federal law, removal to federal court is proper even though only state law is asserted as the base for such claims. North American Phillips, Corp., supra, at 234; Ferro v. Association of Catholic Schools, 623 F. Supp. 1161, 1164 (S.D.N.Y. 1985)(although plaintiff relied solely on state contract law as the substantive basis for relief, a dispute over a collective bargaining agreement arises under § 301 of the LMRA which preempts the state law and, as such, supports removal to federal court). Also, where federal jurisdiction hinges on a party's particular status, i.e., involvement in an industry affecting commerce, the court is permitted to look beyond the face of the complaint to ascertain, independent of the complaint, the existence of that status. Hearst Corporation v. Shopping Center Network, Inc., 307 F. Supp. 551, 556 (S.D.N.Y. 1969). "This limited exception to the 'face of the complaint rule' prevents plaintiffs from defeating removal by inadvertently, mistakenly, or fraudulently concealing the federal question that would have appeared if the complaint were well-pleaded." Ferro, supra, at p. 1164, citing 1a Moore's Federal Practice P 0.160 at 185-87 (2d ed. 1981). Thus, where the state law on which the plaintiff relies has been completely preempted by federal law, the state law claim is converted into a federal claim. Caterpillar, supra, at 393. In that case, federal law provides the only legal basis for the relief sought and removal is proper based on federal law. North American Phillips, Corp., supra, at 233; Ferro, supra, at 1164.
Although the LMRA has completely pre-empted state law with regard to disputes arising under collective bargaining agreements, there has been no similar preemption of the state forum as both state and federal courts have jurisdiction under § 301 of the LMRA to entertain disputes involving collective bargaining agreements with the state courts required to apply the applicable substantive federal law as a matter of preemption. Pari Mutuel Clerks Union of Louisiana, Local 328 v. Fair Grounds Corporation, 703 F.2d 913, 919, n. 5 (5th Cir. 1983)(citing Amalgamated Association of Street Employees v. Lockridge, 403 U.S. 274, 29 L. Ed. 2d 473, 91 S. Ct. 1909 (1971)). As such, New York Supreme Court has jurisdiction over the Union's claim, even if it arises under the LMRA. By filing the state court petition which does not allege on its face any basis for federal jurisdiction as a cause of action under federal law, the Union chose to avail itself of only a state procedural remedy, specifically, N.Y. Civ. Prac. L. & R. § 7503(a), the summary procedure by which an order compelling arbitration may be granted. No similar remedy is available under federal law.
Thus, the question presented is whether, given the LMRA's complete preemption of state law, New York special proceeding to compel arbitration is available to the Union as a remedy and whether a union may, by failing to allege facts which otherwise would raise a claim based on federal law, thereby oust district court of subject matter jurisdiction. The court finds that it may.
"Section 301 governs claims founded directly on rights created by collective-bargaining agreements and also claims substantially dependent on analysis of a collective-bargaining agreement.'" Caterpillar, supra, at 394, (quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3, 95 L. Ed. 2d 791, 107 S. Ct. 2161 (1987))(respondents who alleged that defendant had breached individual employment contracts with them possessed substantial rights under a collective bargaining agreement and suit could have been brought under § 301 but, as masters of their complaint, were not required to do so; the complaint as pled did not rely on any interpretation of the collective bargaining agreement and the federal district court was without jurisdiction over the matter). In the instant case, the Union is not seeking any relief or resolution in its state court proceeding of a claim which requires analysis of the CBA. As such, the court is not required to look beyond the face of the petition to determine if the court has jurisdiction over the matter based on the status of the parties.
Further, even if Defendant had, prior to removal, timely objected to arbitration as required by § 7503(c), the result would be the same for the Union did not commence a separate action in state court, but rather has only petitioned for an order directing the parties to arbitrate the claims at issue in accordance with New York state civil procedure which provides for summary disposition of such requests. N.Y. Civ. Prac. L. & R. § 7503(a). A fair reading of the Union's petition demonstrates that it neither asserts a claim nor does it request a remedy available under federal law. The petition therefore requests relief available only under state law. By not alleging any basis for federal subject matter jurisdiction appearing on the face of the state court petition, the Union, as master of its complaint, pursues only a state procedural remedy not preempted by the LMRA as it does not require any consideration of the terms or meaning of the CBA. The court does not find the presence of a general arbitration provision in the CBA requires consideration of the terms or meaning of the CBA, particularly where, as here, the applicability of such clause is uncontested. Any consideration as to the scope of the arbitration clause and the terms of the CBA which may be involved in the dispute will necessarily be determined by the arbitrator. Instead, the special proceeding petition requests an order directing the parties to proceed to arbitration based in part on Fibron's failure to respond in opposition to such petition.
Further, there is no danger that a remand to state court will place the petition before a court without subject matter jurisdiction over it as both state and federal courts are appropriate fora in which to adjudicate a dispute subject to the LMRA. As such, the special status rule under which removal to federal court would be required, if it were ascertained that the LMRA applied to the dispute, is not implicated. Subject matter jurisdiction must therefore be determined solely upon the well-pleaded complaint rule. As no basis for federal question jurisdiction, based on the LMRA or other federal law, appears on the face the petition, this court is without subject matter jurisdiction and, accordingly, the petition must be remanded to state court.
Based on the foregoing discussion, the Union's petition to compel arbitration (Case No. 97-CV-368S(F), Doc. # 1) is REMANDED to state court; Plaintiffs' motion to compel arbitration (Case No. 97-CV-368S(F), Doc. # 7) is DISMISSED as moot. SO ORDERED.
LESLIE G. FOSCHIO
UNITED STATES DISTRICT COURT
DATED: September 8th, 1997
Buffalo, New York