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KEIP v. TONOLLI CORP.

March 26, 1985

ROBERT W. KEIP, Plaintiff,
v.
TONOLLI CORPORATION, Defendant



The opinion of the court was delivered by: CONABOY

 The above-captioned matter is before this Court on removal from the Court of Common Pleas of Carbon County pursuant to 28 U.S.C. § 1446(e). Plaintiff's complaint alleges that he was employed by Defendant on or about August 27, 1984, and remained employed until on or about October 6, 1984 when he was informed that he was "laid off". Further, Plaintiff alleges that Defendant Tonolli Corporation (Tonolli) has hired employees to perform work substantially the same as had been performed by Plaintiff and that Defendant has either refused or ignored Plaintiff's request to be rehired. Plaintiff seeks lost wages, reinstatement and a sum uncertain for emotional and psychological trauma, embarrassment and humiliation.

 The Defendant asserts Section 301 of the Labor Management Act of 1947, 29 U.S.C. § 185(a) as the basis for its federal jurisdiction claim. Section 185(a) provides that:

 
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 support of its claim of federal jurisdiction, Defendant offers a collective bargaining agreement entered into by Defendant Tonolli and Local #96, Mid Atlantic Conference Board of International Molder and Allied Workers, AFL-CIO CLC (the Union).

 Presently before the Court is Defendant's motion to dismiss. The parties have submitted their respective briefs and this matter is now ripe for our consideration.

 Defendant's motion to dismiss rests on the contentions that Plaintiff was covered by the above-noted bargaining agreement, that therefore, jurisdiction is proper under 29 U.S.C. § 185(a), that § 185(a) is controlling and that this is a question of contractual right to dismiss a probationary employee.

 I

 We first must decide the applicability of the agreement to Plaintiff Keip. The bargaining agreement became effective on October 4, 1983 and continues in force until October 3, 1985. Ergo, as to time, it was in effect before, throughout and after the occurrences here in question.

 Article I, section one of the bargaining agreement recognizes the Union as the exclusive representative for grievances of employees of set classification, such classifications including the "floater" classification. Since Plaintiff had been employed by Tonolli as a "floater" the agreement pertains to him via his job classification.

 Article VII, section three provides that:

 
Employees shall be considered to be on probation for their first forty-five (45) days worked. During such period, an employee is subject to termination without cause or notice and without access to the grievance procedure. Upon successful completion of the probationary period, the employee will be placed on the seniority list effective the date of hire.

 Further, the entire agreement uses the term "employees" as opposed the term "union members."

 Lastly, Article III, section one of the agreement stipulates that the agreement resulted from bargaining conducted pursuant to the National Labor Relations Act. The agreement is between the employer corporation and a labor organization representing employees in an industry affecting ...


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