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NEW YORK COAT v. SUSSEX SPORTSWEAR

August 16, 1984

NEW YORK COAT, SUIT, DRESS, RAINWEAR AND ALLIED WORKERS' UNION ILGWU, Plaintiff,
v.
SUSSEX SPORTSWEAR, INC., and Charles Alfano, Defendants



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 Defendants have filed a motion to dismiss for lack of jurisdiction. The complaint involves two counts, the first of which is based on the Labor Management Relations Act, 29 U.S.C. 141 et seq., and the second of which is based on the Pennsylvania Wage Payment and Collection Law 43 P.S. 260.1, et seq. The facts which support both counts involve the non payment by defendant, Sussex Sportswear, of $3,191.32 in holiday pay to its employees. Plaintiff alleges that defendant has violated its collective bargaining agreement in two instances. First, defendant did not pay the $3,191.32 when the various holidays occurred. Second, the dispute was submitted to binding arbitration and after the impartial chairman ordered the defendant to pay, it still did not do so.

 Defendants, in the motion to dismiss, argue that the court has no subject matter jurisdiction over the federal claim and no pendent jurisdiction over the state claim. We will not grant the motion to dismiss as to count one, but we will grant it as to count two with leave to plaintiff to amend.

 Although the plaintiff bears the ultimate burden of proving jurisdiction, there is a natural reticence on the part of the court to grant a motion to dismiss an apparently colorable claim. Further, it is well established that when the court reviews a motion to dismiss, the allegations of the complaint are assumed to be true and are examined in a light most favorable to the plaintiff. Pettus v. Veterans Administration Hospital Philadelphia, 517 F. Supp. 656, 657 (E.D.Pa.1981). It has been held that "The applicable test for determining jurisdiction on the face of the pleadings is not whether the plaintiff could actually recover, but whether the Federal claim alleged is so patently without merit as to justify the District Court's dismissal for want of jurisdiction." Sisk v. Texas Parks and Wildlife Department, 644 F.2d 1056, 1058 (5th Cir.1981).

 Plaintiff bases its first claim on the Labor Management Relations Act. That Act confers jurisdiction on United States District Courts to hear "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter." 29 U.S.C. § 185(a). "Affecting commerce" means "in commerce or burdening or obstructing commerce or the free flow of commerce or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." 29 U.S.C. § 152(7). *fn1" Plaintiff has alleged that it is a labor organization representing employees and that defendant is an employer in an industry affecting commerce within the meaning of the Act. (Complaint, para. 2, 3).

 Defendants' motion to dismiss is based on its assertion that it is not an industry affecting commerce as defined by the Act, because it was involved in essentially intrastate activities during the times relevant to count one of the complaint. Plaintiff has clearly alleged a proper jurisdictional predicate for its lawsuit, however, and defense counsel's bald allegation to the contrary is not adequate to support a motion to dismiss. For this reason, we deny the motion to dismiss as to count one. For future reference, however, we note that case law on the meaning of "industry affecting commerce" establishes that a business which is engaged in intrastate activities can be found to be within the jurisdiction of the court. The United States Supreme Court in NLRB v. Fainblatt, 306 U.S. 601, 59 S. Ct. 668, 83 L. Ed. 1014 (1939) interpreted whether the National Labor Relations Act, which has since been amended by the National Labor Management Act, applied to an employer which was not itself engaged in interstate commerce, but which processed materials that had been and later would be distributed in interstate commerce. The Act, in both its original and its amended form seeks to prevent the disturbing of interstate commerce by labor disputes. In Fainblatt it was said:

 
Examining the Act in light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis.
 
There are not a few industries in the United States which, though conducted by relatively small units, contribute in the aggregate a vast volume of interstate commerce. Some, like the clothing industry, are extensively unionized and have had a long and tragic history of industrial strife. It is not to be supposed that Congress, in its attempted nationwide regulation of interstate commerce through the removal of the causes of industrial strife affecting it, intended to exclude such industries from the sweep of the Act. . . . The test of . . . jurisdiction is not the volume of interstate commerce which may be affected, but the existence of a relationship of the employer and his employees to the commerce such that . . . a labor dispute [would burden or obstruct] commerce. (607-08, 59 S. Ct. at 672)

 The court in Local Joint Executive Board, Hotel and Restaurant Employees and Bartenders International Union v. Joden, 262 F. Supp. 390 (D.Mass.1966) quoted NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S. Ct. 312, 9 L. Ed. 2d 279 (1963).

 
This court has consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the commerce clause . . . Congress has explicitly regulated not merely transactions or goods in interstate commerce but activities which in isolation might be deemed to be merely local but in the interlacings of business across state lines adversely affect such commerce.

 Id. at 394.

 Thus, case law clearly indicates that an employer need not be in commerce to affect commerce. In Reliance Fuel Oil the court said that

 
whether or not practices may be deemed by Congress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total ...

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