or burdening or obstructing commerce or the free flow of
commerce, * * *."
Paragraphs 2 through 5 of Count I are the paragraphs which set
forth the jurisdictional allegation. It should be remembered that
plaintiff is not only suing individually but is suing as a member
of an employers association, which association he has joined as
a party defendant because it refused to join as a party plaintiff
with him in this action. This is pursuant to Federal Rule 19(a).
In the language of Section 301, plaintiff alleges in paragraph
2 that the "Defendant * * * Local 74 * * * is a labor
organization * * * in an industry affecting commerce, to-wit, the
business of applying wood and metal lathing to buildings * * *.
This industry affects commerce between the States of the United
States for the reason that metal lathing materials are produced
and fabricated for the most part in States other than the State
of Illinois and are shipped into Illinois in interstate
In paragraph 3 plaintiff alleges that he is a lathing
contractor and an employer of members of Local 74. In paragraphs
4 and 5 plaintiff alleges that the employers association is
composed of lathing contractors, each of whom employs members of
Local 74, and each of whom conducts his business in substantially
the same way as plaintiff, purchasing and using metal lathing
materials which are largely manufactured outside the State of
Illinois. "Plaintiff is informed and verily believes that the
aggregate amount of purchases of materials and supplies by
members of the Association in interstate commerce during the most
recent calendar year immediately prior to the doing of the acts
complained of was substantially in excess of $50,000.00."
It would seem to me that these allegations in the complaint are
sufficient allegations of jurisdiction under Section 301.
The defendant objects to the failure of plaintiff to include
allegations as to the dollar volume of purchases of goods
manufactured outside the State of Illinois which he himself
purchases as distinguished from what the Employing Association
purchases. I do not think that this objection is well taken in
that the Employing Association is an involuntary party plaintiff
under the Federal Rules with Gilmour, and in several cases
Federal courts have held that the dollar volume of purchases in
interstate commerce of the total members of the employers
association, rather than of only one individual employer, is to
be considered when testing Federal jurisdiction. Katz d/b/a Lee's
Department Store v. N.L.R.B., 196 F.2d 411 (9 Cir. 1962), and
Joliet Contractors Association v. N.L.R.B., 193 F.2d 833 (7 Cir.
Therefore, while I think that Gilmour as an individual employer
might make so few purchases in interstate commerce as to not
substantially affect it because of the operation of the "de
minimis" rule, as a member of an employers association, his
purchases, when aggregated with all the other members of the
Association, can be taken into account. These purchases are
alleged to exceed $50,000.00 per year, and I think that this is
sufficient allegation of jurisdiction. The Union does not contest
the allegations as to the Association's dollar purchases. It
merely says that only Gilmour's purchases in interstate commerce
ought to be considered. On this the Union is wrong.
(2) Secondly, Local 74 argues that if it has acted wrongfully,
as alleged, jurisdiction is exclusively in the N.L.R.B. and not
in the Federal courts. Originally, Gilmour filed unfair labor
practice charges with the N.L.R.B. However, it should be noted
that contrary to Local 74's implication, the jurisdiction of the
N.L.R.B. and of the United States District Courts are quite
independent of each other. Under Section 301 of the N.L.R.A. the
United States District Courts are given jurisdiction for hearing
"[s]uits for violation of contracts between an employer and a
labor organization * * *", and the mere fact that
the same conduct by a union which is alleged to breach a contract
might also constitute or give rise to charges of unfair labor
practice before the N.L.R.B., is not sufficient to divest Federal
courts of jurisdiction to hear the breach of contract suits.
Smith v. Evening News Assoc., 371 U.S. 195, 83 S.Ct. 267, 9
L.Ed.2d 246 (1962).
Since this is a Section 301 suit, the "pre-emptive" doctrine of
the Garmon case, by which all courts, state and Federal, are
divested of jurisdiction over suits involving unfair labor
practices which are reposed in the exclusive primary jurisdiction
of the N.L.R.B., is inapplicable. The Court in the Smith case
followed Local 174, Teamsters, etc. v. Lucas Flour Co.,
369 U.S. 95, 101, at Footnote 9, 82 S.Ct. 571, 575, 7 L.Ed.2d 593; Charles
Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d
483; and Atkinson v. Sinclair Refining Co., 370 U.S. 238, 245, at
Footnote 5, 82 S.Ct. 1318, 1323, 8 L.Ed.2d 462. All of these were
Section 301 suits where it was held that the pre-emptive doctrine
had no place. The Court expressly refused to apply the
pre-emptive doctrine of San Diego Bldg. Trades Council, etc. v.
Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775; Garner v.
Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228,
and Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99
L.Ed. 546. None of these latter cases was a Section 301 suit, but
each involved attempts to litigate unfair labor practices as
opposed to breaches of contracts in the courts.
There is a clear division of separate authority between the
N.L.R.B., which hears exclusively charges of unfair labor
practice, and the Federal courts, which hear exclusively of the
N.L.R.B. (but coextensively with state courts) suits alleging
violation of collective bargaining contracts. See, Conference
Report, House Report 510, 80th Congress, page 57, in commenting
upon the Taft-Hartley Act of 1947:
"The power of the Board under this provision will not
affect the availability to private persons of any
other remedies they might have in respect to such
activities. * *" U.S.Code Congressional Service 1947,
See also, Plumbers & Steamfitters Union, Local No. 598, v.
Dillion, 255 F.2d 820, 823 (9 Cir. 1958), where the Court held: