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DUANE READE, INC. v. LOCAL 338 RETAIL

May 28, 2003

DUANE READE, INC., PLAINTIFF, AGAINST LOCAL 338 RETAIL, WHOLESALE, DEPARTMENT STORE UNION, UCFW, AFL-CIO, ET AL., DEFENDANTS.


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

MEMORANDUM OPINION

Plaintiff, the operator of a large chain of drug stores, seeks a preliminary injunction restraining the defendants from trespassing in its premises to solicit plaintiff's employees in connection with a union affiliation election scheduled for tomorrow.

Facts

The Context of the Dispute

Plaintiff Duane Reade, Inc. operates over 230 retail drug stores in the New York City area. It is a party to a collective bargaining agreement ("CBA") with an independent union, the Allied Trades Council ("ATC"), pursuant to which ATC is the sole collective bargaining agent for most employees at over 130 of plaintiff's stores. Although the initial agreement expired on August 31, 2001, negotiations have continued, Duane Read has implemented certain terms that were bargaining to impasse, the other terms of the CBA remain in effect, and ATC remains the sole bargaining agent for the relevant employees.

Defendant Local 338 Retail, Wholesale, Department Store Union, UFCW, AFL-CIO ("Local 338") is seeking to have ATC become its affiliate. An internal election was held by ATC on May 8, 2003 in which a majority of ATC members employed by Duane Reade rejected affiliation with Local 338. The leadership of ATC, however, has scheduled another internal election concerning the affiliation. That election is scheduled to occur tomorrow.

Prior Proceedings

Duane Reade brought this action in the New York Supreme Court, New York County, on or about May 23, 2003. The complaint asserts only a state law claim or claims, most notably common law trespass. It alleges that Local 338 representatives have entered its stores, solicited its employees during working hours in connection with the forthcoming election, behaved in a loud and disruptive manner, interfered with the operation of its business, and refused to leave the premises when so requested. It seeks an injunction and reasonable attorney's fees.

Local 338 removed the action to this Court on May 27, 2003. The notice of removal asserts that Duane Reade's cause of action is preempted by the Labor Management Relations Act ("LMRA"),*fn1 that Duane Reade's state law claim is preempted under San Diego Building Trades Council v. Garmon,*fn2 and that this Court therefore has jurisdiction over the subject matter. It relies upon Palm Beach Co. v. Journeymen's Union Local 157*fn3 and Billy Jack for Her, Inc. v. New York Coat, Suit, Dress, Rainwear and Allied Workers Local 1-35.*fn4

On March 27, 2003, Duane Reade presented the Court with an order to show cause by which it sought a temporary restraining order and a preliminary injunction barring Local 338's activities. The Court heard counsel for both parties late yesterday. It denied the temporary restraining order, directed Local 338 to submit any answering papers by early this morning, and scheduled a hearing on the preliminary injunction motion for 9 a.m. today. Having considered the matter over night and heard the parties again this morning, the matter now is ripe for disposition.

Discussion

This Court is obliged to determine whether it has subject matter jurisdiction regardless of whether the issue is raised by the parties.

The relevant provision of the Judicial Code provides:

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending."*fn5
As there is no claim of diversity or admiralty jurisdiction in this case, the removal ...

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