
    NEW BROADCASTING CO., Inc. v. KEHOE.
    United States District Court S. D. New York.
    Nov. 24, 1950.
    
      Samuel Mezansky, New York City, for plaintiff; Jask M. Perlman, New York City, of counsel.
    Neuburger, Shapiro, Rabinowitz & Boudin, New York City, for defendant; Leonard B. Boudin, New York City, of counsel.
   RYAN, District Judge.

Plaintiff moves to remand. The issue presented is whether or not the allegations of the complaint disclose that relief is here sought on the basis of rights or claims arising under the Sherman Anti-Trust Act, 15 U.S.C.A. § 1 et seq., or the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq.

If it is determined that the plaintiff seeks relief by virtue of rights or claims arising under either of these statutes, this court has original jurisdiction of the action, 28 U.S.C.A. § 1337, 29 U.S.C.A. § 187(b), and it was properly removed, 28 U.S.C.A. § 1441(a); if the contrary, the motion to remand must be granted. In determining this, we may properly consider only those allegations which are set forth in the complaint itself. Gully v. First National Bank, 1936, 299 U.S. 109, 113, 57 S.Ct. 96, 81 L.Ed. 70.

The complaint, in substance; alleges: plaintiff is a corporation, owning and operating a radio broadcasting station known as radio station “WLIB,” under license issued by the F.C.C. At the expiration of a collective bargaining agreement with the American Communications Association (hereinafter referred to as the “Union”), the parties were unable to agree on terms of renewal. In an effort to exact compliance with their demands, the Union undertook to destroy plaintiff’s business and good ill, and it sought and still seeks to effectu:e this purpose by coercing and compelling tri o us sponsors to discontinue business rations with the plaintiff. As a result of iis campaign various sponsors have candied their contracts, and others threaten > do so.

Finally, it is alleged that the coercion aplied by the Union to the sponsors constiites a secondary boycott, and that the Union’s course of conduct is not a labor disute within the meaning of Sec. 876-a of íe Civil Practice Act, and that as a result f such oourse of conduct, the plaintiff has een and is being irreparably injured, laintiff prays a judgment awarding it amages in the sum of $100,000 and a períanent injunction; and further requests ljunctive relief pending the outcome of the ction,

That the complaint sets forth a ood cause of action under state law, is not enied by defendant, as, of course, he need ot on this motion; nor, does he assert that ederal law would be decisive of the issues aised by the state cause of action. Def endnt contends, only, that the allegation of he complaint also set forth claims under he federal anti-trust laws and the Labor lanagement Relations Act. If the material negations of the complaint do invoke these iws, this court undoubtedly has original urisdiction, even though they are at no oint alluded to in the complaint and even hough the plaintiff expressly disclaims any esire or intention to recover on other than purely state cause of action.

With respect to the alleged anti-rust claim, it is pointed out that plaintiff’s eclaration that he is operating under F.C. 1. license signifies that he is in interstate ommerce, 47 U.S.C.A. § 151 et seq. There-ore, it is asserted, plaintiff’s further conention that the Union “undertook to desroy * * * (his) business and good will * * ” in effect charges a conspiracy in estraint of trade.

The difficulty with this argument is that t fails to take account of recent Supreme lourt decisions which have substantially restricted union liability under the antitrust laws. See, Allen Bradley Co. v. Local 3, Int’al Brotherhood of Electrical Workers, 1945, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939; United States v. Hutcheson, 1941, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788. It is now settled that a labor organization, engaged in advancing the legitimate aims (?f its members, may incur liability under the anti-trust laws only by entering into a combination with employers, who are themselves violating the antitrust laws.

Although the complaint asserts that the Union’s course of conduct does not constitute a labor dispute under C.P.A. Sec. 876-a, it is clear from the allegations, as a whole, that the Union’s primary objective throughout has been to advance the interests of its members, however one might characterize some of the methods it is alleged to have employed. Nor does the allegation that some sponsors have succumbed to the Union’s pressure disclose that combination with employers to restrain trade, which the Supreme Court has deemed a prerequisite to union liability for antitrust violations. The complaint does not present a federal question arising under the anti-trust laws.

Defendant’s contention that the complaint states a claim arising under the Labor Management Relations Act has reference to Section 303 of the Act, 29 U.S.C.A. § 187, which authorizes a claim for damages against labor organizations guilty of certain violations, and vests the district court with jurisdiction to entertain such claims. There can be no doubt that the complaint charges an effort to induce employers to “cease doing business with any other person”, which subsection (a) (1) of the section declares to be an unlawful objective. A claim for damages under this section, however, arises only when a labor organization seeks to achieve such an objective by engaging in, or inducing employees of any employer “to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services * * * i>

There is no allegation in the complaint that the Union has resorted .to such tactics in its effort to dissuade sponsors from continuing business relations with the plaintiff. It is true that the complaint does refer to a campaign to have non-complying sponsors blacklisted and boycotted .by various unions, other organizations and their members. But, all this can be reasonably construed to charge is that these groups were urged not to patronize sponsors who persisted in business relationships with the plaintiff. Therefore, the complaint -does not state a claim for relief under the Labor Management Relations Act.

It has been urged by defendant that the court must accept jurisdiction even if it-finds that no valid claim for relief under a federal law was presented by the complaint. The suggested distinction has been drawn in a number of cases see, e. g. Bell v. Hood, 1946, 327 U.S. 678; 66 S.Ct. 773, 90 L.Ed. 939; The Fair v. Kohler Die & Specialty Co., 1913, 228 U.S. 22, 33 S.Ct. 410, 411, 57 L.Ed. 716, but invariably under circumstances decisively different from those here present. Where the complaint has grounded its claim for relief explicitly under a federal statute, federal courts have accepted jurisdiction even though the com-, plaint-would be subject to a motion to dismiss. The principle underlying these decisions was expressed by Mr. Justice Holmes when he wrote, “Of course, the party who brings a suit is master to .decide what law he will rely upon”. See, The Fair v. Kohler Die & Specialty Co., supra.

Plaintiff brought the suit initially in a state court. At no point ill 'his complaint does he allude to a federal statute, or indicate a desire to rely upon such law. He has strenuously disavowed any inclination to invoke a federal statute in h'is be.half. Under these circumstances, the de termination that the complaint does not state a valid federal claim for relief is also decisive of the jurisdictional question.

Motion to remand is granted.  