association of employers who was their collective bargaining agent (and is a defendant here) instituted a suit (under Art. 79, N.Y. Civil Practice Act) against the Trustees of the Fund (also defendants here) to terminate the Trust Fund and obtain a return of the monies in the Fund contributed by the employers. On January 18, 1962 that Court entered an order terminating the Fund and directing the Trustees to wind up the Fund and account as prayed.

 On January 26, 1962, the Trustee of the Local filed this suit in this Court (allegedly without knowledge of the pending State Court proceeding) and on March 24, 1962 the said Trustee moved in the State Court to vacate the order of January 1962 and to dismiss the employers' proceeding and to stay all proceedings pending determination of his motion. Finally, in January 1963, the Superintendent of Insurance moved in the same State Court to dismiss all State Court proceedings on the ground that he alone has jurisdiction to liquidate employee welfare funds under the provisions of the New York Insurance Law, Arts. 3-A and XVI. The employer association, the plaintiff in the State suit, opposed that motion on the ground that the Superintendent does not have exclusive jurisdiction.

 These motions of plaintiff employer association, of the Trustee and of the Superintendent of Insurance remain undetermined before Judge Staley of the New York Supreme Court, Albany County; briefs have been filed by the parties.

 Plaintiff does not dispute the characterization of this suit as one to dissolve and liquidate an employee welfare fund within the meaning of Art. 3-A of the New York State Insurance law. He does, however, describe his suit also as one to assert a claim under Section 301 of the Labor Management Relations Act (29 U.S.C.A. 185) to enforce such terms of the collective bargaining agreement as relate to the employees' pension trust fund. As we have seen, his prayer for relief is that he receive and distribute the funds as directed by the Court to effectuate the purposes of the Fund.

 Initially plaintiff did not object to the dismissal of the suit here so long as it was conditioned (a) on a dismissal of the employers' State Court action; (b) on a direction that the Superintendent of Insurance promptly institute liquidation proceedings; and (c) on a direction that he promptly institute proceedings against those employers who allegedly failed to make payments into the Fund as required by the collective bargaining agreement.

 Plaintiff has changed his position and by affidavit now suggests that this Court not dismiss but merely stay determination of this motion to dismiss, pending resolution by the State Supreme Court of Albany County of the Superintendent's similar motion to dismiss the employers' action in that Court.

 The basis of this alternative prayer is that there are undetermined questions of State law which this Court should refrain from passing on until the State Court has had an opportunity to do so.

 Seven of the employer defendants have advised the Superintendent of Insurance and plaintiff's counsel and, through him, the Court, that, while they do not agree that the Superintendent of Insurance has exclusive jurisdiction, they do not oppose his motion to dismiss this suit because the merits of the Superintendent's position are before the New York Supreme Court.

 The Superintendent of Insurance opposes the stay on the ground that the New York law is well settled and states that, upon dismissal of the instant suit, he will apply for an order of liquidation of the Fund in the Supreme Court, Orange County, Ninth Judicial District, where the funds in dispute are now on deposit in a bank.

 The concurrent jurisdiction of the federal and state courts over suits to enforce the terms of the collective bargaining agreements between employers and unions is clear. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S. Ct. 519, 7 L. Ed. 2d 483. Where one of the terms of the agreement provides for the establishment of an employee welfare fund, a suit against the employer to enforce the provisions of the Fund would literally come within the language of the statute as a suit for 'violation of contract' (AFL v. W. U. Tel Co., 179 F.2d 535 (6th Cir.1950) *fn1" United Construction Workers UMWA v. Electro Chem. Engrav. Co., 175 F.Supp. 54 (S.D.N.Y. 1959); Local No. 90, etc. v. Welbilt Corp., 178 F.Supp. 408 (S.D.Mich., 1959) -- unless the right sought to be enforced was so uniquely personal and private as to be outside the pale of a federal labor question. Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U.S. 437, 75 S. Ct. 488, 99 L. Ed. 510 (1955); International Ladies Garment Workers' Union v. Jay-Ann Co., 228 F.2d 632 (5th ...


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