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November 30, 1955


The opinion of the court was delivered by: MURPHY

Defendant moves to dismiss plaintiff's action for lack of jurisdiction of the subject matter. The problem arises as follows:

Relying upon 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C.A. 185, commonly called the Taft-Hartley Act, *fn1" plaintiff, an unincorporated labor organization, as collective bargaining representative for and on behalf of defendant's *fn2" employees, engaged in an industry affecting commerce, sought to recover vacation pay for each employee. A vacation with pay is in effect additional wages; In re WilLow Cafeterias, Inc., 2 Cir., 1940, 111 F.2d 429, at page 432; In re Public Ledger, Inc., 3 Cir., 1947, 161 F.2d 762, at pages 767, 768; Division of Labor Law Enforcement, State of California v. Sampsell, 9 Cir., 1949, 172 F.2d 400, at page 402. Defendant cites and plaintiff concedes that as a result of the decision in Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 1955, 348 U.S. 437, 75 S. Ct. 489, 99 L. Ed. 510, *fn3" this court does not have jurisdiction to grant the monetary relief requested.

 Notwithstanding that decision, plaintiff presses its prayer under the Declaratory Judgment Act, 62 Stat. 964, as amended 28 U.S.C.A. 2201, 2202, for a decree interpreting the vacation pay provisions of the contract. Such relief was however there sought and denied, albeit without discussion, and see Id., 3 Cir., 1954, 210 F.2d 623, at page 630, '* * * the prayer for declaratory relief as to the meaning of this term of the collective contract must meet a like fate.' *fn4" In accord, see International Longshoremen's & Warehousemen's Union v. Libby, McNeill & Libby, 9 Cir., 1955, 221 F.2d 225.

 The Declaratory Judgment Act is an enabling act which confers discretion in the court rather than an absolute right upon the litigant. It is procedural only. Aetna Life Ins. Co. v. Haworth, 1937, 300 U.S. 227, at page 240, 57 S. Ct. 461, 81 L. Ed. 617. Although enlarging the range of remedies available, it did not extend the jurisdiction of federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, at page 671, 70 S. Ct. 876, 94 L. Ed. 1194. The Act is limited in its operation to cases which would be within their jurisdiction if affirmative relief were being sought. Southern Pacific Co. v. McAdoo, 9 Cir., 1936, 82 F.2d 121; Aralac, Inc., v. Hat Corp. of America, 3 Cir., 1948, 166 F.2d 286, at pages 290, 291; Powers v. United States, 7 Cir., 1955, 218 F.2d 828, at page 829, "the issue must be real, the question practical and not academic and the decision must finally settle and determine the controversy." Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, at pages 241, 243, 73 S. Ct. 236, 240, 97 L. Ed. 291.

  Finally, as to plaintiff's prayer for a stay of proceedings and an order directing defendant to proceed to arbitration, 9 U.S.C.A. 3, 4, *fn5" assuming arguendo that there was no waiver or default on plaintiff's part and that there was an arbitrable issue, the court lacks jurisdiction to grant such relief. *fn6"

 'The United States Arbitration Act does not of itself confer independent federal jurisdiction. Sec. 4 *fn7" of the Act limits its application to actions over which the District Court would have jurisdiction under Title 28 except for the arbitration agreement. Sec. 4, Title 9 U.S.Code, San Carlo Opera Co. v. Conley, D.C., 72 F.Supp. 825, affirmed 2 Cir., 163 F.2d 310; Krauss Bros. Lumber Co. v. Louis Bossert & Sons, Inc., 2 Cir., 62 F.2d 1004; Amalgamated Ass'n, etc., v. Southern Bus Lines, Inc., 5 Cir., 1951, 189 F.2d 219, 221.' Mengel Co. v. Nashville Paper Products & Specialty Workers Union, 6 Cir., 221 F.2d 644, at page 648. Accord: Newspaper Guild of Pawtucket v. Times Pub. Co., D.C.R.I.1955, 131 F.Supp. 499, at page 501. *fn8"

 Lacking jurisdiction the court has no alternative but to dismiss. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, at page 184, 56 S. Ct. 780, 80 L. Ed. 1135.

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