Petition — McCarthy v. Charles D. Bonanno Linen Service, Inc.

Supreme Court brief1983

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No. -

In the

Supreme Court of the United States.

Octroser TERM, 1983.

WILLIAM J. McCARTHY, Er At.,

PETITIONERS,

CHARLES D. BONANNO LINEN SERVICE, INC., et At.,

RESPONDENTS.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

James T. Grapy,

Counsel of Record

GasriEL O. DuMont, Jr.,

Grapy, DuMont & Dwyer,

75 Federal Street,

P.O. Box 1598,

Boston, Massachusetts 02205.

(617) 426-9450

BOSTON , MASSACHUSETTS

BATEMAN & SLADE, INC.

Questions Presented for Review.

1. Whether the conclusion of the Court of Appeals for the

First Circuit, that the scope of the prohibitions set out in

§ 8(b)(4) of the National Labor Relations Act, 29 U.S.C.

§ 158(b)(4), includes union activity at a facility occupied sole-

ly by the primary employer if an object of the union’s activity

is to coerce third parties, is at variance with the holdings of

this Court?

2. Whether the Court of Appeals for the First Circuit erred

in interpreting 28 U.S.C. § 1441(b) as authorizing the

severence and removal of a federal claim even though the non-

removable state law claims from which the federal claim is

severed are not “separate and independent” from the federal

claim within the meaning of 28 U.S.C. § 1441l(c)?

List of Parties to the Proceeding Below.

The plaintiff-appellee below was Charles D. Bonanno

Linen Service, Inc.

The defendants-appellants were Teamsters, Chauffeurs,

Warehousemen and Helpers Union Local No. 25, William J.

McCarthy, Herbert T. Salter, Gerild J. Halloran, Peter For-

rest, Arthur Moran, Jack Kerwin, John O'Malley, Ernest Zim-

merman and Joseph Caico.

The instant writ is submitted on behalf of Teamsters,

Chauffeurs, Warehousemen and Helpers Union Local No. 25.

Table of Contents.

Citations to opinions below

Jurisdictional statement

Applicable statutory provisions

Statement of the case

Reasons for allowing the writ

I. The First Circuit’s conclusion regarding the scope

.of actionable conduct under § 303 of the Labor-

Management Relations Act is at variance with long-

standing holdings of this court 7

II. The United States Court of Appeals for the First

Circuit erred in interpreting 28 U.S.C. § 1441(b)

as authorizing the severance and removal of a fed-

eral claim even though the non-removable state

claims from which the federal claim is severed are

not separate and independent from the federal

claim within the meaning of 28 U.S.C. § 1441(c) 13

Conclusion 94

Appendix follows page 24

oOo wondDs ND =

Table of Authorities Cited.

CASES.

American Fire & Casualty v. Finn, 341 U.S. 6 (1951) 13,

14, 16

Austin v. General American Life Insurance Co., 498 F.

Supp. 844 (N.D. Ala. 1980) 17, 18n, 19

Bonanno Linen Service, Inc. v. McCarthy, 532 F.2d

189 (1st Cir. 1976) 5

ii TABLE OF AUTHORITIES CITED.

Charles D. Bonanno Linen Service, Inc. v. NLRB

454 U.S. 404 (1982) 5

Complete Auto Transit, Inc. v. Reis, 451 U.S. 401

(1981) 6

Galveston, Harrisburg & San Antonio Railway Co. v.

Hall, 70 F.2d 608 (5th Cir. 1934) 14, 20, 22, 23

Gully v. First National Bank, 299 U.S. 109 (1936) 8

Local 761, International Union of Electrical Workers

v. NLRB, 366 U.S. 667 (1961) 10, 11

New England Concrete Pipe Corporation v. D/C Sys-

tems of New England, 658 F.2d 867 (lst Cir. 1981) 16

Phillip’s Petroleum Co. v. Texaco, Inc., 415 U.S. 125

(1974) 8

Shamrock Oil & Gas Corporation v. Sheets, 313 U.S.

100 (1941) 15

Southland Corp. v. Estridge, 456 F. Supp. 1296 (C.D.

Ca. 1978) 19

The Pacific Railroad Removal Cases, 115 U.S. 1 (1885) 14,

20, 21, 22

United Steelworkers v. NLRB, 376 U.S. 492 (1964) 10, 11

STATUTES.

28 U.S.C. §71 19, 20

28 U.S.C. § 1254/1) 2

28 U.S.C. § 1441 2, 14, 15, 17, 20 et seq.

28 U.S.C. § 1441(b) 7, 13, 14, 15, 16 et seq.

28 U.S.C. § 1441(c) 6, 13, 15, 16, 17 et seq.

29 U.S.C. § 158(b)(4) (National Labor Relations Act,

§ 8(b)(4)) 2, 10, 11, 12, 13 et seq.

TABLE OF AUTHORITIES CITED. iii

29 U.S.C. § 187 (Labor-Management Relations Act,

§ 303) 2,5, 6, 7, 10 et seq.

Employee Retirement Income Security Act of 1974

(ERISA) 18

Taft-Hartley Act 16

MISCELLANEOUS.

Hart & Wechsler, The Federal Courts in the Federal

System, 1211 (2d ed. 1973) 19

No. - .

In the

Supreme Court of the United States.

Octroser TERM, 1983.

WILLIAM J. McCARTHY, er At.,

PETITIONERS,

CHARLES D. BONANNO LINEN SERVICE, INC., et At.,

RESPONDENTS.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Citations to Opinions Below.

The decision of the United States Court of Appeals for the

First Circuit is reported at 708 F.2d 1 (lst Cir. 1983), and is

reproduced in Appendix A of this petition.

The Memorandum and Order of the United States Court of

Appeals for the First Circuit, wherein the petition for rehear-

ing and/or rehearing in banc was denied is unreported but is

reproduced in Appendix B of this petition.

The decision of the United States District Court for the

District of Massachusetts also is unreported but is reproduced

in Appendix C of this petition.

Jurisdictional Statement.

The memorandum and order of the United States Court of

Appeals for the First Circuit denying the timely-filed petition

for rehearing and/or rehearing in banc was entered on June 1,

1983. This Court has jurisdiction over the instant petition

pursuant to 28 U.S.C. § 1254(1).

Applicable Statutory Provisions.

The instant petition raises two issues. The first issue in-

volves the scope of the restrictions on union conduct contained

in § 8(b)(4) of the National Labor Relations Act, 29 U.S.C.

§ 158(b)(4), as made actionable in a federal forum by § 303 of

the Labor-Management Relations Act, 29 U.S.C. § 187. More

particularly, the first issue herein is whether the prohibitions

of § 8(b)(4) include union activity, at the situs of the primary

employer, that is intended to induce and/or coerce third par-

ties to refuse to do business with the primary employer.

The second issue is a matter of general application and in-

volves the meaning and application of the federal removal

statute, 28 U.S.C. § 1441. Specifically, the second issue is

whether the presence of non-removable, non-separate and

non-independent claims in a single proceeding filed in state

court operates as a bar to the removal of a federal claim in the

same proceeding.

The texts of 29 U.S.C. §§ 158(b)(4) and 187 and 28 U.S.C.

§ 144] are set out in Appendix D of this petition.

Statement of the Case.

On August 7, 1975, certain linen companies, including

Charles D. Bonanno Linen Service, Inc.' (hereinafter,

“Bonanno”), commenced an action in the Superior Court of

the County of Suffolk in the Commonwealth of Massachusetts

and named Teamsters, Chauffeurs, Warehousemen and

Helpers Union Local 25 (hereinafter, “Local 25” or “the union

defendant”) and certain of its officers and members (herein-

after, “the individual defendants”) as party-defendants.* In

their complaint, the linen companies alleged that they and

Local 25 were engaged in a labor dispute as a result of the par-

ties’ inability to agree on the terms of a successor collective

bargaining agreement. In addition, it was alleged that —

20. Defendants have indulged in numerous illegal acts

of violence and/or threats of violence towards both Plain-

tiffs’ property and employees, and towards third parties

trying to do business with Plaintiffs, at Plaintiffs’ respec-

tive places of business, including;

(f) ‘The valve of an oil truck was cracked open while

parked at the Roxbury place of business of the Plain-

tiff, Standard, thereby causing approximately eight

hundred gallons of heavy fuel oil to spill onto said

Plaintiff's premises.

(h) Various third parties doing business with Plain-

tiffs have been threatened with physical violence by

' The other companies were Federal National Linen Service Company, In-

dependent Leasing Corporation, Loyal Crown Linen Service, Inc., Morgan

Services, inc., and Standard Linen Service.

*Named as individual party-defendants were William J. McCarthy,

Herbert T. Salter, Gerald J. Halloran, Peter Forrest, Arthur Moran, Jack

Kerwin, John O'Malley, Ernest Zimmerman and Joseph Caico.

pickets identified as linen supply drivers involved in

the labor dispute and members of Local 25.

The acts set forth above and other acts of violence and/ar

threats of violence directed against Plaintiffs’ property

and employees, and against third parties doing business

with Plaintiffs, at Plaintiffs’ respective places of business,

have been coincidental to the duration of the aforemen-

tioned strike and lockouts.

22. By reason of the number of persons from time to

time engaged in the aforementioned picketing, as well as

the manner in which such picketing is being conducted,

and by reason of the acts of violence and threats of

violence directed toward Plaintiffs’ property and employ-

ees and against third parties doing business with Plain-

tiffs, Defendants have wilfully and intentionally attemp-

ted (a) to intimidate, coerce and hinder employees of the

Plaintiffs in going to and from work, and (b) to interfere

with the shipment and/or receipt of goods by Plaintiffs.

As a result of the foregoing, certain employees of the

Plaintiffs have in fact absented themselves from work,

and certain suppliers of the Plaintiffs have refused to

deliver supplies.

In their prayer for relief, the linen companies sought injunc-

tive relief as well as damages for any losses suffered as a result

of the disputed conduct.

On August 11, 1975, the union defendant and the individual

defendants filed a petition for removal to the United States

District Court for the District of Massachusetts, wherein they

asserted that certain of the allegations contained in the com-

plaint “appear to represent an attempt on the part of the

Plaintiffs to state a cause of action within the meaning of 29

U.S.C. § 187 of which this Court has original jurisdiction.”

The linen companies did not challenge the propriety of the re-

moval petition but, rather, successfully moved in the district

court for a preliminary injunction. See Bonanno Linen Serv-

ice, Inc. v. McCarthy, 532 F.2d 189 (1st Cir. 1976).

On April 23, 1976, all the defendants and the linen com-

panies other than Bonanno stipulated to the dismissal of the

claims. Thereafter, the case lay dormant for three years, at

which time the district court advised the parties that the case

would be dismissed for want of prosecution. Subsequently,

Bonanno advised the court that it wished to prosecute the

damage claim but requested that the claim not go forward un-

til the companion claim before the National Labor Relations

Board was resolved. See Charles D. Bonanno Linen Service,

Inc. v. NLRB, 454 U.S. 404 (1982).

During the Bonanno-requested delay, and more than a year

and a half prior to the ultimate trial on the “merits,” the union

defendant and the individual defendants jointly moved to ter-

minate the injunction and remand the action for want of juris-

diction, The district court, however, denied the motion. In

addition, the individual defendants later moved to dismiss the

claims against them prior to the commencement of trial. This

motion was also rejected, and a trial was held during which

only state law tort claims were pursued. Subsequent to the

trial, the district court ruled that Local 25 and certain of the

individual defendants were liable to Bonanno for certain ex-

penses based on state tort law theories.

On appeal to the United States Court of Appeals for the

First Circuit, the union defendant and the individual defend-

ants renewed their jurisdictional claims. First, the union

defendant argued that no federal claim under § 303 of

the Labor-Management Relations Act, 29 U.S.C. § 187, was

stated on the face of Bonanno’s complaint. Second, the in-

dividual defendants contended that it was error for the district

court to assert “pendent-party” jurisdiction over them. Third,

the individual defendants asserted that the claims against

them were not properly removable under 28 U.S.C. § 1441(c),

since same were not “separate and independent” from those

alleged against Local 25. Finally, the union defendant argued

that even if the complaint could be viewed as containing a

claim under § 303, the district court had lacked jurisdiction,

since such a claim was not properly severable from the non-

removable, non-separate and non-independent claims against

the individual defendants.

After briefing and argument, the United States Court for

the First Circuit issued its decision. In that decision, the court

agreed that the district court had lacked “pendent-party”

jurisdiction over the claims against the individual defendants,

especially in light of this Court’s decision in Complete Auto

Transit, Inc. v. Reis, 451 U.S. 401 (1981). In addition, the

court concurred with the contention of the individual defend-

ants that the asserted claims against them were not separate

and independent from those alleged against the union defend-

ant, Local 25. However, the court, citing the allegations set

out above ({ 20(f) and (h) and § 22), ruled that Bonanno’s

complaint did state a claim under § 303. Moreover, the court

concluded that it was permissible to sever and remove to

federal court the § 303 claim and the pendent state law claims

against Local 25, even though those claims were not separate

and independent from the non-removable claims against the

individual defendants.

Reasons for Allowing the Writ.

The decision of the United States Court of Appeals for the

First Circuit is remarkable in two respects. First, its ruling

‘

that Bonanno’s complaint stated a claim under § 303 was

premised expressly and solely on the belief that union activity

at a facility occupied solely by the primary employer could

constitute unlawful secondary activity if an object of the

union’s activity is to coerce third parties. As detailed below,

this premise is fundamentally at variance with the decisions of

this Court. Second, in an apparent ruling of first impression

for a circuit court of appeals, the United States Court of Ap-

peals for the First Circuit interpreted 28 U.S.C. § 1441(b) as

authorizing the severance and removal of a federal claim even

though the non-removable state law claims from which the

federal claim is severed are not separate and independent from

the federal claim. In so ruling, the court misconstrued

§ 1441(b) and, thereby, opened even wider the federal court's

jurisdictional “backdoor.”

I. THe First Crrcurt’s CoNcLusion REGARDING THE SCOPE OF

ACTIONABLE Conpuct UNper § 303 or THE LABoR-MANAGE-

MENT RELATIONS ACT IS AT VARIANCE WITH LONG-STANDING

Ho.pincs oF Tus Court.

The issue of the scope of actionable conduct under § 303 of

the Labor-Management Relations Act, 29 U.S.C. § 187, did

not arise herein because a § 303 claim against Local 25 was

pursued by Bonanno. Rather, since Bonanno litigated only

state law tort claims against both Local 25 and the individual

defendants, the issue of the scope of § 303 related solely to the

threshold question of whether the federal court had jurisdic-

tion to hear any claims in view of the allegations contained in

Bonanno’s complaint.

In this regard, it is well-settled that, for removal purposes,

the necessary federal claim must appear on the face of the

com; aint and, therefore, the necessary elements thereof may

not be introduced through the petition for removal or other

documents. See, e.g., Phillip’s Petroleum Co. v. Texaco, Inc.,

415 U.S. 125, 127-128 (1974); Gully v. First National Bank,

299 U.S. 109, 113 (1936). Indeed, this was the standard by

which the First Circuit Court of Appeals determined whether

a federal claim was present for removal purposes. See 708

F.2d at 3-4.

In applying the standard, the First Circuit Court of Appeals

considered the following allegations:

20. Defendants have indulged in numerous illegal acts

of violence and/or threats of violence towards both Plain-

tiffs’ property and employees, and towards third parties

trying to do business with Plaintiffs, at Plaintiffs’ respec-

tive places of business, including:

(f) The valve of an oil truck was cracked open while

parked at the Roxbury place of business of the Plain-

tiff, Standard, thereby causing approximately eight

hundred gallons of heavy fuel oil to spill onto said

Plaintiff’s premises.*

(h) Various third parties doing business with Plain-

tiffs have been threatened with physical violence by

pickets identified as linen supply drivers involved in

the labor dispute and members of Local 25.

