of all may, on behalf of all, sue or be sued, when the claracter of the right sought to be enforced * * * is
"(1) joint, or common * * *."
We agree that a class suit might be sustainable in the instant case, if there were proper allegations in the complaint to bring the case within the rule; but there are not. On the contrary, the complaint says that the complainants are the "International Hod Carriers', Building and Common Laborers' Union." And the first paragraph of the complaint says: "First: The plaintiff, International Hod Carriers', Building and Common Laborers' Union of America is * * *." As this is a matter that would be the proper subject of amendment, we would allow the plaintiff to amend, if desired.
In a class suit, if there is diversity of citizenship between the parties on the record, a Federal District Court would have jurisdiction. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366, 41 S. Ct. 338, 65 L. Ed. 673; Smith v. Swormstedt, 16 How. 288, 57 U.S. 288, 14 L. Ed. 942.
On this branch of the case, we conclude that unless the complaint is amended to show that Moreschi is the plaintiff and brings this suit as a representative of a class so numerous as to make it impracticable to bring them all before the court, and that suit by Moreschi will fairly insure the adequate representation of all, and that the right sought to be enforced is joint or common to all, we shall have to dismiss for want of diversity of citizenship.
As to the second question raised as to the averment of the amount in controversy, the allegation in the complaint is not adequate; but that, too, is subject to amendment; and the complaint ought not to be dismissed on that ground, if plaintiff desires to amend in that particular.
The third question raised is whether or not this case involves a labor dispute of such character as to require compliance with the Labor Relations Acts either of Pennsylvania or the United States as a necessary prerequisite to court action upon the controversy.
As the jurisdiction of this court depends entirely on diversity of citizenship and the amount in controversy, we have a case where the acts complained of occurred in Pennsylvania. Therefore, we have a case where the law of Pennsylvania governs the substantive rights of the parties, and where the power of this court to grant the relief prayed for depends upon the jurisdiction conferred upon it by the statutes of the United States. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 325, 58 S. Ct. 578, 82 L. Ed. 872.
The complaint discloses that the County Construction Company entered into a written contract to employ none but members of the International Hod Carriers', Building and Common Laborers' Union of America in the execution of the Construction Company's contract for the completion of a section of a Pennsylvania highway, known as the PWA Project Docket No. Pa.-1949F, Pennsylvania Turnpike Section 8 C and 9 A; that said Construction Company has violated its contract and has entered into agreements with defendant corporations for the employment of its members as laborers on said PWA project, and have conspired with the officers and members of defendant corporations to eject members of plaintiff's Union from said project and to interfere with their working thereon.
In our view, these facts disclose a "labor dispute" within the meaning of the Pennsylvania Labor Relations Act of June 1, 1937, P.L. 1168, Sec. 3 (h), 43 P.S.Pa. § 211.3(h), which reads as follows: "Sec. 3 [§ 211.3.] (h) The term 'labor dispute' includes any controversy concerning -- (1) terms, tenure or conditions of employment; or concerning (2) the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employe."
Therefore it is plain that this labor dispute should have been taken to the Pennsylvania Labor Relations Board by proper complaint under that Act.
The Pennsylvania Labor Relations Act has not been construed by the Supreme Court of Pennsylvania; but the Court of Common Pleas of Philadelphia County, in Bulkin v. Sacks, 31 Pa. Dist. & Co. R. 501 (Flood and Levinthal J.J.), in consideration of an action brought by a labor union to enjoin an employer from violating the terms of a contract with the union which required the employer to employ no laborers but those who were members of the union, held that by the terms of the Pennsylvania Labor Anti-Injunction Act of June 2, 1937, P.L. 1198, Sec. 11, 43 P.S. §§ 206a, 206k, no injunction can be granted in a labor dispute to any complainant "who has failed to make every reasonable effort to settlle such dispute, either by negotiation, or with the aid of any available governmental machinery of mediation or voluntary arbitration." In that case, the judges delivering the opinion of the court, said, 31 Pa. Dist. & Co. R. at page 504:
"A reading of these statutes indicates that the public policy is not merely to protect labor against the issuance of injunctions and to compel or protect collective bargaining, but also to relieve the courts from the necessity of passing upon or even considering these cases until all other methods of settling them have failed. There is a very definite policy of keeping labor disputes out of the courts. In this connection it is interesting to recall the statement of the present Chief Justice in Kirmse et al v. Adler et al., 1933, 311 Pa. 78, 83 [166 A. 566].
"'The question(s) arising from labor disputes have many times been before the courts for solution, but because the matter involves so many intricate details of economic and social life, with the fundamental rights inherent in both contesting parties at stake, it is obvious that these tribunals should not be the ones to decide them.'
"The policy should, in fairness, apply just as well when the employe or the union is the complainant as when the employer is the complainant. And the language of the act makes it clear that it does. So construed, the act is constitutional. See our recent discussion of the constitutionality of the act in Lipoff v. United Food Workers Industrial Union, Local No. 107, et al., XCVIII L.I. 315 (1938)."
Federal courts, in construing the National Labor Relations Act, which is similar in its provisions to those of the Pennsylvania Act, express the same view. In Blankenship v. Kurfman, 7 Cir., 96 F.2d 450, 454, Circuit Judge Treanor said: "The general purpose of the National Labor Relations Act is to provide methods of preventing or eliminating certain 'unfair practices' which have heretofore characterized the relation of employer and employee, and which have obstructed, or tended to obstruct, the free flow of commerce. The act creates certain rights and duties as between employer and employee and provides the procedure necessary to give effect thereto. It seems clear that the only rights which are made enforceable by the act are those which have been determined by the National Labor Relations Board to exist under the facts of each case; and when these rights have been determined, the method of enforcing them which is provided by the Act itself must be followed.And we find no provision in the act which can be construed as intending to create rights for employees which can be enforced in federal courts independently of action by the National Labor Relations Board."
If a Pennsylvania court could not take jurisdiction of a suit by a union against an employer until all other methods of settling a labor dispute in the manner prescribed by statute have been exhausted, certainly this court would have no greater power to do so. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 325, 58 S. Ct. 578, 82 L. Ed. 872.
We cannot see that this situation can be cured by amendment. Certainly plaintiff could not now show compliance with the Pennsylvania Labor Relations Act after this suit was brought, and then go on with the original suit. It follows that the motion of the defendant corporations to dismiss must be granted, and the motion for a preliminary injunction denied.
As to the defendant County Construction Company, the situation as to the preliminary injunction is the same. That company is involved in the labor dispute, and we could not grant a preliminary injunction as to that company any more than we could against the other defendants, because the necessary prerequisites to give this court jurisdiction have not been met either. We therefore will deny plaintiff's motion for a preliminary injunction as to that company.
Orders in accordance with this opinion may be submitted.
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