in the future, withdraw its assent to plaintiff's employment by defendants -- and indeed, it does not appear from the facts before me, whether or not Local No. 830 had the right to withdraw its assent. I do not think that the existence of a possibility that an event might occur in the future which would terminate the employment, renders that employment 'temporary'; if that were so, then every employment at will, for instance, would be 'temporary' -- a conclusion which I think would be untenable.
I have considered the two cases cited by defendants in support of their contention that the 'closed shop' agreement alleged in the instant case renders plaintiff's employment 'temporary' -- Johnson v. Interstate Transit Lines, D.C., 71 F.Supp. 882 and Bryan v. Griffin, D.C., 67 F.Supp. 714. Both of these cases are clearly distinguishable on their facts from the instant case.
Finally, defendants attack the second count of the complaint on the ground that not only does it fail to state a good cause of action, but that this Court lacks jurisdiction of the subject matter. As I have stated previously, plaintiff seeks to recover, in the second count, the amount of money by which he alleged he had been 'underpaid' during his tenure of employment with defendants, both prior to, and subsequent to his service in the Navy. Defendants point to the fact that no diversity of citizenship is alleged, and contend that the second count is 'not based upon any Act of Congress.' Plaintiff contends that the second count is based on the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq.
Assuming, but not deciding, that the second count of the complaint pleads facts upon which relief could be granted, I think that the second count must be dismissed for lack of jurisdiction. I do not think that the cause of action pleaded in the second count arises under the Selective Training Service Act. That Act is intended to protect the veteran from loss of ground in his employment by reason of his service in the armed forces, by requiring the employer to restore the veteran to his former position, or to a position of like seniority, status, and pay; and, in so doing, to consider the veteran's time spent in the armed forces as time spent in his employment. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct. 1105. In the instant case, the pay which plaintiff received after his restoration to employment was exactly the same pay which he received before he entered the Navy. If, as plaintiff alleges, that pay was in fact less than he should have received, I cannot see how the resulting underpayment was in any sense a result or an incident of his employment having been interrupted by military service.
The cause of action pleaded in the first count of the complaint is clearly within the purview of the Selective Training and Service Act, and jurisdiction of that cause of action is therefore conferred on this Court.
The cause of action pleaded in the second count of the complaint does not, as I have decided, arise under the Selective Training and Service Act. We therefore have a situation where the sole basis of jurisdiction alleged is the existence of a federal question and two causes of action are pleaded, only one of which is federal in character. In that situation, this Court may not dispose of the non-federal cause of action. Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148; Weintraub v. Fitzgerald Bros. Brewing Co., D.C., 40 F.Supp. 473; R.C.A. Mfg. Co. Inc. v. Columbia Recording Corp., D.C., 36 F.Supp.247.
Defendants' motion to dismiss is denied as to the first count of the complaint, and is granted as to the second count.