The acts set forth above and other acts of violence and/or

threats of violence directed against Plaintiffs’ property

and employees, and against third parties doing business

with Plaintiffs, at Plaintiffs’ respective places of business,

Interestingly, while { 20(f) was cited by the First Circuit Court of Ap-

peals as describing unlawful secondary activity, there is no suggestion in the

complaint that the “oil truck” belonged to a third party.

have been coincidental to the duration of the aforemen-

tioned strike and lockouts.‘

Id, at 5.

In addition, the First Circuit Court of Appeals quoted the fol-

lowing portion of the complaint’s conclusion:

22. By reason of the number of persons from time to

time engaged in the aforementioned picketing, as well as

the manner in which such picketing is being conducted,

and by reason of the acts of violence and threats of

violence directed toward Plaintiffs’ property and employ-

ees and against third parties doing business with Plain-

tiffs, Defendants have wilfully and intentionally attemp-

ted (a) to intimidate, coerce and hinder employees of the

Plaintiffs in going to and from work, and (b) to interfere

with the shipment and/or receipt of goods by Plaintiffs.

As a result of the foregoing, certain employees of the

Plaintiffs have in fact absented themselves from work,

and certain suppliers of the Plaintiffs have refused to

deliver supplies.®

Id, With one exception,® the above-quoted allegations are the

only ones that refer, in any way, to the impact of the strike ac-

tivities on third parties.

‘While the First Circuit Court of Appeals did not quote the preface and

conclusion to paragraph 20, it is evident that same are an integral part of

language quoted.

* The First Circuit Court of Appeals, in quoting paragraph 22, included

only the references to third parties. See 708 F.2d at 5.

* Paragraph 19 of the com provides that “[m Jass pickets consisting of

members of Local 25 have the passage of oil trucks attempting to

deliver oil to the Roxbury place of business of the Plaintiff, Standard Linen.”

As is obvious from the above, the allegations regarding

interference with third parties that were quoted and relied on

by the First Circuit Court of Appeals expressly provide that

the interference occurred “at Plaintiffs’ respective places of

business” and provide that this interference represented an in-

tentional attempt “to interfere with the shipment and/or

receipt of goods by Plaintiffs.” Nevertheless, the First Circuit

Court of Appeals ruled that these allegations state a claim

under § 303. Thus, the court stated as follows: “Where an

object of the union's activity is to coerce third persons, it can

fall within the prohibitions of § 8(b)(4), depending on the

precise nature of the picketing and the intent of the pickets.”

Id. (Emphasis in original.)

Stripped to its essence, the opinion of the First Circuit Court

of Appeals provides that coercive conduct by the union against

third parties attempting to do business with the primary em-

ployer can be violative of @8(b)(4) of the Natural Labor Rela-

tions Act, 29 U.S.C. § 158(b)(4), depending on the intent of

the pickets, even if the situs of the dispute is solely occupied by

the primary employer. As detailed below, this conclusion is at

variance with the long-standing holdings of this Court. In

addition, this conclusion significantly broadens the prohi-

bition contained in § 8(b)(4) and, derivatively, expands

federal jurisdiction under § 303 of the Labor-Management

Relations Act.

In this regard, a substantial majority of the decisions of this

Court regarding the dividing line between forbidden secon-

dary activity and protected primary activity have involved

common situs problems. See, e.g., United Steelworkers v.

NLRB, 376 U.S. 492 (1964); Local 761, International Union of

Electrical Workers v. NLRB, 366 U.S. 667 (1961). In the

common situs decisions, this Court has indicated that the loca-

tion of the picketing is not controlling but, rather, that what is

controlling is whether the duties of the employees induced

and/or coerced were connected with the normal operations of

the employer. See, e.g., United Steelworkers v. NLRB, supra

at 497; Local 761, International Union of Electrical Workers

v. NLRB, supra at 680-681.

In contrast, this Court has ruled that if the situs of the

dispute is occupied solely by the primary employer the loca-

tion of the picketing is controlling. Thus, in United

Steelworkers v. NLRB, this Court stated the following:

In this Court, the Board conceded that when the struck

premises are occupied by the primary employer alone,

the right of the union to engage in primary activity at or

in connection with the primary premises may be given

unlimited effect — “all union attempts, by picketing and

allied means, to cut off deliveries, pickups, and employ-

ment at the primary employer’s plant will be regarded as

primary and outside the purview of section 8(b)(4)(A).”

376 U.S. at 497, quoting Brief for the National Labor Rela-

tions Board, Electrical Workers Local 761 v. Labor Board,

No. 321 (October term, 1960) at 31.

Accordingly, under established precedent, and contrary to

the decision of the First Circuit Court of Appeals, the intent of

picketers at the solely occupied premises of the primary em-

ployer is not relevant, since this Court has given the right to

engage in such picketing unlimited effect by providing that

same is per se outside the purview of § 8(b)(4).

As noted supra, the allegations cited by the First Circuit

Court of Appeals in support of its conclusion that the com-

plaint states a § 303 claim expressly provide that the alleged

coercion of the third parties occurred at the situs of the

primary employers.” In addition, the complaint is devoid of

any suggestion that the premises of the primary employers

were shared with third parties. As such, the conclusion of the

First Circuit Court of Appeals that a § 303 claim was stated

and the concomitant determination that the district court had

jurisdiction to hear the state law tort claims were funda-

mentally at variance with the express limitations placed by this

Court on the prohibitions contained in § 8(b)(4) and, deriva-

tively, on the scope of federal jurisdiction under § 303.

Moreover, even assuming, arguendo, that the instant com-

plaint was construed as containing sufficient allegations to

raise a common situs problem, the conclusion of the First Cir-

cuit Court of Appeals regarding the existence of a § 303 claim

would still be inconsistent with the standards of this Court. In

this regard, this Court, as noted above, focuses, in common

situs disputes, on the nature of the duties of the third parties in

relation to the operations of the primary employer. Thus, if

the third parties are connected with the normal operations of

the primary employer, the coercive conduct directed at them

is considered to be outside the prohibition described in

§ 8(b)(4).

In § 22 of the complaint herein, which is described by the

First Circuit Court of Appeals as the conclusion for the com-

plaint’s allegations of unlawful conduct, the linen companies

expressly allege that the union conduct directed at third par-

ties was an “intentional” attempt “to interfere with the ship-

ment and/or receipt of goods by Plaintiffs.” As such, the com-

plaint expressly provides that the affected third parties were

involved in the normal operations of the primary employers,

"For example, the preface to © 20 of the complaint provides, in relevant

part, that “Defendants have indulged in numerous illegal acts of violence

and/or threats of violence... towards third parties trying to do business with

Plaintiffs, at Plaintifis’ respective places of business " See also, the con-

clusion to € 20 set out in the text of the instant petition, supra.

and, therefore, the complaint cannot be read to state a § 303

claim even under the common situs standards.

In sum, this Court has established the parameters of

unlawful conduct under § 8(b)(4) of the Natural Labor Rela-

tions Act. However, the First Circuit Court of Appeals has ig-

nored or misconstrued those standards by providing that

picketing and other activity at the situs of the primary dispute

may be violative of § 8(b)(4) depending on the intent of the

strikers even though the situs of the dispute is solely occupied

by the primary employer. By so ruling, the First Circuit

Court of Appeals has expanded not only the § 8(b)(4) prohi-

bitions but also the federal court's jurisdiction under § 303.

II], THe Unrrep States Court oF APPEALS FOR THE First Cir-

curt ERRED IN INTERPRETING 28 U.S.C. § 1441(b) as AUTHOR-

IZING THE SEVERANCE AND REMOVAL OF A FEDERAL CLAIM

Even THOUGH THE NON-REMOVABLE STATE Law CLaIMs

FrRoM WHICH THE FEDERAL CLAIM IS SEVERED ARE NoT SEPAR-

ATE AND INDEPENDENT FROM THE FEDERAL CLAIM WITHIN

THE MEANING OF 28 U.S.C. § 1441(c).

As noted supra, the individual defendants argued success-

fully before the First Circuit Court of Appeals that the district

court had erred in exercising “pendent-party” jurisdiction over

the state law claims asserted against them. See 708 F.2d at 8.

In addition, the First Circuit Court of Appeals concluded that

the state law claims against the individual defendants were

“too closely related” to the claim against the union defendant

to be considered “separate and independent” within the mean-

ing of 28 U.S.C. § 1441(c) and, as such, were not removable

under that subsection. See id. at 9. (“The question is whether

[§ 1441(c)) helps Bonanno, and the answer is that it does not.

Under the test of American Fire & Casualty v. Finn, [341 U.S.

6 (1951) ] the state claim against the individuals is not ‘separate

and independent’ from the other claims in the case; it is too

closely related to those claims to satisfy Finn’s requirements”).

See also id. at 10. Nevertheless, the First Circuit Court of Ap-

peals concluded that the claim against the union defendant

was properly removed in that § 1441 permitted the severence

and removal of a non-separate and non-independent federal

claim. In particular, the court stated that the federal claim

was removable under § 1441(b), which provides as follows:

(b) Any civil action of which the district courts have

original jurisdiction founded on a claim or right arising

under the Constitution, treaties or laws of the United

States shall be removable without regard to the citizen-

ship or residence of the parties. Any other such action

shall be removable only if none of the parties in interest

properly joined and served as defendants is a citizen of

the State in which such action is brought.

In support of its conclusion, the court noted that the corres-

ponding provision in the previous version of the removal

statute had referred to “any suit of a civil nature;” and, citing

The Pacific Railroad Removal Cases, 115 U.S. 1 (1885), and

Galveston, Harrisburg & San Antonio Railway Co. v. Hall, 70

F.2d 608 (5th Cir. 1934), the court asserted that under the

predecessor statute the “arising under” defendant was per-

mitted to sever and remove his non-separable claim. Finally,

the court concluded that the revisors of the removal statute did

not intend to alter this entitlement. See 708 F.2d at 11.

As detailed below, the court’s interpretation of § 1441(b) is

inconsistent with the principles of statutory construction

generally applicable to the removal statute; is contrary to

other federal decisions; and is premised on faulty analysis.

Moreover, as detailed finally below, the court's interpretation

results in an expansion of federal jurisdiction at the expense of

judicial economy.

First, it is well established that removal statutes are to be

construed strictly, in recognition of the “Congressional pur-

pose to restrict the jurisdiction of the federal courts on

removal.” Shamrock Oil & Gas Corporation v. Sheets, 313

U.S. 100, 108 (1941). The court herein, however, strains to

make removable an entire class of cases that clearly not only

are not removable under a strict construction of § 144] but

also are not removable under a commonsense reading of the

statute. In this regard, the drafters of § 144] established ex-

press standards for removal when otherwise removable and

non-removable claims are joined in a single state law proceed-

ing. Thus, § 144](c) provides as follows:

cause of action, which would be removable if sued upon

alone, is joined with one or more otherwise non-remov-

able claims or causes of action, the entire case may be

removed and the district court may determine al] issues

therein, or, in its discretion, may remand all matters not

otherwise within its original jurisdiction.

Since the drafters obviously were cognizant that removable

and non-removable claims can be joined in a state action, and

since the drafters of § 144] expressly provided a standard for

the rernoval of such joined actions, i.e., when the otherwise

removable and the non-removable claims are “separate and

independent,” it is unsound to infer, as the First Circuit Court

of Appeals did herein, that implicit in § 1441(b) is an addi-

tional and more liberal standard for the removal of such joined

actions.

16 ,

Moreover, the First Circuit Court of Appeals, in ruling that

Bonanno’s claim against Local 25 alone was removable pur-

suant to § 1441(b), equated the terms “claim” and “cause of

action,” as used in § 144](c), with the term “civil action,” as

employed in § 1441(b). In this regard, the court, in consider-

ing whether the district court had had jurisdiction to hear the

claims against the individual defendants, unquggtionably

viewed Bonanno’s assertions against Local 25 as a “claim”

within the meaning of § 1441(c). Thus, the court stated the

following:

In the present case, the state claim against the in-

dividuals was based upon “an interlocked series of trans-

actions,” some of which were used to infer the federal

claim. Plaintiffs’ complaint alleged injuries arising out of

a single, protracted strike, in which mass picketing and

violence affected both Bonanno and third persons. Judg-

ing from the complaint, some of the individual instances

of picketing and violence affected third parties within the

scope of the Taft-Hartley Act. The “Taft-Hartley” in-

stances comprise a portion of the “state law” instances;

and all instances are connected and intertwined. The

“claim or cause of action” against the individuals thus

fails to meet the “separate and independent” test of Finn,

see 341 U.S. at 16, 71 S.Ct. at 541, for both claims

“substantially derive from the same facts.”

708 F.2d at 10, quoting New England Concrete Pipe Corpora-

tion v. D/C Systems of New England, 658 F.2d 867 (1st Cir.

1981).

In addition, the court, in ruling that the district court had

jurisdiction to hear Bonanno’s “claims” against Local 25,

stated, in part, as follows:

We note one final, related jurisdictional matter in

respect to § 1441(b). That section allows removal of “any

civil action” of which the district courts have original

jurisdiction. ... We conclude that it is proper here for

the Local to remove Bonanno’s “arising under” and pen-

dent claims against it to federal court, even if the other

state claim defendants must be left behind.

Id. at 11 (emphasis in original).

Accordingly, it is evident that the court’s conclusion, that

§ 1441(b) authorizes the severence and removal of a federal

claim even if the non-removable state law claims from which

the federal claim is severed are not “separate and

independent,” is based on its belief that the terms “claim” and

“cause of action” in § 1441(c) are synonymous with the term

“civil action” in § 1441(b).

It is clear, however, that the plain or common meanings of

these terms are not the same. Thus, using the terms’ common

or plain meanings, it is evident that Bonanno’s complaint con-

stitutes a single “civil action” in which there are multiple

“claims.” Given that the drafters of § 1441 did not provide

special definitions for such terms as “civil action” and “claim,”

same should be afforded their ordinary meanings, especially

when to do so would further the statutory construction prin-

ciple generally applicable to § 1441.

Second, while the court below appears to be the first circuit

court of appeals to address the question of whether a federal

claim can be severed and removed to federal court from non-

separate and non-independent state law claims, at least one

federal district court has answered the question in the

negative. In this regard, in Austin v. General American Life

Insurance Co., 498 F. Supp. 844 (N.D. Ala. 1980), plaintiff,

on behalf of his son, commenced a three count action in state

court. Count I sought payment of medical costs incurred by

the son from the defendant insurer under a group insurance

program provided through plaintiff's employer. Counts II

and III named defendant Phillips as an agent of the insurer

and included estoppel and misrepresentation claims.

The defendants removed the case to federal court, asserting

that Count I arose under the Employee Retirement Income

Security Act of 1974 (ERISA), and the plaintiff challenged the

removal. For purposes of determining whether removal was

appropriate, the court presumed that Count I stated a claim

against the insurer under ERISA.® The court concluded,

however, that since the counts were not “separate and inde-

pendent,” and since Counts II and III were state law claims,

the entire case was non-removable. In this regard, the court

stated as follows:

It is also important to note that, aside from the ques-

tion of whether federal jurisdiction exists to consider

claims of breach of contract provided under an ERISA

plan, Count II and Count III being for estoppel and mis-

representations are not actions to enforce or establish

rights provided by an ERISA plan. Therefore no basis

for jurisdiction would exist as to these counts unless

claims against such an insurer are necessarily subject to

“ERISA jurisdiction.” Moreover, Count I cannot be

removed independently of the claims under Count II and

The defendants present no evidence to the effect that

General American is charged with review of denied

claims or is otherwise accountable as a fiduciary under

ERISA. As Counts II and III are not subject to federal

*In dicta, the court noted that, in its opinion, Count I did not state a claim

under ERISA. See 498 F. Supp. at 846.

court jurisdiction, and cannot be separated under Finn

from Count I, it follows that the case is due to be remand-

ed.

Id. at 846 (emphasis added).

