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FOOD

December 27, 1946

FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA, LOCAL 186, et al.
v.
SMILEY et al.



The opinion of the court was delivered by: GANEY

This matter is before the court on a petition by a labor union local for an injunction against the members of the Pennsylvania Labor Relations Board in their official capacity, The American Tobacco Company, and the Employees Representation Committee of the Tobacco Company, to enjoin them from proceeding in any manner under the Pennsylvania Labor Relations Act *fn1" in connection with the American Tobacco Company's case *fn2" which is now pending before the Pennsylvania Labor Relations Board.

On May 5, 1944, the National Labor Relations Board (hereinafter referred to as the National Board) certified the plaintiff, Food, Tobacco, Agricultural and Allied Workers Union of America, Local 186 *fn3" (hereinafter referred to as the Union) as the exclusive bargaining agent for all the production employees in the plant of the American Tobacco Company (hereinafter referred to as the Company) in Philadelphia, Pennsylvania. On or about May 1945, the Company placed into effect in its Philadelphia plant certain conditions of employment upon which agreement had been reached between it and the Union. On October 15, 1945, the Union called a strike against the Company for the purpose of securing a wage increase and other employment benefits for the employees of the Company. On February 19, 1946, while the strike was still in effect, the Employees Representation Committee (hereinafter referred to as the Committee), a committee of production employees of the Company filed a petition with the Pennsylvania Labor Relations Board (hereinafter referred to as the State Board) for the purpose of having itself certified as the collective bargaining agent for the same group of employees for which the Union had been certified as the exclusive bargaining agent. On March 4, 1946, despite the fact that the Union had filed a motion objecting to the jurisdiction of the State Board over the subject matter of the case, because the National Board had previously assumed jurisdiction by certifying it (the Union) as the exclusive bargaining agent for the unit of employees in question, the State Board conducted a hearing to ascertain whether an investigation was necessary for the purpose of determining whether or not a majority of the unit desired a particular representative to bargain collectively for them. Consequently the Union brought this proceeding to enjoin the State Board, the Company and the Committee from taking any further steps in the matter.

 On February 26, 1946, after a preliminary bearing was had, this court entered a decree granting the motion for a preliminary injunction. In the meantime, on April 9, 1946, a contract, to last for a period of one year, covering wages, hours and working conditions for the production employees at the Philadelphia plant, was entered into between the Company and the Union. On April 22, the State Board filed a 'second' motion to dismiss the complaint for the reasons, in addition to the fact that it failed to state a claim upon which relief can be granted, that (1) the amount in controversy, exclusive of interest and costs, is less than three thousand dollars, (2) the defendant has not been properly served, and (3) the venue has been improperly laid in the eastern district of Pennsylvania. On the same day, the State Board filed a motion to dissolve the preliminary injunction.

 This court has jurisdiction over the subject matter of this action by virtue of Section 24(8) of the Judicial Code, 28 U.S.C.A. § 41(8), which provides that the District Courts shall have jurisdiction: 'Of all suits and proceedings arising under any law regulating commerce.' American Federation of Labor et al. v. Watson, Atty. Gen. of Florida, et al., 327 U.S. 582, 591, 66 S. Ct. 761, 765, 90 L. Ed. 873. When the District Courts have jurisdiction under this section the amount in controversy is immaterial and therefore allegation and proof of a jurisdictional amount are unnecessary. Parker v. Brown, 317 U.S. 341, 349, 63 S. Ct. 307, 87 L. Ed. 315; 1 Moore, Federal Practice (1938), Section 8.06.

 Before determining the merits of the State Board's contention that service on it was improperly made, we must determine whether the State Board has waived its right to raise that defense. Despite the fact that a defendant is improperly served, the court may still acquire jurisdiction over his person where he waives his objections to the insufficiency of the service of process either expressly, by failure to make the objection in time, or by failure to make the objection in the proper manner. Lamantia v. United States, 5 Cir., 5 F.2d 68; 1 Moore, Federal Practice (1938), sections 12.03, 12.10.

 'Civil Procedure Rule 12, 28 U.S.C.A.following section 723c, requires all such jurisdictional defenses to be included in a single motion or in the answer and provides that all defenses of this kind which are not included in a motion, if one is made, shall be treated as waived.' Branic v. Wheeling Steel Corporation, 3 Cir., 152 F.2d 887, 888. See also Orange Theatre Corporation v. Rayherstz Amusement Corporation, 3 Cir., 139 F.2d 871, certiorari denied, Orange Theatre Corp. v. Brandt, 322 U.S. 740, 64 S. Ct. 1057, 88 L. Ed. 1573. Therefore the State Board must be taken to have waived any objection as to the jurisdiction of this court over its person by failing to include that objection in its first motion to dismiss the complaint. It is true that the State Board did raise the question of the improper service of the summons and the complaint in its 'second' motion to dismiss the complaint. However, that motion was filed too late. Carter v. Powell, 5 Cir., 104 F.2d 428; Ginn v. Biddle, Atty. Gen. of U.S., et al., D.C.E.D. Pa., 60 F.Supp. 530. By the same token, the State Board must be taken to have waived its right to raise the question of improper venue. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 49 S. Ct. 98, 73 L. Ed. 252; Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167, 128 A.L.R. 1437; Robinson v. Coos Bay Pulp Corporation, 3 Cir., 147 F.2d 512; Iselin v. LaCoste, 5 Cir., 147 F.2d 791; Bogar v. Ujlaki, D.C.W.D. Pa., 4 F.R.D. 352; 1 Moore, Federal Practice (1938), sections 4.09, 8.05, 12.04. But compare Martin v. Lain Oil & Gas Co., D.C.E.D. Ill., 36 F.Supp. 252, 254.

