Appeal from the United States District Court for the Southern District of Indiana Indianapolis Division - No. IP 74-531-C S. Hugh Dillin, Judge.
Cummings, Pell, and Sprecher, Circuit Judges.
This is an appeal from a judgment entered in favor of the defendant, General Tire & Rubber Co., on its motion for summary judgment. The plaintiff, John Jones, filed his complaint in the Superior Court of Madison County, Indiana, seeking monetary damages in the amount of $9500 and reinstatement as an hourly paid employee of the defendant. The plaintiff alleged that he was originally employed in 1956 as an hourly rated employee in the defendant's Marion, Indiana, manufacturing plant. In 1968 he was advanced to a salaried position, but this employment was terminated on June 6, 1973. There was no allegation that the defendant was beyond its legal rights in terminating the employment although it was alleged that the employment was not terminated because of employee's misconduct or any physical or mental infirmity. What we deem to be the significant basis of plaintiff's asserted cause of action, and of ultimate significance in our disposition of this case, is the following allegation:
Plaintiff had an implied contractual right to return to an hourly rated position at defendant's Marion, Indiana, plant when his salary services ended. Plaintiff's implied contractual right is based upon policies, practices, and negotiated collective bargaining agreements at said Marion, Indiana, plant.
The defendant promptly filed in the federal district court for the Southern District of Indiana its petition for removal of the cause, reciting in its verified motion that the action was a civil action arising under Section 301 of the Labor Management Relations Act as amended, 29 U.S.C. § 185. The motion basically finds its support in its statement that the plaintiff's implied contractual right to reemployment was based in part upon collective bargaining agreements, that this would have been an agreement between the defendant and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, Local Union No. 466, and that the "action is based on an alleged violation of the aforesaid collective bargaining agreement by the defendant General Tire and Rubber Co."
In the district court the plaintiff filed a motion to remand which at best can be described only as half-hearted:
Plaintiff has no quarrel with this Court hearing this case on the merits. However, plaintiff would point out that only if this Court would hold that it could grant plaintiff's prayer for equitable relief and order plaintiff re-instated to the hourly rated job to which he would have been entitled upon his discharge in June, 1973, would the collective bargaining agreement come into play, and this Court's jurisdictional touchstone.
If this Court would hold that plaintiff is only entitled to money damages, and not reinstatement to an hourly rated job, then plaintiff urges that there may be a jurisdictional defect, and this cause should be remanded.
WHEREFORE, plaintiff prays that this Court determine if this cause should be remanded, and for all other proper relief.
Notwithstanding the lack of vigorous and positive assertion of a right for remand, the duty nevertheless rested upon the district court under the circumstances here to notice and determine the existence of a federal question and this would have been true even if the motion had not been filed. 14 Wright, Miller and Cooper, Federal Practice and Procedure § 3739, at 757 (1976). Nor is the fact that the plaintiff stated he had no quarrel with the district court hearing the case on the merits of significance because the right to secure a remand in the absence of federal jurisdictional subject matter cannot be waived. Id. at 756. The motion to remand was more illuminating on the question of the place in the scenario of plaintiff's claim of "the collective bargaining agreements" than was the plaintiff's complaint itself. In the motion to remand plaintiff sets forth three paragraphs of the bargaining agreements, all dealing with the same subject and contained in the 1963, 1967, and 1970 contracts.*fn1
A fair reading of the quoted provision from the union contract can lead to only one conclusion, which was the conclusion at which the district court arrived in granting summary judgment and that is that the contract under any construction does not purport to provide a contractual right for an employee who has been transferred to work outside of the bargaining unit to be entitled to reinstatement to work inside the bargaining unit or to be rehired as an hourly employee in the event of termination of his employment outside the bargaining unit. The sole and obvious purpose of the provision in question was to provide that an employee who is retransferred to an hourly paid position would be entitled to the seniority rights as specified in the contract. Plaintiff was never retransferred to an hourly position, and the only way he could have claimed a violation of the bargaining agreement was if he had been retransferred to an hourly position and had been denied seniority in accordance with the contract.
The defendant resisted the motion to remand admitting that the right of defendant to remove a case must be determined solely from the allegations of the plaintiff's complaint, Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 62 L. Ed. 713, 38 S. Ct. 237 (1918), but asserting that an exception to the rule permits the defendant to show by affidavits that the status of parties where not clearly shown by the complaint is such as to permit removal, Fay v. American Cystoscope Makers, Inc., 98 F. Supp. 278, 280 (S.D.N.Y. 1951). The defendant further asserted that the allegations of the complaint, presumably aided by the defendant's affidavit, show that the suit is one over which federal courts have jurisdiction under 29 U.S.C. § 185. The defendant's answer in opposition to the motion to remand does not in any way indicate how or in what way the plaintiff's complaint is based upon a violation of the labor contract as required under 29 U.S.C. § 185(a).*fn2
The district court in a brief order denied remand and subsequently on the merits granted defendant summary judgment. This appeal followed. In this court the briefing was directed to the propriety of the grant of summary judgment. The question of whether the case should have been remanded was only adverted to in oral argument in a cursory manner. We entertain considerable reluctance to reach a disposition in a case on an issue which has not been thoroughly briefed and argued, particularly where the underlying factual situation developed by affidavits and depositions without any apparent real dispute as to the ultimately controlling facts would indicate ...