Consistent with the Austin decision but at variance with the

opinion of the court below, the district court in Southland

Corp. v. Estridge, 456 F. Supp. 1296 (C.D. Ca. 1978), clearly

indicated that in its view “arising under” claims were non-

removable prior to the enactment of § 1441(c), if same were

joined with a claim against a non-diverse party. Thus, the

court noted the following:

When Congress replaced the separable controversy

provisions of 28 U.S.C. § 71 with § 1441(c), it removed

the requirement that separable controversies could be

removed only on the basis of diversity jurisdiction; under

Section 144l(c), “separate and independent claim[s] or

cause[s] of action” can be removed upon the basis of

federal question jurisdiction. See Hart & Wechsler, The

Federal Courts in the Federal System, 1211 (2d ed. 1973).

Thus it is no longer possible for a plaintiff to join a non-

diverse party to his federal question lawsuit against de-

fendant in state court in order to prevent removal by the

defendant; if the defendant can show that the claim

against him is “separate and independent,” he can

remove.

Id. at 1300 n.6.

Accordingly, the conclusion of the First Circuit Court of Ap-

peals is inconsistent not only with the accepted, relevant

statutory construction principle but also the decisions of at

least two federal district courts.

Third, as noted above, the conclusion of the First Circuit

Court of Appeals that the district court had jurisdiction to hear

only the claim against Local 25 is premised solely on its belief

that that claim could have been severed and heard by a federal

court under the predecessor to § 1441, 28 U.S.C. § 71, as same

was interpreted by this Court in The Pacific Railroad Removal

Cases, 115 U.S. 1 (1885), and by the Fifth Circuit in

Galveston, Harrisburg & San Antonio Railway Co. v. Hall, 70

F.2d 608 (5th Cir. 1934). The court's premises is clearly

defective.

In this regard, The Pacific Railroad Removal Cases involved

consolidated appeals, each of which raised an issue relating to

the removal of causes from state courts. The appeal cited by

the court below as support for its holding that it was permis-

sible to sever from state law claims and remove a non-separate

and non-independent federal claim involved the Union Pacific

Railway Company and a dispute arising out of the widening of

certain streets in Kansas City. In that case, the removal of the

railroad’s state law appeal under a Kansas City statute in-

volving procedure for compensating landholders in the event

of public takings was challenged based on the fact that all state

law appeals involving the same taking could be consolidated

by the state court into a single proceeding under the applicable

statute.®

* This Court described the issue as follows:

A more embarrassing question arises under the third objection raised

by the defendant in error, to wit, that the whole case relating to the

widening of the street was carried before the Circuit Court of Jackson

County by the appeal, and must also be carried to the Circuit Court of

the United States in the same condition if the application for a removal

is sustained, whereby the latter court wil! be called upon to exercise ad-

ministrative functions of a local character to which it is incompetent.

115 U.S. at 19.

The court, in response to this challenge, reviewed the pro-

cedures under the applicable state law. Based on its review,

the court noted that the railroad had filed a separate appeal;

that that appeal involved a controversy “distinct and separate”

from other appeals pending as a result of the same taking; and

that, while all the appeals might be heard in a single state law

proceeding, the state court could order a separate trial on the

railroad’s appeal.'° In light of the above, the court concluded

that the railroad’s appeal was “to all intents and purposes a

suit” within the meaning of the removal statute and, as such,

could be removed to federal court. 115 U.S. at 23.

As detailed above, it is evident that the Court's reasoning in

The Pacific Railroad Removal Cases, if applied to the instant

dispute, compels a result contrary to that established by the

court below. Thus, the court, in permitting removal in The

Pacific Railroad Removal Cases, relied on the fact that the

railroad had taken a separate appeal, that that appeal might

'° Specifically, the court noted the following:

What, then, is the relation in which the railway company, as an ap-

pellant, stands towards the city of Kansas in this litigation? Clearly, it

has two distinct issues, or grounds of controversy; first, the value of its

property taken for the street; secondly, the amount of benefit which

the widening of the street will create to its remaining property, not so

taken. It may have a third issue, and, judging from the course of the

argument, it has a third issue, still more important to it than either of

the others, to wit, the right of a city to open a street at all across depot

grounds. Now this controversy involving these three issues, is a

distinct controversy between the company and the city. It may be set-

tled in the same trial with the other appeals, and by a single jury; but

the controversy is a distinct and separate one, and is capable of being

tried distinctly and separately from the others. If the State Circuit

Court had equity powers, it might direct a separate issue for the trial of

this controversy by itself. It might try the other appeals without a jury

(the parties waiving a jury), and try this controversy by a jury.

115 U.S. at 22-23.

be heard separately by the state court and that the underlying

controversy was separate and distinct from the controversies

underlying the other appeals. In contrast, in the instant case

there was no separate suit commenced against Local 25. More-

over, since all defendants were properly joined by the linen

companies, and since the claims were intertwined, the state

court could not not have severed the claim against Local 25

from the claims against the individuals. Finally, the First Cir-

cuit Court of Appeals itself found that the claim against Local

25 was “intertwined” with those against the individual

defendants.

In sum, the Court in The Pacific Railroad Removal Cases

carefully sculptured a response to what the Court itself termed

an “embarrassing question.” Jd. at 19. As such, the Court

surely did not establish the general proposition relied on by the

court below. Indeed, the Court’s analysis in The Pacific Rail-

road Removal Cases undercuts the court’s conclusion herein.

The First Circuit Court of Appeals also cited Galveston,

Harrisburg & San Antonio Railway Co. v. Hall, 70 F.2d 608

(5th Cir. 1934), for the proposition that under the predecessor

removal statute each “cause of action” represented a separate

“suit” for removal purposes. In that case, the plaintiff had

sued the railroad, as a common carrier, for the negligent kill-

ing of a number of his cattle. The railroad brought a cross-

action against the county claiming breach of contract as a

result of the county’s maintenance of the stock pen. After the

cross-action was filed, plaintiff amended his complaint to

allege that the cattle had been shipped in interstate commerce.

Thereafter, the railroad company removed the case to federal

court, including its cross-section against the county.

On appeal, the court noted that the action and cross-action

were “distinct in parties and subject matter.” Jd. at 610. Asa

result, the court concluded as follows: “When removability

was first disclosed by amendment, although the railroad com-

pany then had a right to remove, it could be done only by

abandoning its impleading of the county in state court.” Jd.

While the above conclusion suggests that the case was improp-

erly removed, the court permitted, without analysis, the judg-

ment against the railroad to stand and simply ordered the

cross-action dismissed.

As described above, Galveston, Harrisburg ¢ San Antonio

Railway v. Hall does not support the First Circuit Court of

Appeals’ contention that a non-separate and non-independent

federal claim was severable from state law claims and

removable under the predecessor to the removal statute. In-

deed, the holding of that case is directly contrary to the court's

contention herein. Moreover, to the extent the holding in

Galveston, Harrisburg & San Antonio Railway Co. v. Hall is

at variance with the result in that case, i.e., removal of case

against railroad permitted even though railroad had not first

abandoned its cross-action against the county, the result

reflects the fact that there were two cases or “suits,” one be-

tween the plaintiff and the railroad and one between the rail-

road and the county, rather than one case containing claims

by plaintiff against both the railroad and the county. Accord-

ingly, the analysis of the First Circuit Court of Appeals is fun-

damentally flawed in that the cited decisions do not stand for

the proposition that, under the predecessor to § 1441, each

claim by plaintiff against a defendant or defendants was a

separate “suit” for removal purposes.

Fourth, there can be no dispute that the court’s holding

below expands federal jurisdiction in that it creates a new class

of cases that may be removed. Such an expansion of jurisdic-

tion is particularly troublesome, given that the expansion is

made at the expense of judicial economy. In this regard,

§ 1441(c) permits, at the discretion of the federal court, the

severance of a federal claim from its state law counterparts.

However, severance is permitted only if the claims are

separate and independent. This “separate and independent”

requirement insures that the state and federal courts will not

be, in effect, trying the same case should severance be permit-

ted. In contrast, the holding of the court herein requires that

the state and federal courts concurrently try the same case,

albeit against different named defendants. As such, the First

Circuit Court of Appeals has frustrated the goal of judicial

economy, while at the same time creating the potential for in-

consistent results.

Conclusion.

For the reasons set out in detail below, Teamsters, Chauf-

feurs, Warehousemen and Helpers Union Local No 25 respect-

fully urges that this Court grant the instant writ.

Respectfully submitted,

JAMES T. GRADY,

Counsel of Record

GABRIEL O. DUMONT, JR.,

GRADY, DUMONT & DWYER,

75 Federal Street,

P.O. Box 1598,

Boston, Massachusetts 02205.

(617) 426-9450

Dated:

Table of Contents.

Appendix A. — Opinion of United States Court of Ap-

peals, First Circuit

Appendix B. — Memorandum and order dated, June 1,

1983

Appendix C. — Memorandum and order dated, Sep-

tember 30, 1980

Motion to dismiss of the individual defendants — Wil-

liam J. McCarthy, Herbert T. Salter, Gerald J. Hal-

loran, Peter Forest, Arthur Moran, Jack Kerwin,

John O'Malley, Ernest Zimmerman and Joseph

Caico

Motion to admit evidence

’ Opinion dated June 30, 1982

Supplement to opinion of June 30, 1982 dated July 29,

1982

Appendix D. —

28 U.S.C. § 1441

29 U.S.C. § 158

29 U.S.C. § 187

3la

Appendix A.

CHARLES D. BONANNO LINEN SERVICE,

INC,, et al.,

Plaintiffs, Appellees,

Vv.

William J. McCARTHY, et al.,

Defendants, Appellants.

No, 82-1755,

United States Court of Appeals,

First Circuit.

Argued Feb. 3, 1983.

Decided May 9, 1983.

As Modified on Denial of Rehearing and Rehearing

En Banc June 1, 1983.

The United States District Court for the District of Massa-

chusetts, Robert E. Keeton, J., awarded a linen company

compensatory damages on a state law tort claim against union

and individual union members, in an action that had been re-

moved from state court. The Court of Appeals, Breyer, Cir-

cuit Judge, held that: (1) complaint presented sufficient

allegation that linen company was an industry affecting in-

terstate commerce; (2) linen company alleged facts sufficient

to present federal question; (3) there was no abuse of trial

court’s discretion in denying union’s motion for remand; (4)

federal court lacked jurisdiction to hear linen company’s state

claim against individual union members; (5) it was proper for

union to remove linen company’s claims arising under federal

law and pendent claims to federal court, even if it was neces-

sary to leave other state claim defendants behind; (6) there

was sufficient evidence that union's representative participa-

ted in threats and acts of violence as required to hold union

responsible for acts of its members; (7) there was adequate

support for award to linen company of protective services for

1976 against union; (8) linen company could recover for ex-

pense of putting armed guards on its delivery trucks; and (9)

district court properly awarded prejudgment interest for

damages which accrued after action was filed.

Affirmed in part, and reversed in part with instructions.

1, Removal of Cases — 25(1)

Allegation that secondary boycott’s ultimate target is an in-

dustry affecting interstate commerce is sufficient, for removal

purposes, given factual likelihood that in most cases what af-

fects innocent target will affect ultimate target, and given

Congress’ intent in Taft-Hartley Act to exercise its constitu-

tionally granted commerce power broadly. Labor Manage-

ment Relations Act, 1947, §§ 1 et seq., 303, as amended, 29

U.S.C.A. §§ 141 et seq., 187; National Labor Relations Act,

§ 8(b)(4), as amended, 29 U.S.C.A. § 158(b)(4).

2. Removal of Cases — 25(1)

Necessary “interstate commerce” allegations, namely that

both secondary boycott's ultimate target, plaintiff linen com-

pany, and its innocent targets were in industry affecting inter-

state commerce, were sufficiently alleged in complaint, even

though words “interstate commerce” did not themselves ap-

pear in the complaint, where state complaint alleged that par-

ties held “four meetings with the Federal Mediation and Con-

ciliation Service,” which was available by statute only “in any

industry affecting [interstate] commerce” where dispute

“threatens to ceuse a substantial interruption of commerce.”

Labor Management Relations Act, 1947, §§ 1 et seq., 203(b),

303, as amended, 29 U.S.C.A. §§ 141 et seq., 173(b), 187; Na-

tional Labor Relations Act, § 8(b)(4), as amended, 29

U.S.C.A. § 158(b) (4),

3. Federal Courts — 16

Allegations amounting to claim that union and its members

tried to “threaten, coerce or restrain” third parties, to induce

them to “cease doing business with” plaintiff linen companies

set out “substantial” Taft-Hartley claim, and therefore,

federal court had discretionary power to hear pendent state

claim linked to federal claim by “common nucleus of operative

fact.” Labor Management Relations Act, 1947, § 303, as

amended, 29 U.S.C.A. § 187; National Labor Relations Act,

§ 8(b)(4), as amended, 29 U.S.C.A. § 158(b)(4).

4. Federal Courts — 14

Exercise of discretion to hear state claim is governed by con-

siderations of judicial economy, convenience and fairness to

litigants.

5. Removal of Cases — 106

District court did not abuse its discretion in refusing to re-

mand linen companies’ action against union and its members

alleging Taft-Hartley violations, where it was local itself that

had removed action from state to federal court in the first

place and there was no indication that linen companies lacked

good faith in making their initial Taft-Hartley allegations.

Labor Management Relations Act, 1947, § 303, as amended,

29 U.S.C.A. § 187.

6. Federal Courts — 16

Removal of Cases — 102

Court lacked pendent party jurisdiction over individual

union members on state tort claims related to Taft-Hartley

claims against union, and removal statute did not provide

basis for jurisdiction which would otherwise be lacking.

Labor Management Relations Act, 1947, § 303, as amended,

29 U.S.C.A. § 187; 28 U.S.C.A. § 1441.

7. Removal of Cases — 11

It was proper for union to remove linen company’s claims

arising under federal law and pendent claims to federal court,

even if it was necessary to leave other state claim defendants

behind. 28 U.S.C.A. § 1441.

8. Labor Relations — 766

There was sufficient evidence that union's representative

participated in threats and acts of violence as required to hold

union responsible for acts of its members. Norris-LaGuardia

Act, § 6, 29 U.S.C.A. § 106.

9. Labor Relations — 766

Record showing many instances of violence before 1976 and

at least eight instances during that year provided adequate

support for award to linen company of costs for protective ser-

vices for 1976 against union.

10. Negligence — 76

Under Massachusetts law, violation of law is bar to recovery

only in instances where it is contributing cause to injury.

M.G.L.A. c. 147, § 30, subd. 8.

11, Labor Relations — 768

Assuming linen company violated Massachusetts law by

putting armed guards on its delivery trucks, employer could

recover that expense from union, since there was no relation

between the “illegality” and the expense, in that employer had

to pay for the guards, not their weapons. M.G.L.A. c. 147,

§ 30, subd. 8.

12. Interest — 56

Under Massachusetts law, court is to add interest on entire

amount of verdict. M.G.L.A. c. 231, § 6B.

13. Interest — 39(2)

Under Massachusetts law, district court properly awarded

prejudgment interest for damages which accrued after action

was filed. M.G.L.A. c. 231, § 6B.

James T. Grady, Boston, Mass., with whom Gabriel O. Du-

mont, Jr. and Grady, Dumont & Dwyer, Boston, Mass., were

on brief, for defendants, appellants.

Howard I. Wilgoren, Boston, Mass., with whom Lepie,

Coven & Wilgoren, Boston, Mass., was on brief, for Charles

D. Bonanno Linen Service, Inc.

Before BOWNES and BREYER, Circuit Judges, and WY-

ZANSKI,* Senior District Judge.

BREYER, Circuit Judge.

