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March 17, 1971

Avco Corporation, Plaintiff,
Local Union 787, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America et al., Defendants

Muir, D. J.

The opinion of the court was delivered by: MUIR

Avco Corporation filed a complaint in equity in the Court of Common Pleas of Lycoming County on February 26, 1971, seeking an injunction against the defendant labor unions and certain of its employees. On March 2, 1971, the action was removed to this court by the defendants. Avco moved immediately to remand. Alternatively, a preliminary injunction is sought enjoining the defendants from engaging in any action which would discourage employees from accepting any overtime assignment.

 Avco Corporation is a Delaware corporation which manufactures airplane engines and related products at its Lycoming Division, in Williamsport, Pennsylvania. The defendant unions represent approximately 900 employees at the plant. The parties have executed a collective bargaining agreement covering these employees. On February 21, 1971, defendant local union adopted a resolution forbidding overtime work by its members, plaintiff's employees, until all employees laid off by Avco have been returned to work. The plaintiff contends that the unions agreed in Article XV of the bargaining agreement that their members would work overtime and thus the present refusal is a partial strike in breach of the no-strike provision (Article XVII) in the contract. The unions take the position that overtime work is voluntary and thus their action is not in violation of the labor agreement.

 At the outset we noted that plaintiff has moved to remand this action to the Court of Common Pleas of Lycoming County. It is its position that removal in the instant case frustrates the will and intent of Congress as embodied in § 301, LMRA, 29 U.S.C. § 185(a), wherein the jurisdiction of the State courts was preserved, and that removal was not necessary to protect the federal rights of the defendant unions.

 29 U.S.C. § 185(a) provides:

"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."

 In Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 560, 20 L. Ed. 2d 126, 88 S. Ct. 1235 (1968), the Court said:

"An action arising under § 301 is controlled by federal substantive law even though it is brought in a state court. Removal is but one aspect of the 'primacy of the federal judiciary in deciding questions of federal law.'
It is thus clear that the claim under this collective bargaining agreement is one arising under the 'laws of the United States' within the meaning of the removal Statute. 28 U.S.C. § 1441(b). It seems likewise clear that this suit is within the 'original jurisdiction' of the District Court within the meaning of 28 U.S.C. §§ §§ 1441(a) and (b)."

 Accordingly, the defendant unions had a clear statutory right to remove this action to this Court. The motion to remand will therefore be denied.

 Turning to the question of whether or not a preliminary injunction should be granted, we are guided by the recent Supreme Court decision in Boys' Market, Inc. v. Retail Clerks's Union, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970). In this case the Court adopted the principles previously set forth in the dissenting opinion of Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 8 L. Ed. 2d 440, 82 S. Ct. 1328 (1962).

 As set forth in the dissent in Sinclair and reiterated in Boys' Market, a "District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunction order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity -- whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance." 370 U.S. at 228.

 The initial question is therefore whether or not both parties are contractually bound to arbitrate the subject matter of the present dispute.

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