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February 26, 1976

State Of New York, Plaintiff
Hotel And Allied Health Services Union, Local 144 et al., Defendants

Gagliardi, D.J.

The opinion of the court was delivered by: GAGLIARDI



 The State of New York ("State") instituted this action in the Supreme Court, New York County, against Local 144 Hotel, Nursing Home and Allied Health Services Union ("Union") for an injunction restraining the Union from engaging in a strike against the member facilities of the Metropolitan New York Nursing Home Association, Inc. ("Nursing Home Association"). The action was allegedly based on the power of the State to protect the health and welfare of its citizens as embodied in New York Public Health Law § 12(5) and § 206 subd. 1(a), the New York State Constitution Article XVII, Section 3, and the inherent police power of the State.

 Prior to the return date of an Order to Show Cause obtained in the State Supreme Court and while a temporary restraining order issued by that court was outstanding, defendants removed the action to this Court pursuant to 28 U.S.C. § 1446. The State now moves pursuant to 28 U.S.C. § 1447 to remand this action to the state court on the ground that removal was improvident because the action does not involve a federal claim. The Union opposes remand and cross-moves for dismissal of the complaint.


 The first and major question is whether this action is grounded in state or federal law. The State contends that the test as to whether removal was proper is whether the complaint, unaided by the answer or petition for removal, states a federal claim. As the complaint here is pleaded solely in terms of state law, the State argues that removal was improvident.

 While there is no doubt that the complaint is a substantial and often decisive test as to whether removal was proper, Gully v. First National Bank, 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96 (1936); American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 59 L. Ed. 594, 35 S. Ct. 355 (1915); Tennessee v. Union and Planters' Bank, 152 U.S. 454, 38 L. Ed. 511, 14 S. Ct. 654 (1894), further inquiry must be made as to whether, regardless of artful pleading, in fact the action is one governed by federal law. The applicable principle was set out recently in Coditron Corp. v. AFA Protective Systems, Inc., 392 F. Supp. 158 (S.D.N.Y. 1975):

As a general rule, if plaintiff has a remedy under both state and federal law, it may base its claim solely on state law and thus defeat the defendant's potential right to removal . . .. Where federal jurisdiction is exclusive, however, as in the patent field, plaintiff's form of pleading must be carefully scrutinized in order to assure that the congressional determination that such matters are to be adjudicated solely in federal courts has not been violated . . . . In such a context, while the defendant bears a substantial burden in proving that the plaintiff misstates the gravamen of the complaint, the plaintiff's ardent disclaimer of any reliance on federal law is not by itself determinative since the issue is one of subject matter jurisdiction . . . .

 392 F. Supp. at 160.

 A similar rule was enunciated in Hearst Corp. v. Shopping Center Network, 307 F. Supp. 551 (S.D.N.Y. 1969):

True it is that, where the plaintiff has a right to relief either under federal law or under state law as an independent source of that right, the federal court on removal proceedings may not generally look beyond the face of the initial pleading in the state action to determine whether a federal question is presented . . . . In certain areas, however, this either-or option is no longer available, for Congress has deemed that federal substantive law should altogether preempt and supplant state law. In such a case, where Congress has explicitly said that the exclusive source of a plaintiff's right to relief is to be a federal law, it would be unacceptable to permit that very plaintiff, by the artful manipulation of the terms of a complaint, to defeat a clearly enunciated congressional objective.

 307 F. Supp. at 556 (emphasis original).

 The Coditron case involved patent law, a field where the federal courts have exclusive jurisdiction by virtue of 28 U.S.C. § 1338. The Hearst case involved copyright questions where once again the federal courts have exclusive jurisdiction. Id. The case before this court involves a question of labor law and based on the rule of Hearst and Coditron the issues become: (a) whether the federal labor laws govern the instant situation and (b) whether -- if federal law governs -- such laws pre-empt state law.

 In 1974, the National Labor Relations Act ("NLRA") was amended in several ways which bear on the extent of federal regulation of labor disputes in facilities such as those involved in this action. Section 2(2) of the NLRA, which until that time had excluded from the definition of the term "employer" "any corporation or association operating a hospital if no part of the net earnings inures to the benefit of any private shareholder or individual," was amended to eliminate this exclusion for nonprofit institutions. 29 ...

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