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NEWMARK & LEWIS, INC. v. INTERN. BROTH. OF TEAMSTERS

October 5, 1991

NEWMARK & LEWIS, INC., PLAINTIFF,
v.
LOCAL 814, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM DECISION AND ORDER

This action arises out of the defendant Local 814, International Brotherhood of Teamsters' ("Local 814"), demand for arbitration of a dispute between itself and the plaintiff Newmark & Lewis, Inc. ("Newmark & Lewis"). Local 814 alleges that Newmark & Lewis breached a collective bargaining agreement by using non-union employees for the delivery and distribution of its products. Local 814 removed the action from state court to this Court on the ground that the dispute between the parties is governed by section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185.

Before the Court at this time is the motion of Newmark & Lewis for remand to state court. The sole question presented is whether under the "well-pleaded complaint rule", the action is properly removable.

BACKGROUND

Newmark & Lewis employed BSI (non-union employees), for the distribution and delivery of its products. Local 814 demanded arbitration to determine whether Newmark & Lewis, as a joint employer with Westbury, breached the collective bargaining agreement with the union by using non-union employees.

Pursuant to New York's CPLR 7503, Newmark & Lewis filed a verified petition to stay the arbitration and simultaneously obtained an order to show cause, signed by Justice Leo F. McGinity on March 19, 1991, in the Supreme Court of the State of New York, Nassau County. The order to show cause temporarily stayed the arbitration pending a determination of the underlying proceeding.

In its petition, Newmark & Lewis alleges that there was no collective bargaining agreement in force between itself and Local 814, and that its recent contract with BSI for the delivery of its merchandise is a purely private agreement.

Local 814 subsequently removed the state-court proceeding to this Court pursuant to 28 U.S.C. § 1441(b), based upon federal-question jurisdiction (see 28 U.S.C. § 1331). In its removal notice, Local 814 states that, on information and belief, BSI is the alter ego of Westbury in that "they constitute a single integrated enterprise". The removal notice further states that a collective bargaining agreement is in effect between Local 814 and Westbury which contains an arbitration clause. Accordingly, Local 814 contends that Newmark & Lewis is bound by the Westbury Agreement by reason of its "joint employer relationship with Westbury".

The removal notice also states as follows:

  "9. . . . The issue of whether there is a valid
  collective bargaining agreement between the parties
  herein is a matter which this Court would have
  original jurisdiction to resolve pursuant to
  29 U.S.C. § 185. . . .
  10. Although Newmark has cast its action as a state
  claim pursuant to Article 75 of the New York Civil
  Practice Laws and Rules, such a claim is preempted by
  29 U.S.C. § 185, and any action to determine the
  validity of an agreement to arbitrate embodied in a
  collective bargaining agreement may only be brought
  under 29 U.S.C. § 185. . . ."

Newmark & Lewis now moves pursuant to 28 U.S.C. ยง 1447(c) to remand the action back to state court, on the ground that this Court lacks federal subject matter jurisdiction over the dispute. Newmark & Lewis also seeks an award of costs and ...


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