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August 15, 1963

TRI-BORO BAGEL CO., Inc., Plaintiff,
BAKERY DRIVERS UNION LOCAL 802, an unincorporated association, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and John Strauss, as President thereof, Defendants

The opinion of the court was delivered by: ROSLING

Motion by plaintiff Tri-Boro Bagel Co. Inc. (Tri-Boro) for an order remanding to the Supreme Court of the State of New York, Queens County, the action originally brought in said court by Tri-Boro against defendant Bakery Drivers Union Local 802, etc. ('Local') and codefendant John Strauss as its president, and thereafter removed from said court, is denied.

The allegations of the complaint and other papers before this court subsume the issue to be litigated in the category of violations of contracts between 'an employer and a labor organization representing employees in an industry affecting commerce as defined' *fn1" in applicable provisions of law. *fn2" A suit grounded upon a claim charging such violation '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.' *fn1"

The contract between the parties contains a provision committing them to arbitrate their subsisting dispute and barring a strike pending arbitration. It is charged by plaintiff that defendant in disregard of its commitment has struck. The sole relief sought by plaintiff in the action it has instituted is for an injunction restraining the Union from continuing such strike. *fn3"

 Restriction of plaintiff's demand to an injunction and choice of a court of a state in which all parties were citizens as the forum were deliberate. In an action by an employer against a union brought in a federal court under authority of LMRA § 301(a) to restrain violation, in face of an arbitration provision, of a no-strike agreement, Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 212, 82 S. Ct. 1328, 8 L. Ed. 2d 440 (1962) had ruled that Norris-LaGuardia *fn4" barred issuance of an injunction. Justice Black writing for the majority of the court noted trenchantly (id. 370 U.S. p. 214, 82 S. Ct. p. 1339, 8 L. Ed. 2d 440) that congress did not intend to confer upon an employer a personal right of suit for breach of a labor contract 'at the cost of putting the federal courts back into the business of enjoining strikes and other related peaceful union activities.' Plaintiff, seeking to avoid the effect of Sinclair, turned to the state court hopeful that its tribunal would issue the injunction the federal courts refused. The New York Statute *fn5" is in pari materia with that enacted by Congress and construed in Sinclair. *fn6"

 That a § 301(a) suit may be brought in either a state or federal court is now settled. *fn7" Equally certain is it that irrespective of the forum selected by a plaintiff the substantive law to be applied is federal law. *fn8"

 Removal of the action from a state court may be had upon motion of a defendant meeting the qualifications prescribed in § 301(a) for coverage under that provision notwithstanding the local tribunal could, if the action had not been removed, have rendered a binding judgment therein. *fn9"

 Removal, moreover, may be had, and an application to remand withstood, even if removal is effected only to be followed by a grantable motion to dismiss on the ground that though the cause is classifiable as a § 301(a) suit, Norris-LaGuardia forbids the award of the injunction sought. *fn10"

 The court rejects as false in logic and historically unrealistic plaintiff's argument, founded largely on mere semantics, *fn11" whereby it is sought to interpret the introductory clause of Norris-LaGuardia (29 U.S.C. § 104) as though it read, with interpolations italicized, as follows:

 'No court of the United States shall have but the courts of the several states are possessed of, jurisdiction to docket a case if the relief sought in such case would require the court to issue any restraining order or temporary or permanent injunction' etc.

 Lincoln Mills, considering the cognate question as to 'whether § 301(a) is more than jurisdictional' laments that 'the legislative history of § 301 is somewhat cloudy and confusing.' More cheerfully, however, the court continues, 'But there are a few shafts of light that illuminate our problem.' We need not essay to dissipate the crepuscular shadows that obscure the origins of Norris-LaGuardia to perceive its objectives and intent. For these to come sharply into focus one needs but to call to mind the spiritual fibre and texture of the sponsors of the measure the title of which serves as their monument and has become a byword of honorable connotation. May we with reason ascribe to that senator and that congressman, both liberal in their outlook in matters affecting the interests of labor, both mindful of labor's grievance, at the time not wholly without justification, of injunctions improvidently issued and destructive of labor's rights, and determined by their joint effort to bring an end to these 'abuses' by extirpating the judicial power thus impugned, an obreptitious intent to bestow upon the state courts an exclusiveness of jurisdiction not hitherto possessed by them to issue or refuse such injunctions against labor, while at the same time withdrawing from the federal courts that power as well as the correlative power to remove? Surely, when it is, as the federal courts have held in decisions cited above, federal law that is to be construed and federal law applied with uniform force in all the courts of the land, it is a strained construction indeed which would rule that federal courts have, at the very hand of those who promulgated labor's bill of rights, been rendered impotent to keep those rights inviolate.

 Settle order on ...

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