(3rd Cir. 1964) the Court stated (p. 861):
'The complaint properly averred a cause of action under § 301 of the Act. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 8 L. Ed. 2d 462 (1962). Hence the District Court had jurisdiction over the claim. Whether such averments have merit or not is immaterial on the question of jurisdiction since that is determined from the face of the complaint. Hall v. Sperry Gyroscope Co., etc., 183 F.Supp. 891 (D.C.N.Y.1960).'
Local 107 contends that plaintiffs' allegations of a breach by the union of its duty of fair representation 'arguably' constitute an unfair labor practice under the National Labor Relations Act, as amended, and are, therefore, within the exclusive competence of the National Labor Relations Board. San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). We think Local 107's contention cannot prevail in the particular circumstances of this case. Plaintiffs assert a violation of the collective bargaining agreement as the result of a conspiracy between the employer and officials of Local 107 and other teamster representatives 'to obtain a decision by the Joint Area Committee, based upon facts not of record, adverse to the seniority rights of plaintiffs.' This allegation, we think, brings the case within the holding of Humphrey v. Moore, 375 U.S. 335, at p. 344, 84 S. Ct. 363, at p. 369, 11 L. Ed. 2d 370 (1964):
'Although there are differing views on whether a violation of the duty of fair representation is an unfair labor practice under the Labor Management Relations Act, it is not necessary for us to resolve that difference here. Even if it is, or arguably may be, an unfair labor practice, the complaint here alleged that Moore's discharge would violate the contract and was therefore within the cognizance of federal and state courts, Smith v. Evening News Assn., supra, (371 U.S. 195, 83 S. Ct. 267, 9 L. Ed. 2d 246), subject, of course, to the applicable federal law.'
Indeed, the allegations in the instant action would appear to present a stronger case for the plaintiffs than Humphrey, since, in Humphrey, the complaint did not charge employer participation in the union's breach of its duty of fair representation.
We conclude, therefore, that this Court has jurisdiction of the action.
Local 107 further contends that the complaint seeks merely a review of the merits of the Joint Area Committee award, which this Court is powerless to grant.
Article 7, Section 4(b), of the contract provides:
'Where the Joint Area Committee by majority vote settles a dispute, such decision shall be final and binding on both parties with no further appeal.'
In the face of such a provision, we have no power to substitute our construction of the contract for that of the Joint Area Committee. 'It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.' United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S. Ct. 1358, 1362, 4 L. Ed. 2d 1424 (1960).
However, plaintiffs' complaint is not directed merely to the Committee's interpretation of the contract. They assert that that construction was reached as the result of conspiratorial action between Local 107 and other teamster representatives on the one hand, and Hemingway and Novick on the other. The distinction lies at the base of the Humphrey decision, where the complaint alleged that the decision of a Joint Conference Committee dovetailing the seniority lists of the two companies violated Moore's rights because: (1) the Joint Committee exceeded its powers under the existing collective bargaining contract in making its decision dovetailing seniority lists, and (2) the decision of the Committee was brought about by dishonest union conduct in breach of its duty of fair representation. So far as here material, the decision held that both grounds stated a claim under 301 of the Act.
We think Local 107's contention that plaintiffs have no standing to attack the decision of the Joint Area Committee, is ruled, adversely to its contention, by the decision in Humphrey v. More, supra.
Finally, Local 107 asserts that the complaint fails to state a cause of action upon which relief can be granted. The test to be applied in determining the sufficiency of the complaint was stated by the Court of Appeals of this Circuit in Frederick Hart & Co. v. Recordgraph Corporation, 169 F.2d 580 (3rd Cir. 1948), at p. 581:
'It is also well-settled that on a motion to dismiss the complaint must be viewed in the light most favorable to the plaintiff and that the complaint should not be dismissed unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim; further, no matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it.'
Careful consideration of the complaint in light of Humphrey v. Moore, supra, which presented a fairly analogous situation, persuades us that the complaint states a cause upon which relief can be granted.
Accordingly, we make the following
Now, September 3rd, 1964, it is ordered that Local 107's motion to dismiss the complaint be, and it is, denied.
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