The district court awarded Bonanno Linen Service compen-

satory damages on a state law tort claim against Teamsters

Union Local 25 and several individual Local members. The

Local and the individual defendants appeal, raising several

jurisdictional questions and also attacking the award on the

merits. We agree with the jurisdictional argument of the in-

dividual defendants and vacate the judgment against them. As

to all other matters, we affirm the judgment of the district

court.

This case began in 1975 in the midst of a labor dispute be-

tween Bonanno, several other linen companies and the de-

fendants. The companies brought suit in state court, alleging

that the Local and some of its members had engaged in

“numerous illegal acts of violence” and “threats of violence

* Of the District of Massachusetts, sitting by designation.

toward both Plaintiffs’ property and employees, and toward

third parties trying to do business with Plaintiffs.” They

sought an injunction and damages.

A few days after the suit was filed, all of the defendants

petitioned for its removal to the Massachusetts federal district

court. In their petition, the defendants stated that the plain-

tiffs’ complaint in part alleged a violation of a federal law, the

Labor-Management Relations Act (LMRA, or Taft-Hartley

Act) § 303, 29 U.S.C. § 187, which grants relief to those

harmed by an illegal secondary boycott. See 29 U.S.C.

§ 158(b)(4).

The companies did not oppose the removal. Rather, they

asked for a federal injunction. They obtained a temporary re-

straining order prohibiting further violence. See Charles D.

Bonanno Linen Serv., Inc. v. McCarthy, 532 F.2d 189 (lst

Cir. 1976). In April 1976, all of the companies but Bonanno

voluntarily dismissed their claims. The case then lay dormant

until 1979, when Bonanno announced its intention to proceed

with its damage claim, once the National Labor Relations

Board resolved a related unfair labor practice charge. See

NLRB v. Charles D. Bonanno Linen Serv., Inc., 630 F.2d 25

(1st Cir. 1980), aff’d, 454 U.S. 404, 102 S.Ct. 720, 70 L.Ed.2d

656 (1982).

In April 1980, the Local moved to remand the case to the

state court, claiming lack of federal jurisdiction. The district

court denied the motion in September. One year later, the in-

dividual defendants made a similar motion, which was quick-

ly denied. Trial began on September 24, 1981. It focused al-

most exclusively on the state claims. In fact, the district court

found for defendants on the federal secondary boycott claim,

but it found for the plaintiffs on the state tort claims against

both the Local and three individual members. The court

ordered the defendants, who were held jointly and severally

liable, to reimburse Bonanno for its expenses in protecting its

employees, to pay the medical expenses of an injured employ-

ee, and to pay the cost of certain other repairs. The court also

awarded prejudgment interest from the date the original ac-

tion was filed.

a. We turn first to a jurisdictional problem which this court

itself raised at oral argument. We noted that this case was re-

moved on the ground that Bonanno asserted a claim arising

under federal law. See 28 U.S.C. § 1441. We also pointed to

the case law requiring that the elements of the federal claim

appear on the face of the state court complaint, without

reference to other documents, such as the removal petition or

the answer. E.g., Phillips Petroleum Co. v. Texaco, Inc., 415

U.S. 125, 127-28, 94 $.Ct. 1002, 1003-1004, 39 L.Ed.2d 209

(1974); Gully v. First National Bank, 299 U.S. 109, 113, 57

S.Ct. 96, 98, 81 L.Ed. 70 (1936); Brough v. United Steel-

workers of America, 437 F.2d 748, 749 (1st Cir. 1971). And

we asked where, on the face of the state complaint, we could

find the necessary “interstate commerce” allegations, namely

that both the secondary boycott’s ultimate target (Bonanno)

and its innocent targets were in an “industry affecting [inter-

state] commerce.” 29 U.S.C. §§ 158(b)(4), 187.

[1,2] Given the factual likelihood that in most cases what

affects the innocent target will affect the ultimate target, and

given Congress’ intent in the Taft-Hartley Act to exercise its

constitutionally-granted commerce power broadly, Groneman

v. International Bhd. of Elec. Workers, 177 F.2d 995, 997

(10th Cir. 1949); cf. NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), an allegation

that Bonanno is “in an industry affecting [interstate] com-

merce” is sufficient. We are willing, for removal purposes, to

presume this to be an adequate allegation of the rest. See Her-

bert Burman, Inc. v. Local 3, Int'l Bhd. of Elec. Workers, 214

F.Supp. 353 (§.D.N.Y. 1963). Cf. Tucci v. International

Union of Operating Engineers, 316 F. Supp. 1127 (W.D.Pa.

1970). See also Heart of Atlanta Motel v. United States, 379

U.S. 241 (1964).

We reach this result without holding, as some courts have

done, that one may look outside the state complaint to the

removal petition for matters related to parties’ “status” (such

as this type of jurisdictional “commerce” nexus). E.g., Hayes

v. National Con-Serv, Inc., 523 F. Supp. 1034, 1037 (D.Md.

1981); Ulichny v. General Electric Co., 309 F. Supp. 437, 440

(N.D.N.Y. 1970); Geo D. Roper Corp. v. Local Union No. 16,

279 F. Supp. 717 (S.D. Ohio 1968); Fay wv. American

Cystoscope Makers, Inc., 98 F. Supp. 278, 280 (S.D.N.Y.

1951); see Wright, Miller & Cooper, Federal Practice & Pro-

cedure § 3722 at 561-64, § 3734 at 736 (1976). But see La

Chemise LaCoste v. Alligator Co., 506 F.2d 339, 344-45 (3d

Cir. 1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44

L.Ed.2d 94 (1975). Nor need we take “judicial notice” of the

uncontested fact (as mentioned in the removal petition) that

interstate commerce is here involved. Cf. Lang v. American

Motors Corp., 254 F. Supp. 892 (E.D. Wis. 1966) (“judicial

notice” that American Motors is in an industry affecting com-

merce). We need only engage in a little statutory logic.

The state complaint alleges that the parties held “four

meetings with the Federal Mediation and Conciliation Ser-

vice.” This federal service is available by statute only “in any

industry affecting [interstate] commerce” where the dispute

“threatens to cause a substantial interruption of commerce.”

29 U.S.C. § 173(b). Thus, the necessary jurisdictional impact

is ascertainable from the face of the complaint (without look-

ing to the removal petition), even though the words “interstate

commerce” do not themselves appear in the complaint. See

Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S.

738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (complaint alleging

impact on out-of-state purchases, revenues, and payments suf-

ficient to establish jurisdiction). We see no reason to require

more than this technical response to this technical jurisdic-

tional matter. Cf. Sheeran v. General Electric Co., 593 F.2d

93, 96 (9th Cir.) (employee's complaint did not refer to the col-

lective bargaining agreement, but did refer to a pension con-

tract which was an integral part of that agreement), cert.

denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979).

b. The Local argues that the plaintiff’s assertion of a

federal claim was inadequate for another reason, namely that

the state complaint failed to set out the substantive elements of

a Taft-Hartley § 303 violation. The district court disagreed

with the Local, and so do we.

[3] The issue is whether the state complaint set out a “sub-

stantial” Taft-Hartley claim. If so, the federal court had

discretionary power to hear a pendent state claim linked to the

federal claim by a “common nucleus of operative fact,” United

Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130,

1138, 16 L.Ed.2d 218 (1966). The Supreme Court has made

clear that “substantial” in this context means no more than not

“so insubstantial, implausible, foreclosed by prior decisions

. . or otherwise completely devoid of merit as not to involve a

federal controversy ....” Hagans v. Lavine, 415 U.S. 528,

543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Oneida In-

dian Nation v. County of Oneida, 414 U.S. 661, 666, 94S.Ct.

772, 776, 39 L.Ed.2d 73 (1974); accord, Levering & Garrigues

Co. v. Morrin, 289 U.S. 103, 105-06, 53 S.Ct. 549, 550, 77

L.Ed. 1062 (1933). The language of the state complaint — to

which we look to determine the court’s power, Gibbs, 383

U.S. at 727, 86 S.Ct. at 1139 — meets this test.

The Taft-Hartley Act provides for a federal cause of action

against labor organizations which engage in activity prohibi-

ted by § 8(b)(4), which makes it illegal

10a

to threaten, coerce or restrain any person engaged in

commerce or in an industry affecting commerce, where

. . an object thereof is...

(B) forcing or requiring any person to cease... . doing

business with any other person . . . Provided, that

nothing contained in this clause (B) shall be construed to

make unlawful, where not otherwise unlawful, any

primary strike or primary picketing;

Provided, that nothing contained in this subsection shall

be construed to make unlawful a refusal by any person to

enter upon the premises of any employer ... if the

employees of such employer are engaged in astrike....

29 U.S.C. § 158(b)(4)(ii). In enacting this language, Congress

sought to prevent all “labor efforts to draw in neutral

employers through pressure calculated to induce them to cease

doing business with the primary employer.” National Wood-

work Mfrs. Ass’n v. NLRB, 386 U.S. 612, 624, 87 S.Ct. 1250,

1258, 18 L.Ed.2d 357 (1967); see Local 761, Int'l Union of

Elec. Workers v. NLRB, 366 U.S. 667, 673-74, 81 S.Ct. 1285,

1289-90, 6 L.Ed.2d 592 (1961). And, in interpreting the Act,

the Supreme Court has written that a union may not, for ex-

ample,

exercise coercive pressure upon [complainant's]

customers, . . . in order to cause them to withhold or

withdraw patronage from complainant through fear of

loss or damage to themselves should they deal with it.

National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. at 621-22,

87 S.Ct. at 1256 (quoting Duplex Printings Press Co. v. Deer-

ing, 254 U.S. 443, 446, 41 S.Ct. 127, 176, 65 L.Ed. 349

(1921)).

lla

The plaintiff's state complaint, in relevant part, fits within

the Act’s prohibitions. It alleges that

(f) The valve of an oil truck was cracked open while

parked at the Roxbury place of business of the Plaintiff,

Standard, thereby causing approximately eight hundred

gallons of heavy fuel oil to spill onto said Plaintiff's

premises.

(h) Various third parties doing business with Plaintiffs

have been threatened with physical violence by pickets

identified as . . . members of Local 25.

And the complaint concludes that

By reason of . . . the acts of violence and threats of

violence directed toward Plaintiffs’ property and

employees and against third parties doing business with

Plaintiffs, Defendants have wilfully and intentionally at-

tempted . . . (b) to interfere with the shipment and/or

receipt of goods by Plaintiffs. As a result of the foregoing

. certain suppliers of the Plaintiffs have refused to

deliver supplies.

These allegations amount to a claim that the defendants tried

to “threaten, coerce or restrain” third parties, to induce them

“to cease doing business with” the plaintiffs.

The Union points to the provisos in § 8(b)(4). The first

states that § 8(b)(4) does not “make unlawful, where not

otherwise unlawful, any primary strike or primary picketing.”

The second specifies that lawful picketing is not made

unlawful when third persons choose to honor the picket lines.

The mere existence of picketing, however, does not automatic-

ally render all union activity lawful. See United Steelworkers

l2a

v. NLRB, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964);

International Union of Elec. Workers v. NLRB, supra; NLRB

v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961,

95 L.Ed. 1277 (1951). Where an object of the union’s activity

is to coerce third persons, it can fall within the prohibitions of

§ 8(b)(4), depending on the precise nature of the picketing and

the intent of the pickets. See, e.g., NLRB wv. Enterprise Ass'n

of Pipefitters, Local 638, 429 U.S. 507, 510 (1977); NLRB v.

Denver Building Council, 341 U.S. 675, 689 (1951); United

Scenic Artists, Local 829 v. NLRB, 655 F.2d 1267, 1269-70

(D.C. Cir. 1981); Texas Distributors, Inc. v. Local Union No.

100, 598 F.2d 393, 400 (5th Cir. 1979); lodice v. Calabrese,

512 F.2d 383, 388 (2d Cir. 1975). Here, Bonanno has alleged

that the Union intended to coerce third persons into ceasing to

do business with it, and it has alleged damage to the property

of third persons. The determination of whether certain activi-

ty is primary or secondary can often be made only after ex-

ploration of the facts. See International Union of Elec.

Workers v. NLRB, 366 U.S. at 673-74, 81 S.Ct. at 1289-90. In-

terpreting the pleadings liberally, see Fed.R.Civ.P. 8(f), we

believe they allege conduct which could fall within the pro-

hibitions of § 8(b)(4). See, e.g., NLRB v. Servette, 377 U.S.

46, 52-54 (1964). We note that appellants themselves believed

as much when they asked for removal over seven years (and

many judicial proceedings) ago. All this is only to say that

Bonanno stated a claim, not that it could prove a violation of

the Act (indeed, it failed todoso). But, since Bonanno alleged

facts sufficient to present a federal question, the district court

had the power to hear the case.

[4] The Local arguments are, for the most part, relevant

not to the issue of judicial “power,” but to the question of

district court “discretion.” See United Mineworkers v. Gibbs,

383 U.S. at 726, 86 S.Ct. at 1139; Ortiz v. United States, 595

F.2d 65, 68-69 (lst Cir. 1979). Thus, the fact that Bonanno

13a

did not pursue the Taft-Hartley claim vigorously in federal

court — it conducted little discovery, and apparently pre-

sented no evidence at trial — weighs in favor of dismissal of

the pendent state claim. The exercise of discretion to hear the

state claim, however, is governed by the “considerations of

judicial economy, convenience, and fairness to litigants.”

Mayor of Philadelphia v. Educational Equality League, 415

U.S. 605, 627, 94 S.Ct. 1323, 1336, 39 L.Ed.2d 630 (1974);

United Mineworkers v. Gibbs, 383 U.S. at 726, 86 S.Ct. at

1139. And, there are forceful considerations of this sort that

cut the other way.

[5] For one thing, it was the Local itself that removed the

action from state to federal court in the first place. As the

Sixth Circuit remarked in a similar context,

Not only did the union not contest the jurisdiction of the

District Court, the case was removed from the state court

upon the union’s motion. Given the expenditure of

judicial time and energy on this case, and given the com-

mon nucleus of operative fact, we cannot say that the ex-

ercise of pendent jurisdiction by the District Court was an

abuse of its discretion.

Kayser-Roth Corp. v. Textile Workers Union of America, 479

F.2d 524, 526 (6th Cir.) (emphasis in original), cert. denied,

414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973); accord,

Federal Prescription Service, Inc. v. Amalgamated Meat Cut-

ters, 527 F.2d 269, 274 (8th Cir. 1975). Similarly here, when

the Union moved for a remand, the case had been pending in

federal court for five years and had already been appealed to

this court once. For another thing, there is no indication that

the plaintiffs lacked good faith in making their initial Taft-

Hartley allegations. Under these circumstances, we find no

l4a

abuse of the trial court’s discretion in refusing to remand. See

Rosado v. Wyman, 397 U.S. 397, 403-05, 90 S.Ct. 1207,

1213-14, 25 L.Ed.2d 442 (1970).

Ill

[6] We turn to a more difficult jurisdiction question raised

by the individual defendants — the “pendent parties.” Bonan-

no does not assert any federal claim against these parties.

Bonanno’s state claim against them was removed from the

state court, along with the federal and state claims against the

Local, on the theory that the state claim against the in-

dividuals was “pendent” to the federal claim against the

Local. See Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49

L.Ed.2d 276 (1976). The individuals now claim that the

federal court lacked jurisdiction to hear Bonanno’s state claim

against them. We agree.

The jurisdictional defect is not one of constitutional power.

The grant of judicial power contained in Article III, Section 2,

is related to the nature of the case, not the nature of each in-

dividual claim (“The judicial Power shall extend to all Cases,

tae t

[I]f, considered without regard to their federal or state

character, a plaintiff's claims are such that he would or-

dinarily be expected to try them all in one judicial pro-

ceeding, then, assuming substantiality of the federal

issues, there is power in federal courts to hear the whole.

