The opinion of the court was delivered by: Campbell, District Judge.
Plaintiff brings this action under Section 301(a), 29 U.S.C.A.
185, of the Labor Management Act of 1947. The complaint alleges
that plaintiff is a voluntary labor organization and that a
collective bargaining agreement exists between plaintiff and
defendant, the terms of which have been violated by defendant's
failure to grant certain employees paid vacations, and that said
violation constitutes a breach of the contract.
Defendant moves to dismiss the complaint on the following
(1) The Court lacks jurisdiction for the reason that the
National Labor Relations Board has exclusive jurisdiction and,
furthermore, that plaintiff has not exhausted its administrative
remedies before such Board.
(2) Failure to comply with Rule 17(a) and (b) of the Federal
Rules, 28 U.S.C.A.
(3) Failure to comply with Rule 23 of the Federal Rules.
(4) Failure to file the non-communist affidavits required in
Section 9 of the Act, 29 U.S.C.A. § 159.
(5) Lack of diversity of citizenship and jurisdictional amount.
(6) Failure to state a claim upon which relief can be granted.
Defendant's contentions are untenable and the motion to dismiss
must be denied. Quite clearly, the complaint states a claim upon
which relief can be granted. This is a contract action and not a
labor dispute within the exclusive jurisdiction of the N.L.R.B.
The right of action is expressly granted in Section 301(a) of the
"(a) Suits for violation of contracts between an
employer and a labor organization representing
employees in an industry affecting commerce as
defined in this chapter, or between any such labor
organizations, may be brought in any district court
of the United States having jurisdiction of the
parties, without respect to the amount in controversy
or without regard to the citizenship of the parties."
29 U.S.C.A. 185.
Defendant relies strongly on the case of Amazon Cotton Mill Co.
v. Textile Workers Union, 4 Cir., 167 F.2d 183, but that case is
clearly distinguishable. There the union was seeking an
injunction against defendant's unfair labor practice in refusing
to bargain. Obviously, the N.L.R.B. was the proper tribunal in
such a dispute, but here no more than a simple breach of contract
is involved, and falls within the language of the Act.
Neither Rule 17 nor Rule 23 is applicable here. Section 301,
supra, grants the right of action to the union and not to the
employee. In the face of such a grant, it would be improper for
the employees to bring the action in their own names. Similarly,
the language of Section 301 excludes the necessity of diversity
of citizenship and jurisdictional amount.
Furthermore, the union is not required to file the
non-Communist affidavits in an action of this type. This
requirement is designed merely to deny the facilities of the
N.L.R.B. to noncomplying petitioners, and nowhere in the Act is
it set forth as a prerequisite for court action. This view is
confirmed in the case of United Steel Workers of America v.
Shakespeare Co., D.C.Mich., 84 F. Supp. 267, 272:
"Defendants' contention in their motion to dismiss,
that the court is without jurisdiction for the reason
that the plaintiffs failed to comply with Section
9(h) of the Labor Management Relations Act,
29 U.S.C.A. § 159(h), relative to the filing of an
anti-communist affidavit, is without merit for the
reason that Section 9(h) of the Act requires such an