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June 24, 1981

Raymond L. JENKINS
UNITED STEEL WORKERS OF AMERICA and United Steelworkers of America Local 7309 and National Can Corporation

The opinion of the court was delivered by: MCGLYNN


This case is before the Court on plaintiff's motion to remand to state court for lack of federal jurisdiction and defendants' motions for summary judgment.

 Plaintiff, Raymond L. Jenkins, was an employee of defendant National Can Corporation ("Company") until October 11, 1977 when he was discharged for excessive absenteeism. In July of 1977, the Company suspended Jenkins for three days after repeated warnings about his absences. From the date of his return from suspension until his discharge, plaintiff was absent nine days, bringing his total for the year to twenty-eight. Although the plaintiff presented doctors' notes, the Company maintained such notes would not provide a blanket excuse for absenteeism.

 On the day of plaintiff's discharge, defendant United Steelworkers of America, Local 7309 ("Union") filed a grievance with the Company on Jenkins' behalf alleging that he was wrongfully discharged and demanding reinstatement with full seniority and pay. The Union processed the grievance through the third step of a four step grievance procedure, which was answered by the Company on December 19, 1977. The collective bargaining agreement provided that requests for arbitration were to be received within five days after receipt of the third step answer, but the Union took no further action until March of 1978 when it indicated by letter to the Company that the Jenkins case would be appealed to arbitration.

 About this time, Bernard Staub replaced Fred Clarici as Staff Representative of the Union. On August 1, after discussion with Clarici, Company representative John Yungert, and the Union president, Staub withdrew the grievance from arbitration. At no time during the meetings with Clarici, Yungert, and the Union president was Staub made aware of the facts of the Jenkins case or the merits of his grievance, nor did he ever meet with Jenkins.

 After learning of the withdrawal, plaintiff filed suit in the Court of Common Pleas of Bucks County against the local Union and its national organization alleging negligent representation during the grievance process. The action was removed by the defendants to this Court pursuant to the general removal statute, 28 U.S.C. § 1441, with jurisdiction founded on section 301(a) of the Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. § 185(a). Plaintiff acquiesced in this motion and filed an amended complaint naming the Company as an additional defendant. In this complaint, plaintiff alleges violation of the union contract as well as negligent representation against the Union defendants, and alleges wrongful discharge against the Company defendant. All defendants moved for summary judgment. Plaintiff answered, moving additionally that the case be remanded to state court for lack of federal jurisdiction.


 Initially, it should be noted that plaintiff's failure to challenge removal cannot confer jurisdiction on this Court which it does not otherwise possess. Medlin v. Boeing Vertol Co., 620 F.2d 957 (3d Cir. 1980). If it appears anytime before final judgment that this Court lacks jurisdiction, the case must be remanded to a proper state forum. 28 U.S.C. § 1447(c).

 A. Union Defendants

 Plaintiff challenges the jurisdiction of this Court on the ground that Union conduct in processing his grievance constitutes mere negligence, a cause of action not properly brought originally in federal court under the Labor Management Relations Act. Defendants urge that jurisdiction may be exercised pursuant to section 301(a) of that act which states:

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. 29 U.S.C. § 185(a).

 The fact that plaintiff has not specifically mentioned section 301 is not determinative since the Court must examine the true substance of the complaint. Medlin, id., at 962. The substance of plaintiff's complaint contains two distinct theories of recovery against the Union: (1) violation of the union contract and (2) ...

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