United Mine Workers v. Gibbs, 383 U.S. at 725, 86 S.Ct. at

1138 (emphasis in original). The claims against the in-

dividuals here are so closely related to both federal and state

claims against the Local that we are willing to assume, con-

stitutionally speaking, that “one judicial proceeding” would

be appropriate.

l5a

Nonetheless, Article III also provides that the judicial power

“shall be vested . . . in such inferior courts as the Congress may

. . establish.” Thus, we must ask whether Congress has

vested in the federal courts the power to hear Bonanno’s claims

against the individual defendants. Aldinger v. Howard,

supra. We find it has not.

In Aldinger the Supreme Court developed a rule of statutory

construction aimed at deciding whether Congress, in a juris-

dictional statute, intended to open the federal courts to par-

ticular state law claims against particular “pending parties.”

The Court held that we should look at the pendent parties,

and ask, “Did Congress intend this type of party to be the sub-

ject of this type of federal action?” If not, it is likely that Con-

gress “expressly or by implication negated” jurisdiction to hear

closely related state law claims against that “pendent party” as

well. 427 U.S. at 18, 96 S.Ct. at 2422; see Federal Deposit

Ins. Corp. v. Otero, 598 F.2d 627, 631 (1st Cir. 1979).

The Aldinger plaintiff brought a federal civil rights action

under 42 U.S.C. § 1983 in federal court against county of-

ficials and the county. She asserted federal jurisdiction under

28 U.S.C. § 1343, a special statute giving federal district courts

“original jurisdiction of any civil action authorized by law to

be commenced . . . to redress” a § 1983 violation. She also

brought related state claims against all of the defendants. At

that time (prior to Monell v. Dept. of Social Services, 436 U.S.

658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)), the courts be-

lieved that counties were not “persons” within the meaning of

§ 1983, and so the district court dismissed the federal claim

against the county. It then dismissed the state law claim

against the county as well, on the theory that the federal court

lacked the power to make the county a “pendent party” for

purposes of hearing the state claims against it. The Supreme

Court affirmed, stating that

l6a

[p]arties such as counties, whom Congress excluded from

liability in § 1983, and therefore by reference in the grant

of jurisdiction under § 1343(3), can argue with a great

deal of force that the scope of that “civil action” over

which the district courts have been given statutory

jurisdiction should not be so broadly read as to bring

them back within that power merely because the facts

also give rise to an ordinary civil action against them

under state law. In short, as against a plaintiff's claim of

additional power over a “pendent party,” the reach of the

statute conferring jurisdiction should be construed in

light of the scope of the cause of action as to which the

federal judicial power has been extended by Congress.

427 U.S. at 17, 96 S.Ct. at 242].

Aldinger would seem to require dismissal of the state claims

against the individual pendent parties here, for the jurisdic-

tional picture is very similar. The parties have relied upon

§ 303 of the Taft-Hartley Act, 29 U.S.C. § 187, which pro-

vides that

(a) It shall be unlawful . . . for any labor organization to

engage in any activity or conduct defined as an unfair

labor practice in Section 158(b)(4) of this title.

(b) Whoever shall be injured in his business or property

by reason [of] any violation of subsection (a) of this sec-

tion may sue therefor in any district court of the United

States. . ., or in any other court having jurisdiction of the

parties....

The district court noted that the language of the jurisdictional

subsection (b), through its reference to subsection (a), applies

17a

only to suits against labor organizations, not to suits against in-

dividuals. But, it concluded that “nothing in the statute sug-

gests that Congress intended otherwise to limit a federal

district court’s power to decide closely related claims by the

same plaintiff against parties who are not labor organiza-

tions.”

The legislative history of § 303, however, reveals the con-

trary, namely a clear legislative intent to immunize in-

dividuals. Cf. Complete Auto Transit, Inc. v. Reis, 451 U.S.

401, 101 S.Ct. 1836, 68 L.Ed.2d 248 (1981). When Senator

Taft originally introduced the Taft-Hartley Amendments in

the Senate, § 303 contained language that applied to in-

dividuals as well as unions. Other Senators strongly objected,

pointing out that, as drafted, § 303 might resurrect the Dan-

bury Hatters case, where individual union members were held

liable for union activities. 93 Cong.Rec. 4839, quoted in

Complete Auto Transit, 451 U.S. at 413, 101 S.Ct. at 1843. In

response to these fears of “mass suits against employees,” 93

Cong. Rec. 4839 (remarks of Senator Morse), quoted in Com-

plete Auto Transit, 451 U.S. at 413, 101 S.Ct. at 1843, Senator

Taft deleted the “individual liability” language and sub-

stituted the current language, so that “the action will be open

only [to suits] against labor organizations,” and not against in-

dividuals. 93 Cong.Rec. 4841 (remarks of Senator Taft),

quoted in Complete Auto Transit, 451 U.S. at 414, 101 S.Ct.

at 1843-44. In finally enacting the law, Congress adopted the

new Senate language, expressly declining to accept House

language that would have made the individuals also liable.

Complete Auto Transit, 451 U.S. at 414-15, 101 S.Ct. at

1843-44.

There is thus more, not less, reason here than in Aldinger to

find that Congress “by implication” has “negated” pendent

party jurisdiction over this related state law claim. In

Aldinger the language of the jurisdictional statute (§ 1343(3))

18a

was broader than § 303(b); the “excluded” pendent claim was

less clearly outside the language of the jurisdictional statute,

cf. Monell v. Dept. of Social Services, supra, (holding that

local governments are “persons” subject to § 1983 liability);

and the legislative history less clearly showed an intent to ex-

clude. In sum, given Aldinger, § 303(b) cannot be interpreted

to allow federal court jurisdiction over claims against in-

dividuals who are parties only to a related state claim.

We are aware of no other basis for jurisdiction. The Local

has not itself sued the individuals for reimbursement, so they

are not third party defendants, and no issue of ancillary

jurisdiction arises. (And, in light of Owen Equipment &

Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57

L.Ed.2d 274 (1978), Bonanno probably could not sue the in-

dividuals directly even if they were third party defendants).

Bonanno has alleged neither diversity jurisdiction, 28 U.S.C.

§ 1332, nor “arising under” jurisdiction, 28 U.S.C. § 1331. In

any event, we assume that the Supreme Court intends us to

read § 1331 in light of the pendent party limitations inferable

from § 303(b), for otherwise Aldinger would seem mean-

ingless.

Aldinger is not quite sufficient to dispose of the matter,

however, for unlike Aldinger, this case involves removal.

Thus, we must ask whether the removal statute, 28 U.S.C.

§ 1441, provides a basis for jurisdiction which otherwise

would be lacking. The relevant portions of that statute read

as follows:

(b) Any civil action of which the district courts have

original jurisdiction founded on a claim or right arising

under the Constitution, treaties or laws of the United

States shall be removable without regard to the citizen-

ship or residence of the parties... .

19a

of action, which would be removable if sued upon alone,

is joined with one or more otherwise non-removable

claims or causes of action, the entire case may be removed

and the district court may determine all issues therein, or,

in its discretion, may remand all matters not otherwise

within its original jurisdiction.

Subsection (b) allows removal only of a case which plaintiff

might have brought in federal court directly; thus, it provides

no additional basis for jurisdiction. Subsection (c), however,

allows a federal court to take jurisdiction of “separate and in-

dependent” causes of action that it might not otherwise have

statutory authority to hear. See, e.g., American Fire &

Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702

(1951); Charles Dowd Box Co. v. Fireman’s Fund Ins. Co.,

303 F.2d 57 (1st Cir. 1962); H.A. Lott, Inc. v. Hoisting & Por-

table Engineers Local No. 450, 222 F. Supp. 993 (S.D. Tex.

1963). The question is whether that subsection helps Bonan-

no, and the answer is that it does not. Under the test of

American Fire & Casualty v. Finn, supra, the state claim

against the individuals is not “separate and independent” from

the other claims in the case; it is too closely related to those

claims to satisfy Finn’s requirements.

To understand this conclusion, we must begin with the

commentators’ suggestions that § 1441](c) as a matter of logic

ought to help Bonanno in a case like this one. Both Moore's

treatise, and that of Wright, Miller & Cooper, suggest that

when a defendant removes an “arising under” case, any state

claims involved are either sufficiently closely related to the

federal claims to be considered “pendent” (and thus remov-

able under § 1441(b)), or they are sufficiently unrelated to be

considered “separate and independent” (and thus removable

20a

under § 1441(c)). 1A J. Moore, Federal Practice § 0.163{4.5]

at 721 (2d ed. 1982); Wright, Miller & Cooper, Federal Prac-

tice and Procedure § 3724 at 649 (1976). In either event, the

federal court has the statutory power to hear them, though, of

course, in its discretion it can remand them to state court.

What sense does it make, after all, to have a tertium quid of

certain state claims — those too distant to be pendent, too

close to be “separate and independent” — that alone, in an

“arising under” case, the federal court would have no

statutory power to hear? However, the history of § 1441(c),

taken together with Aldinger, suggests that this middle

category of cases does exist, and that this case falls within that

category.

At first reading, § 1441(c) seems bizarre, at least as applied

to “arising under” cases. It says that the more unrelated a

state claim is to a federal claim, the more likely it is that

removal is appropriate. But, this anomaly arises from history

and, in paticular, from the fact that § 1441](c) was written

with diversity cases in mind. Before 1875, a plaintiff seeking

to sue both an out-of-state defendant and an in-state defend-

ant in federal court could not do so; there was no federal diver-

sity jurisdiction because of lack of complete diversity. See

Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435

(1806). If he sued them in state court, however, federal

jurisdictional law then allowed the out-of-state defendant to

remove his portion of the case to federal court, provided that

the claim against him was “separable” from the claim against

the in-state defendant. See the Separable Controversy Act of

1866, 14 Stat. 306 (1866). The theory was that the defendant

should not lose the protection of diversity jurisdiction merely

because the plaintiff chose to join him with an in-state de-

fendant. Barney v. Latham, 103 U.S. 205, 210, 26 L.Ed. 514

(1881).

Qla

In 1875, Congress passed a statute which became the former

28 U.S.C. § 71. It read

And when in any suit mentioned in this section there shall

be a controversy which is wholly between citizens of dif-

ferent States, and which can be fully determined as be-

tween them, then either one or more of the defendants

actually interested in such controversy may remove said

suit into the district court of the United States for the

proper district.

This statute applied only in diversity cases. As interpreted by

the courts this statute allowed a defendant to remove a case —

indeed the entire case with its several defendants — where

there was a “separable controversy.” Barney v. Latham,

supra. In other words, where there was a “separable contro-

versy,” the out-of-state defendant could remove, and the in-

state defendant could tag along. The courts also made other

complicated distinctions, interpreting the statute liberally to

allow removal in a wide variety of cases. See, e.g., Cohen,

Problems in the Removal of a “Separate and Independent

Claim or Cause of Action,” 46 Minn.L.Rev. 1 (1961).

As part of the 1948 Revision of the Judicial Code, Congress

replaced this statute with § 144l(c). The Revisers tried to

simplify the test for removal. See Revisions of Titles 18 and 28

of the United States Code: Hearings on H.R. 2055 Before Sub-

committee No. 1 of the House Judiciary Committee, 80th

Cong., Ist Sess. 29 (1947) (statement of J. Moore). And, they

intended to limit the range of cases that diversity defendants

could remove. They did this in part, by replacing the

“separable controversy” test with the words “separate and in-

dependent claim or cause of action.” Insofar as diversity

cases were concerned, this formula did make fewer cases re-

22a

movable. See 1A J. Moore, supra, © 0.163[4.-1]; Cohen,

supra, at 18-19. Because of the “complete diversity” require-

ment, if an out-of-state defendant (linked to an in-state

defendant) could not satisfy the “separate and independent”

test, the case could not be removed. American Fire & Casual-

ty Co. v. Finn, supra.

The 1948 Revisers, however, also omitted the diversity

language of § 1441(c)’s predecessors; the section thereby ap-

plied to “arising under” cases as well. And, as applied to those

cases, the new stricter test did not stop cases from being

removed. Since there is no equivalent in an “arising under”

case to the “complete diversity” requirement, “arising under”

actions can be removed from state court whether or not other

state claims or defendants are attached. Thus, the only effect

of § 1441(c) is sometimes to expand the scope of removal by

allowing the “separate and independent” state claim defend-

ant to tag along. There is no indication that the revisers

foresaw this result, see Cohen, supra, at 31-32, and commen-

tators have questioned its constitutionality, e.g., Lewin, The

Federal Courts’ Hospitable Back Door, 66 Harv.L.Rev. 423

(1953); Cohen supra, at 26; Ireland, Entire Case Removal

Under 1441(c), 11 Indiana L.Rev. 555, 571 (1978).

By understanding § 1441(c)’s history — its focus on the

diversity case and its goal of restricting removal — one can

understand the Supreme Court’s decision in American Fire &

Casualty Co. v. Finn, supra. Finn was a diversity case, and

the Supreme Court there interpreted the words “separate and

independent claim or cause of action” strictly, as the statute’s

framers intended, to limit removal. 341 U.S. at 12, 71 S.Ct.

at 539. Thus, the Court held that

where there is a single wrong to plaintiff, for which relief

is sought, arising from an interlocked series of transac-

tions, there is no separate and independent claim or cause

of action under § 144](c).

23a

341 U.S. at 14, 71 S.Ct. at 540. See New England Concrete

Pipe Corp. v. D/C Systems of New England, Inc., 658 F.2d

867 (1st Cir. 1981).

’ In the present case, the state claim against the individuals

was based upon “an interlocked series of transactions,” some

of which were used to infer the federal claim. Plaintiffs’ com-

plaint alleged injuries arising out of a single, protracted strike,

in which mass picketing and violence affected both Bonanno

and third persons. Judging from the complaint, some of the

individual instances of picketing and violence affected third

parties within the scope of the Taft-Hartley Act. The “Taft-

Hartley” instances comprise a portion of the “state law” in-

stances; and all instances are connected and intertwined. The

“claim or cause of action” against the individuals thus fails to

meet the “separate and independent” test of Finn, see 341 U.S.

at 16, 71 S.Ct. at 541, for both claims “substantially derive

from the same facts.” New England Concrete Pipe Corp. v.

D/C Systems of New England, 658 F.2d at 874 n.12. Cf.

McMahon Chevrolet, Inc. v. Davis, 392 F.Supp. 322, 324

(S.D.Tex. 1975).

In sum, Aldinger closes the door to these “pendent party”

claims, and § 1441(c) fails to reopen it. We have what the

commentators consider an anomalous “middle” category of

parties left behind in state court. But we see no serious harm

arising out of this interpretation of the law. To interpret the

words “separate and independent” more liberally here would

depart from Finn, suggest a different interpretation of these

same words in “arising under” cases, and thereby proliferate

standards in an area already too complex. Any anomaly aris-

ing out of the much-criticized § 1441(c) can be resolved

through legislation. The American Law Institute has sug-

gested statutory revisions, including one which would require

the district court to remand all claims not within its pendent

jurisdiction, effectively eliminating the use of § 144](c) in

24a

federal question cases of this sort. See ALI Study of the Divi-

sion of Jurisdiction Between State and Federal Courts, 29,

212-13 (1969).

Since this court lacks jurisdiction over the claims against the

individual defendants, the district court’s decision on this

point must be reversed. The proper statutory basis for

removal of the claims against the Local is § 1441(b), which,

given Aldinger, does not allow the pendent parties here to tag

along.

[7] We note one final, related jurisdictional matter in

respect to § 1441(b). That section allows removal of “any civil

action” of which the district courts have original jurisdiction.

The previous version of the statute referred to “any suit of a

civil nature,” Alabama Great So. Ry. Co. v. American Cotton

Co., 229 F. 11, 15 (5th Cir. 1916), and each cause of action

was considered a separate suit. Tillman v. Russo-Asiatic

Bank, 51 F.2d 1023 (2d Cir. 1931), cert. denied, 285 U.S. 539,

52 S.Ct. 312, 76 L.Ed. 932 (1932). One commentator has

argued that the term “civil action” means the whole state pro-

ceeding, so that if some claims or parties are not removable,

none are. Lewin, supra, at 426. However, this is inconsistent

with the well-established rule that the removal statute em-

braces the same “class of cases” as does the original jurisdiction

statute. Tennessee v. Union & Planters Bank, 152 U.S. 454,

14S.Ct. 654, 38 L.Ed. 511 (1894); see Brough v. United Steel-

workers of America, 437 F.2d 748 (1st Cir. 1971). Moreover,

before 1948, the “arising under” defendant was allowed to re-

move his “suit,” leaving other defendants behind, if necessary.