 Subdivisions (a) and (c) of section 9 of the National Labor Relations Act, 29 U.S.C.A. § 159(a) and (c), provide:

 '(c) Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 160 of this title or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.'

 Subdivisions (a) and (c) as amended, *fn4" of section 7 of the Pennsylvania Labor Relations Act, 43 P.S. § 211.7(a) and (c), are respectively identical and similar to the corresponding subdivisions of section 9 of the National Act.

 The plaintiff does not challenge the constitutionality of the section of the State Statute by virtue of which the State Board purported to assume jurisdiction. What it does challenge, however, is the right of the State Board to assume jurisdiction over this dispute. Before deciding this question, we must dispose of the State Board's contention that the administrative remedy provided by the State Act gives the plaintiff a complete and adequate remedy at law in the state courts. If the State Board is right in its contention, the plaintiff must be relegated to its administrative remedy.

 Subsection (b) of section 9 of the State Act, as amended, 43 P.S. § 211.9(b) provides that 'Any person aggrieved by a final order of the board granting or denying, in whole or in part, the relief sought, or by an order certifying a collective bargaining agent of employees, may obtain a review of such order in the court of common pleas.' It further provides that 'The jurisdiction of the court of common pleas shall be exclusive, and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court (of Pennsylvania) on appeal' by the board or any party aggrieved. But subsection (c) of the same section provides that the commencement of proceedings under subsection (b) 'shall not, unless specifically ordered by the court, operate as a stay of the board's order.' (Emphasis supplied.) This subsection has not been condemned as being unconstitutional by the courts of Pennsylvania. Therefore this court cannot say that the plaintiff has, by virtue of the State Act, a complete and adequate remedy at law in the state courts. According to the express language of the statute, the Union could not obtain a review to determine whether the State Board had jurisdiction over the dispute until an order of certification had been made. If the State Board is without jurisdiction it would have no authority to conduct an investigation, hold an election or make an order certifying a collective bargaining agent. If the Union had waited until an order of certification was made by the State Board and had taken proceedings under section 9(b) of the State Act to have the question of the State Board's jurisdiction reviewed, such proceedings, according to section 9(c), would not have operated as a stay of the order. The fact that the state court might have specifically ordered the State Board's order to be stayed would not make the legal remedy adequate. Pacific Telephone & Telegraph Co. v. Kuykendall, 265 U.S. 196, 44 S. Ct. 553, 68 L. Ed. 975; Mountain States Power Co. v. Public Service Commission of Montana et al., 299 U.S. 167, 170, 57 S. Ct. 168, 81 L. Ed. 99. Compare the Pennsylvania statute cited in the foot note to Driscoll et al. v. Edison Light & Power Co., 307 U.S. 104, page 109, 59 S. Ct. 715, 83 L. Ed. 1134. Nor could the Union obtain an injunction in the state courts to restrain the defendants from proceeding any further in the matter. It is apparent that it is a case 'involving or growing out of a labor dispute.' The Pennsylvania Labor Anti-Injunction Act *fn5" would prohibit the state courts from complying with a request for an injunction in such a case. Cf. Western Pennsylvania Hospital et al. v. Lichliter, et al., 340 Pa. 382, 17 A.2d 206, 132 A.L.R. 1146.

 Since the Union does not have an adequate remedy at law in the state courts, we must determine whether the State Board had jurisdiction over the dispute. It appears to be well settled that 'whenever a question affecting (interstate *fn6" ) commerce arises concerning the representation of employees' the National Board, when its jurisdiction is invoked, has the authority to investigate such controversy and to certify the bargaining agent. There need not be an actual dispute *fn7" ; the possibility that a dispute will affect interstate commerce is sufficient to give the National Board jurisdiction. When the National Board has acted in the field permitted by the National Act, its authority is paramount to any other board. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352; Consolidated Edison Company v. N.L.R.B., 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126; N.L.R.B. v. Bradford Dyeing Association, 310 U.S. 318, 60 S. Ct. 918, 84 L. Ed. 1226. In the absence of the exercise of its authority by the National Board, even though there is a question affecting interstate commerce, a state board may assume jurisdiction to conduct hearings and investigations, and to certify a collective bargaining agent, provided the state act or the orders of the state board *fn8" do not impair the status of the employees or cause a deprivation of any collective bargaining rights protected or granted them by the National Act. The mere enactment of the National Act did not preclude state regulations in the same field *fn9" . Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S. Ct. 820, 86 L. Ed. 1154; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 465, 65 S. Ct. 1384, 89 L. Ed. 1725. Where a state board has ...


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