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IN RE USPS

April 28, 1983

In the Matter of the Arbitration Between UNITED STATES POSTAL SERVICE, Employer, and AMERICAN POSTAL WORKERS UNION, Union. Grievant/Petitioner: Dorothy Woods


The opinion of the court was delivered by: MOTLEY

MOTLEY, C.J.

This is an action seeking modification of an arbitration award pursuant to 9 U.S.C. section 11. Dorothy Woods (Woods) is, according to the "petition" filed in this case, a resident of New York State and a member of respondent American Postal Workers Union (the Union). Named also as a respondent is the United States Postal Service (the Postal Service). Jurisdiction is asserted under 9 U.S.C. § 11; 28 U.S. § 1332; and 49 U.S.C.§ 10102, (Petition at P4). *fn1"

 This action is now before the court on Woods' motion to modify the arbitration award pursuant to 9 U.S.C. section 11, *fn2" and on respondent Postal Service's motion to dismiss the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, Woods' motion to modify the arbitration award is denied, and the Postal Service's motion to dismiss the petition is granted.

 FACTS

 The pertinent background facts are undisputed. Woods was an employee of the Postal Service. After having plead guilty to a charge of criminal possession of a weapon in the third degree and to disorderly conduct on two separate occasions Woods was notified that her employment with the Postal Service would be terminated. The Union instituted a grievance proceeding which culminated in arbitration between the Union and the Postal Service, pursuant to the governing collective bargaining agreement. *fn3" The arbitrator determined that there was no just cause for the termination, and ordered Woods' reinstatement with continued seniority, but without back pay.

 Woods then commenced the instant action, seeking modification of the arbitrator's award. Woods seeks an award of back pay, restoration of unused vacation time, and "retroactive sick leave, dating back to October 1, 1981, the first month after her unjust removal that she was denied her sick leave allowance." (Petition at P10(c).)

 DISCUSSION

 A. Subject Matter Jurisdiction

 The Postal Service contends that Woods' petition is factually defective in that Woods lacks standing to sue under 9 U.S.C. section 11 for modification of the arbitration award because she was not a "party" to the arbitration in question within the meaning of that section. Before reaching the question of standing as presented by the Postal Service, however, the court will examine Woods' jurisdictional allegations.

 1. Jurisdiction Pursuant to the Arbitration Act.

 Woods asserts that this court has jurisdiction of this action under the federal Arbitration Act, "Title 9, United States Code, and particularly under Section 11 thereof. . . ." (Petition at P4.) The Arbitration Act does not, however, create an independent basis of federal district court jurisdiction. The existence of diversity or federal question jurisdiction must be established if a district court is to entertain an action under the Arbitration Act. Hamilton Life Insurance Co. of New York v. Republic National Life Insurance Co., 291 F. Supp. 225, 232 n.3 (S.D.N.Y. 1968), aff'd, 408 F.2d 606 (2d Cir. 1969). The court will therefore examine Woods' allegation of diversity jurisdiction under 28 U.S.C. section 1332. (See Petition at P4.)

 2. Diversity Jurisdiction

 According to the petition, Woods is a "resident of Bronx County, the City and State of New York, is an employee of [the Postal Service] and a member of [the Union]." (Petition at at P1.) It is well settled that diversity jurisdiction requires that no plaintiff be a citizen of the same state as any defendant. In other words, complete diversity is required. Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 373-74, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978).

 Here, Woods is by her own admission a resident *fn4" of New York State and a member of respondent Union. "A [labor] union for diversity purposes is a citizen of each state in which it has members." Cochrane v. Iowa Beef Processors, Inc., 596 F.2d 254, (8th Cir.) (footnote omitted), cert. denied sub nom. Iowa Beef Processors, Inc. v. Hawkins, 442 U.S. 921, 61 L. Ed. 2d 290, 99 S. Ct. 2848 (1979). See United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 15 L. Ed. 2d 217, 86 S. Ct. 272 (196). See also Loss v. Blankenship, 673 F.2d 942, 949 (7th Cir. 1982). It is clear from Woods' own pleadings that the respondent Union has at least one member, namely Woods, in New York State. Furthermore Woods' own uncontroverted pleadings assert that the Union "is an organization formed under the Laws of the United States . . . and the State of New York . . . and maintains an office, and regularly conducts its business, within the City, County and State of New York. . . ." (Petition at P3.) The court finds that there is no diversity of citizenship between Woods and the Union, and that this court does not, therefore, have diversity jurisdiction of this action. *fn5"

 3. Woods' Standing to Challenge the

 Arbitration Award

 Section 11 of Title 9, United States Code, provides that a district court "may make an order modifying or correcting [an arbitration] award upon the application of any party to the arbitration. . . ." (1976) (emphasis supplied). The Postal Service argues that, although Woods' discharge was the subject of the arbitration proceeding in question, Woods was not a "party" to the arbitration within the meaning of the above-cited section. It is argued that the sole "parties" to the arbitration proceeding were the Union and the Postal Service, because they, and not Woods, were parties to the collective bargaining agreement pursuant to which the arbitration was conducted. The Postal Service contends that the ...


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