See, e.g., The Pacific Railroad Removal Cases, 115 U.S. 1,

22-23, 5 S.Ct. 1113, 1123-24, 29 L.Ed. 319 (1885); Galveston,

Harrisburg & San Antonio Ry. Co. v. Hall, 70 F.2d 608 (5th

Cir. 1934). The Reviser nowhere suggested an intent to

change this result. Rather, the Reviser’s Note indicates that

the change in terminology was meant to be cosmetic; Moore

25a

concludes that no change in substance was intended. 1A J.

Moore, supra, at § 157[4.-1]. We conclude that it is proper

here for the Local to remove Bonanno’s “arising under” and

pendent claims against it to federal court, even if the other

state claim defendants must be left behind.

The claims against the individual defendants must be

remanded to the state court from which they came. American

Fire & Casualty Co. v. Finn, 341 U.S. at 18-19, 71 S.Ct. at

542-43,

We can deal with the Local's remaining contentions more

briefly.

1. The Local attacks the district court’s decision as contrary

to Norris-LaGuardia Act § 6, which forbids holding it respon-

sible for the tortious acts of its “officers, members, or agents,

except upon clear proof of actual participation in, or actual

authorization of, such acts, or of ratification of such acts after

actual knowledge thereof.” 29 U.S.C. § 106. See United

Mine Workers v. Gibbs, 383 U.S. at 737, 86 S.Ct. at 1144;

United Bhd. of Carpenters v. United States, 330 U.S. 395, 403,

67 S.Ct. 775, 779, 91 L.Ed. 973 (1947). Here, however, the

district court could find that the “clear proof” standard was

satisfied.

[8] There is sufficient evidence that the union’s representa-

tive, Salter, participated in the threats and acts of violence.

When the plaintiffs first requested an injunction Salter prom-

ised the court he would control the pickets, and no injunction

was issued. He then failed to deliver on this promise, and the

court entered a restraining order. The district court

reasonably found that Salter’s failure was “deliberate.” He

had the power and authority to control the violence, but he

never removed any picket from the line, nor did he ask the

26a

Local to impose any fines. (Other evidence indicates that the

Local's president knew of the allegations of violence as well.)

The Local argues that Section 6 of the Norris-LaGuardia

Act requires a showing that top union officials approved the

violence. But both the Supteme Court and other lower courts

have based liability on the actions of officials comparable in

rank to Salter. United Mine Workers v. Gibbs, 383 U.S. at

738, 86 S.C.t. at 1145 (“the U.M.W. representative”); Kayser-

Roth Corp. v. Textile Workers of America, 479 F.2d 524, 527

(6th Cir.) (the “strike supervisors”), cert. denied, 414 U.S.

976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973); see Ritchie v.

United Mine Workers, 410 F.2d 827 (6th Cir. 1969) (examin-

ing circumstantial evidence of involvement by union

members). The Local adds that there is no evidence that it ap-

proved of illegal action. But, the Supreme Court has held that

the union need do no more than authorize an agent’s general

activity. For example, “(t]he grant of authority to an officer

of a union to negotiate agreements with employers . . . may

well be sufficient to make the union liable.” United Bhd. of

Carpenters v. United States, 330 U.S. at 410, 67 S.Ct. at 783.

In sum, on the facts present here the district court could rea-

sonably find “knowing tolerance” by the union, Gibbs, 383

U.S. at 739, 86 S.Ct. at 1145-46, if not actual authorization,

see Gibbs, 383 U.S. at 738, 86 S.Ct. at 1145; Kayser-Roth,

479 F.2d at 526-27, and it could, therefore, hold the Local

liable for the acts of its members.

[9] 2. The Local argues that Bonanno should not have been

allowed to recover the costs of protective services for 1976. It

claims, first, that Bonanno’s fear of violence in 1976 was

unreasonable. The record, however, shows many instances of

violence before 1976, and at least eight instances during that

year; it provides adequate support for the award.

The Local adds that any danger was Bonanno’s fault, for

Bonanno refused to ratify the bargaining agreement that all

27a

other linen companies accepted in April, 1976. Whether or

not Boannno was within its legal rights in refusing to ratify,

however, striker violence is not justified. NLRB v. Fansteel

Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627

(1939).

[10,11] Finally, the Union claims that Bonanno cannot

recover for the expense of putting armed guards on its delivery

trucks, for Massachusetts law prohibits “licensees” from “fur-

nish{ing] armed guards upon the highways for persons in-

volved in labor disputes.” Mass.Gen.Laws ch. 147, § 30(8).

In Massachusetts, however, a “violation of law is a bar to

recovery . . . only in instances where it is a contributing cause

to the injury.” Janusis v. Long, 284 Mass 403, 410, 188 N.E.

223 (1933); see Wallace v. Patey, 335 Mass. 220, 222, 139

N.E.2d 407 (1957). Assuming a “violation of law” for the sake

of argument, we will see no relation between the “illegality”

and the expense. Bonanno had to pay for the guards, not their

weapons.

3. The Union claims that the district court erred in award-

ing prejudgment interest (under Mass.Gen.Laws ch. 231,

§ 6B) for damages which accrued after the action was filed,

citing Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 182

n.21, 385 N.E.2d 1349, 1362 n.21 (1979).

[12,13] Subsequent Supreme Judicial Court cases, how-

ever, have made clear that the court is to “add interest on the

entire amount of the verdict.” Griffin v. General Motors

Corp., 380 Mass. 362, 403 N.E.2d 402, 406 (1980); Carey v.

General Motors Corp., 377 Mass. 736, 387 N.E.2d 583, 588-89

(1979). Section 6B establishes a simple, mechanical rule:

rather than calculating the appropriate sum of interest for

each part of an award, where the damages may have accrued

on any number of different dates, the clerk of court simply

adds to the court’s total award “interest thereon . . . from the

date of the commencement of the action. .. .” We think the

district court correctly applied this rule.

28a

The judgment of the district court against the defendant

Teamsters Union is affirmed; the district court's denial of the

motion of defendants Forrest, Halloran, and Salter is reversed;

and the court is instructed to vacate the judgment against

them and to remand the case to the Superior Court of Suffolk

County, Massachusetts.

29a

Appendix B.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 82-1755

CHARLES D. BONANNO LINEN SERVICE,

INC., ET AL.,

Plaintiffs, Appellees,

Vv.

WILLIAM J. McCARTHY, ET AL.,

Defendants, Appellants.

Campbell, Chief Judge, Coffin, Bownes and

Breyer, Circuit Judges, and Wyzanski,* District Judge

MEMORANDUM AND ORDER

Entered: June 1, 1983

The discussion in our opinion to which petitioner refers in

his Petition for Rehearing and Rehearing En Banc was con-

fined to the question of what need be stated in a state court

complaint in order to obtain removal to federal court. In light

of the Petition for Rehearing and Rehearing En Banc, we fear

a possible ambiguity in interpretation and we therefore mod-

ify the opinion as follows:

Page 5. Strike lines 5 through 14. Replace those lines with

the following:

* Of the District of Massachusetts, sitting by designation.

30a

affecting [interstate] commerce” is sufficient. We are

willing, for removal purposes, to presume this to be an

adequate allegation of the rest. See Herbert Burman,

Inc. v. Local 3, Int'l Bhd. of Elec. Workers, 214 F. Supp.

353 (S.D.N.Y. 1963). Cf. Tucci v. International Union

of Operating Engineers, 316 F. Supp. 1127 (W.D. Pa.

1970). See also Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964). And, in our view,

Page 10, line 7. Strike the word “primary”.

Page 10. Strike lines 12 through 14 and replace them with

the following:

to coerce third persons, it can fall within the prohibitions

of § 8(b)(4), depending on the precise nature of the

picketing and the intent of the pickets. See, e.g., NLRB

v. Enterprise Ass'n of Pipefitters, Local 635, 429 U.S.

507, 510 (1977); NLRB v. Denver Building Council, 341

U.S. 657, 689 (1951). United Scenic Artists, Local

Page 10, last line. After the words: “U.S. at 673-74.” insert

the following:

Interpreting the pleadings liberally, see Fed. R. Civ. P. 8(f),

we believe they allege conduct which could fall within the

prohibitions of § 8(b)(4). See, e.g., NLRB v. Servette, 377

U.S. 46, 52-54 (1964). We note that appellants themselves

believed as much when they asked for removal over seven

years (and many judicial proceedings) ago.

The Petition for Rehearing and Rehearing En Banc are

denied.

By the Court:

Francis P. Sigliano

Clerk.

3la

Appendix C,

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CHARLES D. BONANNO LINEN

SERVICE, INC., et al.,

Plaintiffs

CIVIL ACTION

NO. 75-3313-K

Vv.

WILLIAM J. McCARTHY, et al.,

Defendants

~— ee Oe Oe Oe ee SS

September 30, 1980

Memorandum and Order

This action, which arose out of a labor dispute beginning in

1975 between plaintiff Bonanno Linen Services (“Bonanno”)

and defendant Teamsters Union Local No. 25 (“Local 25”), is

before the court on defendants’ “Motion to Terminate Injunc-

tion and to Remand Action for Want of Jurisdiction.”

The case was originally filed in Suffolk Superior Court, on

August 7, 1975.' The case was removed to this court on de-

fendants’ petition of August 9, 1975. Judge Tauro held hear-

ings on plaintiffs’ request for injunctive relief, and on

September 8, 1975 issued a Temporary Restraining Order,

' As originally filed, the action named several other mernbers of the New

England Linen Supply Association, all of whom subsequently withdrew

from the case.

32a

based on stated findings of jurisdiction and unlawful conduct

by defendants, enjoining defendants from interfering with,

harming or threatening plaintiffs’ business, employees, prop-

erty, and third parties dealing with plaintiffs. Judge Tauro’s

order was affirmed as a temporary injunction by the Court of

Appeals for the First Circuit, 532 F.2d 191 (1st Cir. 1976). In

affirming, the Court of Appeals found “that the oral evidence

at the hearing was sufficient by itself to support a temporary

injunction,” and that a “review of the hearing transcript

demonstrates ample support for [Judge Tauro’s] findings” of

threats and violence. Jd. at 190. The only issues remaining in

the case are defendants’ liability for property damage and the

cost of protective services arising out of alleged strike-related

violence, and whether the injunction should be dissolved,

modified, or kept intact.?

Il.

Defendants’ Motion to Terminate the Injunction

Defendants urge that the court terminate the injunction,

which is still in effect, on the grounds that it has been in effect

for five years, that it is insufficiently specific as to its duration,

and generally that the circumstances upon which it was prem-

ised have ceased. Plaintiff states that the strike against Bonan-

no has not terminated. Pltf. mem. at 5.

The court finds no basis for terminating or modifying the in-

junction at this time. The existence of circumstances justify-

ing the continuation, modification, or termination of the in-

junction is an issue upon which evidence would have to be re-

*The Court of Appeals recently decided a related matter, NLAB v.

Charles D, Bonanno Linen Service, Inc., No. 79-1824 (slip op., Sept. 12,

1980). However, that case, which involved the question whether Bonanno’s

unilateral withdrawal from the multiemployer bargaining unit in the face of

an impasse constituted an unfair labor practice, has no bearing on the issues

in the instant case.

33a

ceived, and therefore it would be inappropriate to act on such

a motion at this time.

Ill.

Defendants’ Motion to Remand for Want of Jurisdiction

In their Petition For Removal, §* 5, 6, defendants referred

to the allegations in paragraphs 20(f) and 20(h) of the com-

plaint (threats of violence against third parties dealing with

plaintiff) as “appear[ing] to represent an attempt... to state a

cause of action within the meaning of 29 U.S.C. 187 of which

this court has original jurisdiction.” Defendants’ memoran-

dum in support of this petition states that “[dJefendants con-

tend that the Plaintiffs’ Complaint . . . states a claim for relief

over which the federal district courts have original jurisdiction

pursuant to 29 U.S.C. § 187... [which] proscribes the com-

mission of unlawful secondary activity as more fully defined in

29 U.S.C. § 158(b)(4) .. . .” In granting the Temporary

Restraining Order, Judge Tauro found “that the Court may

exercise jurisdiction over this case under 28 U.S.C. 1441, 29

U.S.C. 187, and under the principles of pendent jurisdiction

.... Id, 1, The Court of Appeals affirmed the injunction,

thereby necessarily implying an affirmance of the determina-

tion of federal jurisdiction.

Defendants now argue that there is no basis for federal juris-

diction over plaintiff's claims, and that the case should there-

fore be remanded to state court pursuant to 28 U.S.C.

§ 1447(c). In essence, defendants contend that plaintiffs

failed to allege a “substantial” federal claim, or that it has

become apparent that no genuine federal issue is involved,’

and that there is therefore no basis for this court to retain and

* Defendants stated that “. . . the ambiguity of paragraphs 22 and 23 of the

state court complaint might have arguably rendered jurisdiction under 29

34a

and decide plaintiffs’ state law damage claims under the doc-

trine of pendent jurisdiction.

29 U.S.C. § 187 confers jurisdiction upon the federal district

courts over actions to redress injuries resulting from conduct

defined in 29 U.S.C. § 158(b)(4) as unfair labor practices.

Among the proscribed union activities described in § 158(b)(4)

(ii) to threaten, coerce, or restrain any person engaged in

commerce or in an industry affecting commerce, where

in either case an object thereof is — . . . (B) forcing or re-

quiring any person to cease . . . dealing in the products of

any other producer, processor, or manufacturer, or to

cease doing business with any other person... . (empha-

sis added).

The conduct just described is commonly referred to as unlaw-

ful “secondary activity” or “secondary boycott” of an em-

ployer’s customers or suppliers, to be contrasted with lawful

primary strikes and primary picketing of the immediate

employer.

The court concludes that the plaintiffs have amply alleged

unlawful secondary activity by defendants within the meaning

of 29 U.S.C. § 158(b)(4). The Verified Complaint alleges that

“The valve of an oil truck [apparently owned by a third party]

was cracked open while parked at the Roxbury place of busi-

ness of the Plaintiff,” § 20(f); “ Various third parties doing bus-

U.S.C. § 187; however, subsequent discovery made it pateritly clear that this

case involves only a common law tort case for damages under state law.”

Deft. Supp. Mem., p. 2 (emphasis added). Plaintiff has apparently dropped

its claim for damages for interference with its business by defendants, and

now seek damages only for property damage and the cost of protective serv-

ices.

35a

iness with Plaintiffs have been threatened with physical

violence by pickets identified as linen supply drivers involved

in the labor dispute and members of Local 25,” § 20(h) (em-

phasis added); “As a result of the foregoing . . . certain sup-

pliers of the Plaintiffs have refused to deliver supplies.” { 22.

Indeed, it was these allegations to which defendants pointed in

1975 as the jurisdictional basis for removing the case to federal

court. It is anomalous that nearly five years later defendants

urge, in effect, that contrary to their earlier representations,

“the case was removed improvidently and without jurisdic-

tion.” 28 U.S.C. § 1447(c).

Where (1) the state and federal claims in a lawsuit “derive

from a common nucleus of operative fact,” (2) “plaintiff's

claims are such that he would ordinarily be expected to try

them all in one judicial proceeding,” and (3) the federal claim

is “substantial,” a federal district court may in its discretion

exercise pendent jurisdiction over the state law claims. United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). This doc-

trine is based on “considerations of judicial economy, conven-

ience and fairness to litigants.” Jd. at 726. The first two of

the above prerequisites for pendent jurisdiction are clearly

present in this case, since all of plaintiff's claims arose out of

the same incidents of strike-related violence. The dispute here

hinges on the “substantiality” criterion.

