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NEW YORK SHIPPING ASSN., INC. v. INTERNATIONAL LON

October 27, 1967

New York Shipping Association, Inc., et al., Petitioner
v.
International Longshoremen's Association, AFL-CIO et al., Respondents-Removants


Croake, D.J.


The opinion of the court was delivered by: CROAKE

CROAKE, D.J.

This Motion to Remand presents the difficult and much-discussed question of whether a federal district court, although powerless to grant the requested relief, nevertheless has "original jurisdiction" within the meaning of the removal statute *fn1" over an action for a labor injunction originally brought in state court.

 Background

 Early in the morning on October 19, 1967, picket lines were established at almost every pier on the Brooklyn waterfront by members of the Shoreside Supervisors Union ("SSU"). The Union seeks recognition as the representative of supervisory personnel *fn2" employed by the stevedoring companies who serve the piers now being picketed.

 Longshoremen reporting for work on the morning of the 19th refused to cross these picket lines. Thereafter, on the same day, pursuant to the grievance and arbitration procedures contained in the collective bargaining agreement between the New York Shipping Association, Inc. ("NYSA"), and the International Longshoremen's Association, AFL-CIO ("ILA"), a meeting of the Joint Labor Relations Committee was called. This committee is composed of five representatives each from labor and management and is presided over by the Port Arbitrator. It was determined by a majority vote of the committee *fn3" that the refusal of the longshoremen to report for work violated the "no strike" provision *fn4" of the agreement and the committee adopted a "Decision and Order" stating: "(1) The work stoppages violate the labor agreement, and (2) All men are directed to return to work immediately."

 When the longshoremen disregarded the back to work order and continued to honor the picket lines of the "SSU," "NYSA" applied to Hon. Darwin W. Telesford, Supreme Court Justice in and for New York County, for a Temporary Restraining Order enjoining further picketing and an Order to Show Cause why the striking unions should not be permanently enjoined. Justice Telesford denied the Temporary Restraining Order but granted an Order to Show Cause, making it returnable on Monday, October 23, the next business day.

 At the October 23 hearing, counsel for the removing parties herein *fn5" served papers indicating that the action had been removed to this court pursuant to 28 U.S.C.A. § 1441. "NYSA" then brought on the instant Motion to Remand by Order to Show Cause dated October 23, 1967 and returnable the following day.

 Parties Joining in the Removal

 Section 1441(a) provides that when the other necessary criteria are met, a civil action can be removed by "the defendant or the defendants." 28 U.S.C. § 1441(a); Cf. 28 U.S.C. § 1446. "NYSA" argues that because only four of the six "ILA" locals named as respondents *fn6" in the original state action joined in the petition for removal, *fn7" the removal was improper. This is indeed the general rule. See 1 MOORE FEDERAL PRACTICE P0.168(3-2). The rule has its exceptions, however, and among them is the principle that if joinder is "fraudulent," a federal court is free to realign the parties according to their true interests. See Broidy v. State Mut. Life Assur. Co., 186 F.2d 490, 492 (2d Cir. 1951). Fraudulent joinder is a term of art relating to the removal problem primarily as it arises in diversity situations. The most common example is the joinder by plaintiff, a citizen of the forum, of a non-resident true defendant with a resident fraudulent defendant, thereby destroying diversity and precluding removal. "Whether joinder is fraudulent or not is said to depend on whether the plaintiff really intended to obtain a judgment against both defendants." 1 MOORE FEDERAL PRACTICE P0.161(2); Bolstad v. Central Surety and Insurance Corp., 168 F.2d 927 (8th Cir. 1948).

 In the instant case, Locals 1 and 955, the two locals not joining the removal petition, are aligned in interest with the petitioner "NYSA." Both locals are under the leadership of Thomas W. Gleason with whom the four petitioning locals, under the leadership of Anthony Scotto, are at odds. Immediately after the meeting of the Joint Committee, Mr. Gleason sent a telegram to "All Officers and Locals of the International Longshoremen's Union in the Port of New York," directing the men to cross the picket lines and return to work. *fn8" To allow the two non-petitioning locals to defeat this removal by not joining in the petition would invite the development of a new species of fraudulent joinder designed to thwart removal in § 301 cases.

 Original Jurisdiction

 In addition to requiring participation by all defendants, to be removable a case must involve a cause of action of which the district courts have "original jurisdiction." 28 U.S.C. § 1441. Recent Supreme Court decisions have accentuated an anomalous discrepancy between federal and state law in the labor field and have thereby rendered the definition of "original jurisdiction" in certain contexts a magician's task.

 When Congress passed the Norris-LaGuardia Act *fn9" in 1932, it chose to couch its ban on labor injunctions in jurisdictional terms directed only to federal courts. Fifteen years later, without modification of Norris-LaGuardia, Congress passed the Labor Management Relations (Taft-Hartley) Act, *fn10" § 301 of which provides in pertinent part:

 
"Suits for violation of contracts between an employer and a labor organization representing employees . . . may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or ...

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