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AMALGAMATED LOCAL UNION NO. 55

September 8, 1997

AMALGAMATED LOCAL UNION NUMBER 55, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA RETIREMENT INCOME FUND, BY ITS TRUSTEES, AMALGAMATED LOCAL UNION NUMBER 55, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA WELFARE FUND, BY ITS TRUSTEES, Plaintiffs,
v.
FIBRON PRODUCTS, INC., Defendant. UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AMALGAMATED LOCAL UNION NO. 55, Petitioner, vs. FIBRON PRODUCTS, INC., Respondent.



The opinion of the court was delivered by: FOSCHIO

 JURISDICTION

 This case was referred to the undersigned on February 7, 1997 by the Hon. William M. Skretny for all pre-trial matters. It is currently before the court on Respondent's petition to remove and to consolidate (Case No. 97-CV-368S(F), Doc. # 1), filed May 5, 1997, and on Petitioner's motion to compel arbitration (Case No. 97-CV-368S(F), Doc. # 7), filed July 16, 1997. *fn2"

 BACKGROUND and FACTS3

 A collective bargaining agreement (the CBA) was entered into between Petitioner, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local Union No. 55 (the Union) and Respondent, Fibron Products, Inc. (Fibron) on October 1, 1994. *fn4" On August 29, 1996, the Union filed pursuant to the CBA a grievance with Fibron asserting that Fibron had failed to remit insurance, pension and union dues premiums to the Union, in violation of the CBA, the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (ERISA), as amended by the Multi-Employer Pension Plan Amendments Act of 1980, 94 Stat. 1208. Thereafter, Fibron advised the Union that based on declining sales and concomitant sales revenues, Fibron was unable to remit the pension and health insurance contributions owed to the Union's Retirement Income and Welfare Funds. The parties resolved the union dues arrearages issue through the grievance procedure, but the issues of payment of the pension and health insurance benefits remain unresolved. In accordance with the CBA's grievance procedure, on December 18, 1996, and again on February 28, 1997, the Union requested that Fibron participate in the selection of an arbitrator to hear the remaining unresolved issues. As Fibron did not respond to either request, the Union, by letter dated March 12, 1997 and sent by certified mail, informed Fibron of its intention to commence a special proceeding in New York State Supreme Court to compel arbitration pursuant to New York State Civil Practice Law & Rules § 7503(c). Additionally, the Union advised Fibron that unless Fibron applied to stay the arbitration within twenty days of receipt of that letter, Fibron would be precluded from objecting to the validity of the CBA.

 Subsequently, on April 14, 1997, the Union filed a petition in New York State Supreme Court, Erie County, for an order pursuant to N.Y. Civ. Prac. L. & R. § 7503(a), directing Fibron to engage in arbitration. Thereafter, on May 5, 1997, Fibron removed that petition to federal district court and moved to consolidate it with case No. 97-CV-150S. A scheduling order issued on June 9, 1997, directed that the Funds' response to the motion to consolidate be filed by July 16, 1997. On July 16, 1997, the Union and the Funds (Plaintiffs) moved to compel arbitration, and also filed a memorandum of law in opposition to consolidation, and requesting the court to sua sponte consider whether it had subject matter jurisdiction to entertain the motion to compel. By letter to the court filed August 20, 1997, Fibron withdrew its motion to consolidate and that issue is no longer before the court.

 Based on the following discussion, the petition to compel arbitration is REMANDED to state court; Plaintiffs' motion to compel arbitration is DISMISSED as moot.

 DISCUSSION

 1. Removal

 Fibron removed the special proceeding brought against it by the Union, asserting that the underlying claim arises from § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, alleging that the Union

 
"is a labor organization representing employees in an industry affecting commerce within the meaning of Title 29 U.S.C. § 152(5) and 185. Said labor organization exists and is constituted for the purpose, in whole or in part, of collective bargaining with employers concerning grievances, wages, hours and other terms and conditions of employment and or of other matters for the protection and benefits of employees represented."

 Notice of and Petition for Removal and Consolidation, filed May 5, 1997, P 11.

 The Union maintains, however, that Fibron's reliance on the LMRA is misplaced as the removed petition does not allege on its face any of the jurisdictional facts asserted by Fibron, i.e., that the Union and employer are in an industry affecting commerce thereby invoking the federal question jurisdiction of this court. Petitioner (Plaintiff) Memorandum of Law in Response to Motion for Consolidation and in Support of Motion to Compel Arbitration (Petitioner's Memorandum of Law), filed July 16, 1997, at p. 2. ...


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