Notwithstanding dicta to the contrary in Gibbs,‘ subse-

quent decisions have made clear that where the federal claim

is “substantial,” district courts have the discretion to retain

jurisdiction over the remaining state law claims even after the

dismissal, abandonment or settlement of the federal claim. See

Rosado v. Wyman, 90 S.Ct. 1207, 397 U.S. 397, 403-05

(1970); State of Arizona v. Cook Paint and Varnish Corp.,

*“Certainly, if the federal claims are dismissed before trial, even though

not insubstantial in a jurisdictional sense, the state claims should be dismissed

as well.” 383 U.S. at 726.

36a

541 F.2d 226, 227 (9th Cir. 1976), cert. denied, 430 U.S. 915

(1977); Kuhn v. National Ass'n of Letter Carriers, 528 F.2d

767, 771 n.6 (8th Cir. 1976); 13 C. Wright, A. Miller & E.

Cooper, Federal Practice and Procedure § 3522, at 53-54

(1975) [herinafter cited as Wright, Miller & Cooper]. The

substantiality criterion precludes federal jurisdiction only

where the federal claim upon which jurisdiction is based is

“obviously without merit” or wholly frivolous. Cf. Hagans v.

Lavine, 415 U.S. 528, 536-37 (1974). See 13 Wright, Miller &

Cooper § 3564. Here, plaintiff's allegation of secondary ac-

tivity by defendants is plainly substantial; there is no indi-

cation that it was frivolous or made in anything other than

good faith at the time the Verified Complaint was filed. Cer-

tainly the allegation was not a device inserted by plaintiffs to

create federal jurisdiction, the complaint having been filed in

state court. Even if discovery later showed this allegation to

be unsupported, that does not prove that the allegation was

jurisdictionally insubstantial. Of course, the sufficiency of the

pleadings to confer jurisdiction may be raised at any time,

since a court is always obliged to notice its want of subject

matter jurisdiction. However, a demonstration of lack of

merit of allegations, upon full development of the evidence,

does not retroactively deprive the court of jurisdiction. See

Kayser-Roth Corp. v. Textile Workers, 479 F.2d 524 (6th

Cir.), cert. denied, 414 U.S. 976 (1973) (trial court's finding

against employer on secondary boycott claim did not vitiate

pendent jurisdiction).

The court finds that in the interests of judicial economy,

convenience, and fairness to plaintiffs, this court should retain

jurisdiction and decide plaintiff's damage claims. This case

has been pending in this court for five years, has been before

three judges and the Court of Appeals, and has received sub-

stantial attention from courts and counsel. The fact that this

case is here because defendants removed it from the state

37a

court, together with defendants’ belated attention to the

alleged jurisdictional defect, militate against remanding the

case to the state Superior Court.

ORDER

For the above reasons, it is ORDERED:

Defendants’ “Motion to Terminate Injunction and to Re-

mand Action for Want of Jurisdiction” is denied.

Robert E. Keeton

United States District Judge

38a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CHARLES D. BONANNO LINEN

SERVICE, INC., etal.,

Plaintiffs

CIVIL ACTION

NO. 75-3313-K

Vv.

WILLIAM J. McCARTHY, et al.,

Defendants

MOTION TO DISMISS OF THE INDIVIDUAL DEFEND-

ANTS — WILLIAM J. McCARTHY, HERBERT T.

SALTER, GERALD J. HALLORAN, PETER FOREST,

ARTHUR MORAN, JACK KERWIN,

JOHN O'MALLEY, ERNEST ZIMMERMAN

AND JOSEPH CAICO

Now come the individual Defendants and move to dismiss

the instant case on the grounds that this Court lacks subject

matter jurisdiction to hear the pendent state law claims, since

the individuals were not proper Defendants in the Section

303(b), 29 U.S.C. § 187(b), action.

For the Defendants,

WILLIAM J. McCARTHY, ET AL.,

By their Attorneys,

James T. Grady

Gabriel O. Dumont, Jr.

GRADY AND DUMONT

75 Federal Street

Boston, MA 02110

Dated: _._..__ Tel. (617) 426-9450

39a

CERTIFICATE OF SERVICE

I, James T. Grady, counsel for the Defendants, hereby cer-

tify that I have this day delivered in hand a copy of the fore-

going Motion To Dismiss to Howard I. Wilgoren, Esquire,

LEPIE and COVEN, 13 Tremont Street, Boston, Massachu-

setts 02108.

Dated: Sept. 23, 1981 James T. Grady

40a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CHARLES D. BONANNO LINEN

SERVICE, INC.,

VS.

WILLIAM J. McCARTHY, et al.,

CIVIL ACTION

NO. 75-3313-K

— ee eee ee

MOTION TO ADMIT EVIDENCE

Now comes Charles D. Bonanno Linen Service, Inc., plain-

tiff in the above-captioned matter and respectfully moves that

a check dated December 23, 1976 payable to Police Dept.-City

of Medford in the amount of Seventy-eight ($78.00) dollars,

which is attached hereto, be admitted into evidence.

In support of the instant motion, it is submitted that said

check was inadvertently excluded from other similar checks

when they were submitted into evidence as plaintiff's Exhibit

No. 10.

James T. Grady, Esquire, Counsel for the defendant has

stated to the undersigned that he has no objection to the grant-

ing of this motion.

Respectfully submitted,

Howard I. Wilgoren

Leipe and Coven

18 Tremont Street

Suite 618

Boston, Massachusetts 02108

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42a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CHARLES D. BONANNO LINEN

SERVICE, INC., et al.,

)

Plaintiffs )

za ) CIVIL ACTION

VILLIAM J. McCARTHY, et al., NO. 75-3313-K

Defendants )

)

June 30, 1982

Opinion

This is an action for compensatory damages filed by plain-

tiff Charles D. Bonanno Linen Services, Inc. (“Bonanno”)

against defendant Teamsters, Chauffeurs, Warehousemen

and Helpers Union Local No. 25 (“Local 25”), an affiliate of

the International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, and individual de-

fendants who are members of Local 25.' The action was tried

before the court without a jury on September 24, 25, and 28,

1981 and October 14, 21, and 30, 1981. All findings of fact

stated in parts I and II infra are from a preponderance of the

evidence. Findings of fact in parts III and IV infra are based

iThe individual named defendants are William McCarthy, Herbert

Salter, Gerald Halloran, Peter Forrest, Arthur Moran, Jack Kerwin, John

O'Malley, Ernest Zimmerman, and Joseph Caico. Defendants McCarthy

and Salter are also named in their capacities as officers of Local 25.

43a

on clear proof, Evaluative findings and conclusions of law are

stated in the remaining portions of this opinion.

This action arises from a labor dispute between Bonanno

and Local 25 that began in the spring of 1975. Bonanno is a

Massachusetts corporation with its principal place of business

in Medford, Massachusetts where it conducts a retail and com-

mercial dry-cleaning and laundry service operation. A por-

tion of that business involves the renting and distributing of

linens, uniforms, and related products. As part of this distri-

bution operation, Bonanno employed twelve truck drivers in

the spring of 1975. At that time the drivers were working

under a collective bargaining agreement negotiated between

their representative union, Local 25, and the New England

Linen Supply Association (“Association”), a multi-employer

bargaining group whose membership included Bonanno. Dur-

ing March and April of 1975, Local 25 and the Association

were unable to reach an agreement on a new contract, and in

June of 1975 Local 25 terminated the then-existing collective

bargaining agreement. The membership of Local 25 voted in

favor of a selective strike on June 18, 1975, and shortly

thereafter union leaders selected Bonanno as the target com-

pany. On June 23, 1975 the union announced its decision and

the Bonanno drivers commenced picketing. The following

day most members of the Association imposed a lock-out on

Local 25 employees. This lock-out ended on November 21,

1975, when Bonanno withdrew from the Association.? The

strike and the picketing at Bonanno, however, continued until

August, 1977.

*In a separate action brought by the National Labor Relations Board

against Bonanno, it was determined that Bonanno’s unilateral withdrawal

from the Association and Bonanno’s refusal to implement the collective bar-

44a

Between June 23, 1975 and September 8, 1975, Local 25

maintained picket lines at Bonanno during most hours of the

day and night. The pickets, sometimes numbering as many as

forty persons, frequently massed in the morning and the mid-

afternoon hours, at which times the Bonanno trucks, which

were being driven by route supervisors and replacement em-

ployees, would be leaving or returning to the plant. The pick-

ets blocked the paths of trucks, verbally abused substitute

drivers, harrassed production employees, and obstructed the

entrance to the retail store located at the front of the plant.

The mass picketing continued until September 8, 1975, at

which time this court issued a temporary injunction restricting

the number of pickets.? Although the picketing continued

each day and on many evenings after September 8, 1975, there

were rarely more than fifteen pickets present at the plant at

any one time. The number of pickets decreased further after

November 21, 1975, when the lock-out ended and members of

Local 25 (other than Bonanno drivers) returned to work.

gaining agreement executed in April, 1976 between Local 25 and the

Association constituted an unfair labor practice. See Charles D. Bonanno

Linen Service, Inc. v. NLRB, __ U.S. __, 30 U.S.L.W. 4087 (January

12, 1982).

* This action, as originally filed, included other Association companies as

plaintiffs. On September 8, 1975 Judge Tauro, to whom the case was then

assigned, issued a temporary restraining order limiting the number of pickets

permitted at the location of any one Association member to the number of

drivers who were striking or were locked out at that location. This order,

which by stipulation of the parties was treated as a temporary injunction,

was affirmed by the First Circuit on March 15, 1976. See Charles D. Bonan-

no Linen Service, Inc. v. McCarthy, 532 F.2d 189 (1st Cir. 1976).

45a

Throughout most of the strike, the picketing at Bonanno

was accompanied by acts of violence. Employees were threat-

ened with physical injury, trucks were sprayed with paint,

windshields were broken, burning cigaretts were tossed into

trucks containing inflammable linens, incendiary flares were

thrown into the yard, nails were strewn at the exit gate of the

yard, windows in the plant were smashed, the gate to the

plant was rammed with an automobile, a wire to the fire

alarm system on the roof of the plant was cut, a bullet was

fired into the plant, and a tyvuck was damaged on the street

leading from the plant when a picket driving an automobile

intentionally caused a collision.

The violence also occurred along delivery routes and at the

homes of substitute drivers. In July, 1975 Richard Smith, a

route supervisor who was substituting as a driver during the

strike, was brutally attacked and clubbed by two men with

blackjacks. During the attack, which occurred along a deliv-

ery route in Boston, Smith was told that he would be killed

unless he stopped driving for Bonanno. Subsequently, other

substitute drivers were warned that they too would suffer a

similar fate unless they stopped driving for Bonanno. On one

occasion pickets followed John Doherty onto a highway and

attempted to run his truck off the road. In another incident

pickets followed Charles Chivakos, induced him to step out of

his truck, and then drove their vehicle at him. Trucks were

regularly followed by pickets along delivery routes, a practice

that began during the summer of 1975 and intensified during

the fall and winter. On more than one occasion when trucks

were left unattended after being followed by pickets, tires

were slashed, windows were broken, or invoices were stolen.

Acts of violence were also directed at persons other than

substitute drivers. For example, security guards who were

hired to patrol the plant or to accompany drivers on delivery

routes were threatened by pickets. In September, 1975 one

46a

guard was physically attacked in front of the plant by Gerald

Halloran, the Local 25 shop steward at Bonanno, Other per-

sons who were threatened by pickets include Charles Bonan-

no, the owner of the company, David Holsberg, the plant

manager, and John McBride, an engineer at the plant.

Most of the acts of violence by pickets occurred during 1975.

After January of 1976 the violence was sporadic. There were

approximately eight incidents of violence during all of 1976,

the most serious of which occurred in the spring when a group

of pickets threw rocks at Bonanno trucks and plant windows,

Picketing at the site continued on a regular basis throughout

most of 1976 in small numbers, and as late as November,

members of Local 25 sometimes picketed at night. Although

the picketing continued until August, 1977, the only incident

of violence during the last year of the strike occurred in June

when an incendiary flare was thrown into the yard of the

plant.

During the course of the strike, Bonanno attempted to

maintain order on the picket lines and to protect its employees

and property in various ways. On the first day of the strike,

Bonanno made arrangements with Guard Dogs, Inc., a pri-

' vate security service, to bolster plant protection. Since the

Medford police department was unable to assign officers to the

picket lines until the evening of June 27, 1975, Guard Dogs,

Inc. provided all protective services for Bonanno during the

first days of the strike. Each day, John McLaren of Guard

Dogs, Inc., the supervisor of the security guards, would con-

sult with managers from Bonanno and assign guards to the

plant based on the size of the picket line and reports of

violence. During the daytime hours of the first week of the

strike, the primary duty of the guards was to maintain order

along the picket lines. The security guards would open the

picket lines to allow trucks, employees, and customers to pass

through the gate or the entrance to the store. In addition,

47a

security guards would drive to delivery sites to check on the

safety of substitute drivers and-would respond to specific re-

quests for assistance by drivers along their routes. Beginning

sometime during the first week of the strike, private guards

were also used to transport employees to work. Bonanno ar-

ranged a shuttle for the protection of the approximately eighty

production workers, most of whom were women, because

these employees were being verbally and physically harrassed

by pickets each day as they attempted to walk through the

picket lines. Using Bonanno vehicles, guards would drive to

designated locations, pick up the employees and transport

them to the plant. The guards operated this shuttle until

September, 1975.

The primary daytime activity of the « iards changed after

the attack on Richard Smith. Because of the attack and the

continued threats and incidents of truck-following by pickets,

drivers demanded more protection. Beginning on July 9,

1975, the day after the attack, Bonanno made arrangements

through McLaren to have security guards accompany drivers

along delivery routes. Typically, one guard would accom-

pany each driver, although in situations where an additional

guard was needed to protect both the driver and the truck,

McLaren would supplement the escort service by functioning

as a second guard himself. This escort service for drivers con-

tinued until March of 1976.

Beginning on June 27, 1975 and lasting until October 10,

1975, Bonanno also hired Medford police officers to control

picket lines and protect the plant property. Between June 28,

1975 and August 22, 1975 Bonanno maintained at least two

policemen on duty twenty-four hours a day. From August 25,

1975 until September 12, 1975 two police officers patrolled

picket lines on weekdays from 6:00 a.m. until 6:00 p.m. On

September 15, 1975 Bonanno decreased the patrol to one offi-

cer. Finally, beginning on October 6, 1975 and ending on

48a

October 10, 1975, one policeman was on duty at Bonanno

from 6:00 a.m. until 10:00 a.m. Thereafter, with one excep-

tion on December 12, 1975, Bonanno did not use police offi-

cers as part of its daily security arrangements at the plant. In-

stead, Bonanno maintained private security guards at the site

on a twenty-four hour basis. This continued until July, 1976,

at which time the use of guards was limited to weekends and

weeknights.

Security at Bonanno during non-work hours changed over

the course of the strike, consisting at different times of com-

binations of policemen, private guards, and dogs. In April,

1975, in anticipation of a likely strike and the possibility of

violence, Bonanno completed the construction of a chain link

fence on its property. The fence, together with the plant

building, enclosed a yard where Bonanno parked its vehicles.

Beginning in May, 1975 this enclosed area was patrolled dur-

ing the evenings and on weekends by two yard dogs supplied

by Guard Dogs, Inc. The dogs were brought to the yard by a

handler, left unattended overnight, and removed from the

yard the next morning. When the strike commenced and it

was learned that the picketing would continue during the

evenings, it was decided that the dogs should not be left in the

yard unattended. This decision was made because of Mc-

Laren’s concern for the safety of the dogs, and also because it

was recognized that the dogs would not be able to protect the

plant building from vandalism. Moreover, Bonanno was con-

cerned with the possibility of violence because of disturbances

that bad occurred during a strike in 1972 against Bonanno by

Local 25. For these reasons, McLaren assigned a security

guard to patrol the plant along with the two yard dogs. On

the second day of the strike nails were found strewn at the exit

gate of the plant, and one night shortly thereafter a wire to the

fire alarm system on the roof of the plant was cut. Because of

these incidents, and the continual presence of pickets at night,

49a

Bonanno increased its evening security. Additional guards

were assigned to the plant and the yard dogs were replaced

with attack dogs so that guards could move freely inside the

yard itself.‘ This changed on June 27, 1975 when Medford

police officers began to guard the plant during the evenings

and on weekends. From June 28, 1975 until August 22, 1975,

Bonanno ceased using both dogs and private guards at night,

except on occasions when private guards were used to supple-

ment the police personnel. After August 22, 1975, private

guards accompanied by attack dogs, or in combination with

yard dogs, once again became the usual method of providing

evening security at the plant. Each day McLaren, in consulta-

tion with Bonanno management, would determine the

number of guards to use that evening based on the size of the

picket line and on whether there were reports of incidents of

violence during the day. This method of protecting the plant

property continued until April, 1977, at which time yard dogs

without security guards were again used on weeknights. Final-

ly, in July, 1977 Bonanno completely eliminated the use of

private guards and returned to using yard dogs alone during

evenings and weekends.

Almost all of the private security services during the strike

were performed by Guard Dogs, Inc. and Gallant Security

Service, a successor company that was owned and operated by

McLaren. Occasionally, during the summer of 1975,

McLaren subcontracted for additional guards from Investi-

gators Services Bureau, Inc. and Wackenhut Corp., two inde-

pendent security guard services. These companies would bill

Bonanno directly for the additional guards provided. Many of

the private security guards who were used during the strike

‘Unlike a yard dog, which is trained to attack automatically any intruder

other than its handler, an attack dog is trained to attack only on command

from the security guard.

50a

were licensed to carry firearms. Shotguns were kept at the

Bonanno plant for security purposes and were sometimes

placed in trucks when guards accompanied drivers on delivery

routes. In addition, guards who were licensed to carry hand-

guns frequently did so when protecting the plant or escorting

drivers. At no time during the strike, however, was a firearm

discharged by a security guard, although on one occasion a

guard used mace to subdue an attacking picket.

II.

In this action plaintiff seeks compensation from defendants

for expenses incurred as a consequence of the violence that oc-

curred during the strike. Plaintiff seeks compensation for the

expense of providing police and private security guard protec-

tion at the plant (not including the cost of using guard dogs

during evenings and weekends), and compensation for the ex-

pense of providing escorts for employees and substitute driv-

ers. In addition, Bonanno seeks compensation for the cost of

repairing trucks and plant property damaged during the

strike, and for costs directly associated with the attack on

Richard Smith, including medical expenses, towing charges,

and the cost of replacing Smith’s wrist watch, which was de-

stroyed during the attack.

I find that Bonanno incurred the following expenses during

the course of the strike:

Expenses for Plant Protection

Medford Police (6-27-75 to 10-10-75; 12-12-75) $34,628.00

Guard Dogs, Inc. (8-18-75 to 4-23-76) 21,915.00

Guard Dogs, Inc. and Gallant’s Security Service

(4-24-76 to 1-2-77) 23,984.12

Gallant’s Security Service (1-3-77 to 7-10-77) 9,329.25

5la

Expenses for Escort Services for Drivers and Employees

Guard Dogs, Inc. (6-30-75 to 3-1-76) 35,632.14

Wackenhut Corp. and Investigators Services,

Inc. (July to September 1975) 6,886. 16°

Expenses for Assorted Private Security Services

Guard Dogs, Inc. (6-23-75 to 6-27-75) 2,188.00°

Expenses Relating to the Attack on Richard Smith

Cost of towing Smith’s vehicle to Bonanno

plant after the attack 31.00

Cost of replacing Smith’s watch damaged

during the attack 47.20

Medical care expenses 161.20

Expenses Relating to the Repair of Bonanno Trucks Damaged

During the Strike

Repair of 3 windshields (8-14-75 to 9-19-75) 199.90

Repair of 8 tires (8-5-75 to 9-11-75) 369.48

Repairs to front end of truck damaged during

collision on 8-7-75 1,025.23

Service call to start truck (10-27-75) 28.20

Expenses for Repair of Plant Windows

Assorted Windows (8-19-75 to 1-21-76) 113.41

Plate-glass window (2-20-76) 217.61

‘From circumstantial evidence relating to the timing of payments to

Wackenhut, and from findings discussed in part I supra, including findings

that McLaren used guards from Wackenhut to supplement his own staff and

that Wackenhut billed Bonanno directly for these services, I find that the

payments indicated in Plaintiff's Exhibit 9 are entirely for escort services

rendered by Wackenhut during the strike.

* During the first five days of the strike, guards working alone or with at-

tack dogs performed all security services at the plant. These services includ-

ed controlling the picket lines, escorting employees, and protecting the plant

at night. The invoice of June 30, 1975, unlike all other invoices from Guard

Dogs, Inc. (see Plaintiff's Exhibit 5), does not clearly distinguish between the

different types of services provided.

I find that plaintiff incurred liability for expenses in the

amounts stated above and that plaintiff paid all amounts in

full.”

Plaintiff's right to recover any or all of these expenditures as

damages against one or more defendants is discussed in the

evaluative findings and conclusions of law in parts V and VI

infra.

Ill.

I find that Gerald Halloran, the shop steward for Local 25

at Bonanno, acting individually or with other pickets, com-

mitted the following acts of violence: During the first week of

the strike he vandalized the fire alarm system at the plant; on

August 7, 1975 he knowingly assisted another picket in causing

a collision with a Bonanno truck; on September 2, 1975

together with Peter Forrest, he participated in an incident at

Simmons College in which a delivery truck was stoned; on the

evening of September 20, 1975 he attacked Paul Simpson, a

private security guard on duty at the plant; in September,

1975 together with Peter Forrest, he threatened John McBride

with physical injury and attempted to lock McBride in a trailer

at the plant; in January, 1976 he threw a lighted cigarette into

a Bonanno truck containing inflammable linens; one after-

noon during the spring of 1976, together with Peter Forrest,

* Although Plaintiff's Exhibit 10 does not contain checks issued in payment

for two invoices totaling $6690.00 from the Medford Police Department, I

find circumstantially from the evidence submitted that plaintiff did pay these

invoices. Accordingly, without reaching the merits of the dispute as to

whether such checks were in fact submitted originally as part of Plaintiff's

Exhibit 10, I deny plaintiff's Motion to Substitute Evidence. I also find that

all invoices for private security guards, for which plaintiff did not submit

corresponding checks, were paid by Bonanno.

53a

Herbert Salter, and several other pickets, he participated in a

rock-throwing incident at the plant; during the strike he fre-

quently followed Bonanno trucks along delivery routes and

participated in the threatening incidents involving Chivakos

and Doherty (see part I supra at pp. 3-4); and on different oc-

casions beginning as early as June 23, 1975 he personally

threatened McLaren, Chivakos, Robert Orcione, Henry Tra-

bucco, William Mungarten, and Charles Bonanno.

I find that Peter Forrest, a shop steward for Local 25 at

another Association member company, acting individually or

with other pickets, committed the following acts of violence in

addition to those as to which it is stated immediately above

that he participated: On one occasion he sprayed paint on a

Bonanno vehicle; in September, 1975 he pushed a security

guard who was passing through the picket line on a motor-

cycle; and on different occasions beginning as early as July 9,

1975 he personally threatened McLaren, Thomas Wetherbee,

Richard Smith and David Holsberg.

I find that through January 2, 1977, Gerald Halloran and

Peter Forrest by their acts and threats of violence, directly

contributed to creating and prolonging Bonanno’s need for

plant protection and escort services. I also find that Gerald

Halloran’s actions during the incident on August 7, 1975 in-

volving the collision with a Bonanno truck directly con-

tributed to causing damage to the truck and the need for

repair expenditures. Except for this specific incident of

violence, however, I am unable to find that either Halloran or

Forrest was personally involved in causing any of the other

damage to property for which Bonanno incurred repair

expenses, as identified as part II supra at p. 9. Similarly, I am

unable to find that either defendant was personally involved

in the attack on Richard Smith.

I am unable to find that defendants Arthur Moran, Jack

Kerwin, John O’Malley, Ernest Zimmerman, Joseph Caico, or

William McCarthy, acting individually or with other mem-

54a

bers of Local 25, committed any acts of violence against

Bonanno or its employees. *®

From circumstantial evidence, however, I find that all acts

of violence against Bonanno that were committed by unidenti-

fied persons during the strike, including the attack on Richard

Smith, ««~, in fact, committed by, or at the direction of,

mernbers uf Local 25.

IV.

Herbert Salter, the field representative for Local 25, had

primary responsibility during the strike for organizing and

supervising the picketing at Bonanno. Salter visited the site

once a day on most days and often mingled with pickets near

*Pursuant to Fed. R. Civ. P. 65(a)(2), plaintiff offered in evidence testi-

mony and affidavits presented during the hearings of August 12 and Septem-

ber 8, 1975 on the motion for a temporary restraining order. See Trial Tran-

script of October 30, 1981 at 6-69 to 6-78. At trial the court received the

proffer but allowed counsel an opportunity to object by written submission

“to any specific portions of that evidence.” Jd. at 6-78. In light of the post-

trial submissions by counsel, I have excluded those portions of the proffer

that contain statements or arguments of counsel. Also, for reasons expl

at trial, I have received those portions of the proffer that relate to incidents of

violence not involving Bonanno property or employees as bearing solely on

the reasonableness of Bonanno’s actions in attempting to protect its own

property and employees. Other than those limited objections, which were

raised either at trial or in post-trial submissions, defendants have identified

no reason for excluding the otherwise relevant evidence offered in affidavit

form or by live testimony at the hearings on the motion for a temporary

restraining order. However, because most of the evidence in the proffer

property, I have specifically rejected as insufficient proof of such acts of

violence the affidavit testimony of Robert Orcione in light of his oral tes-

timnony at trial.

55a

the gate to the plant. Salter was among the pickets on occa-

sions when individuals were threatened (including the first

day of the strike), when nails were strewn at the gate, and

when trucks were followed, including the occasion on August

7, 1975 when a picket caused a collision with a Bonanno truck.

Knowing that pickets sometimes engaged in acts of violence at

delivery sites or along delivery routes, Salter nonetheless en-

couraged pickets to engage in ambulatory picketing during the

strike. Also, in the spring of 1976, Salter personally partici-

pated in a rock-throwing incident at the plant. That day

Charles Bonanno, who saw Salter with Halloran, Forrest, and

other pickets strolling around the perimeter of the property at

the tithe of the incident, confronted Salter about the violence,

to which Salter replied, “Rocks are nothing compared to what

you are gonna get.”

I find that throughout the strike Salter knew about the

recurring incidents of violence and threats of violence by

members of Local 25, that Salter had the authority and the

power to stop the violence, and that Salter intentionally failed

to act. At no time did Salter remove a picket from the picket

line or deprive a picket of strike benefits for having engaged in

acts of violence. Rather, with knowledge that acts of violence

were occurring, Salter allowed pickets to issue threats in his

presence, endorsed the use of ambulatory picketing, and per-

sonally participated in at least one overt act of violence. Ac-

cordingly, I find that Salter, acting in his official capacity on

behalf of Local 25, ratified or authorized all acts of violence by

members of Local 25 during the strike.* I am unable to find

*In finding ratification and authorization on the part of Herbert Salter |

do not rely on the proffered hearsay testimony of Thomas Wetherbee, which

was excluded at trial. See Trial Transcript of September 24, 1961 at 151-57.

This testimony concerned statements by Eddie Patelli { Battelli}, a member of

Local 25 who is not named as a defendant in this attion. See id. at 154. In-

itially, the court excluded the evidence as against both the individual de-

56a

that Salter individually participated in any of the specific acts

of violence for which Bonanno incurred repair expenses, as

identified in part II supra at 9, or that Salter was personally in-

volved in the attack on Richard Smith. I find, however, that

between June 23, 1975 and January 2, 1977 Salter, both in-

dividually and as an official on behalf of Local 25, personally

contributed to creating and prolonging Bonanno’s need for

plant protection and escort services.

mrs

Defendants contend that under state law there exists no

claim upon which relief may be granted in this action, that if

such a claim does exist plaintiff had failed to identify the claim

adequately, and that in any event, this court lacks jurisdiction

to adjudicate the claim.

Plaintiff commenced this action on August 7, 1975 in Suf-

folk Superior Court. The complaint, which was filed on that

fendants and Local 25. After a brief colloquy with counsel concerning the

admissibility of the evidence under Fed. R. Evid. 801(d)(2)(d) as against

defendants Local 25 and Herbert Salter (in his official capacity), the court

adhered to its ruling to exclude the evidence, but added the following caveat:

I invite you both to be prepared to present cases to me if there are any

on this subject and if after checking it further plaintiff's counsel wishes

to move for reconsideration of the ruling I will hear you.

Trial Transcript of September 24, 1981 at 157. At no time during the trial,

which did not conclude until October 30, 1981, did plaintiff move for recon-

sideration. Long after the close of evidence, however, in its Brief on Behalf

of Plaintiff {Bonanno} at 20, plaintiff now moves to reconsider the ruling. In

light of plaintiff's unexcused delay in moving for reconsideration, and light of

the unfairness that would result from having precluded defendants from pre-

senting rebuttal evidence on this matter, I deny plaintiffs motion to recon-

sider. Moreover, because of the likelihood of unfair prejudice to defendants,

who may have relied on the court's evidentiary ruling concerning

Whetherbee's oral testimony, I have specifically not relied on the similar

testimony of Whetherbee by affidavit that was offered in evidence from the

hearings on the motion for a temporary restraining order. See note § supra.

57a

date, requests compensatory and injunctive relief, but does not

identify by name or statute the precise legal claims upon

which relief may be granted. On August 11, 1975 defendant

removed to federal court on the theory that plaintiff was alleg-

ing an illegal secondary boycott as defined by 29 U.S.C.

§ 158(b)(4). In issuing a temporary restraining order on

September 8, 1975, this court acknowledged its jurisdiction

under 29 U.S.C. § 187 and also recognized the existence of

pendent jurisdiction to adjudicate state law claims relating to

defendants’ unlawful use of violence. See Temporary Re-

straining Order of September 8, 1975 at §1. Some time after

preliminary relief was granted, but before this action came on

for trial, it became clear that a claim under 29 U.S.C.

§§ 158(b)(4) and 187 could not be proved. Nonetheless, for

reasons discussed in the court’s Memorandum and Order of

September 30, 1980, this court retained jurisdiction to ad-

judicate the pendent state law claims.

The initial question to consider is whether plaintiff has

stated a valid pendent state law claim against these defend-

ants.

In their post-trial brief defendants argue, for the first time,

that they have been prejudiced by plaintiff's failure to identify

with greater specificity the state law claims upon which relief

may be granted, and, therefore, that judgment should enter

for defendants. Defendants’ argument is without merit. The

pleadings, the hearings on preliminary relief, and the subse-

quent proceedings in this court leading to trial adequately

placed defendants on notice of the substance of plaintiff's

claims. Plaintiff has alleged that during an Otherwise lawful

strike individual members of Local 25 committed tortious acts

of violence against the pfoperty and employees of Bonanno,

and that these tortious aets were authorized or ratified by

58a

Local 25. In substance, plaintiff has pleaded intentional and

unprivileged infliction of economic harm by defendants dur-

ing an otherwise privileged course of conduct. That plaintiff

failed to identify these claims with greater specificity as com-

mon law claims for assault, battery, trespass, and intentional

interference with advantageous business relations is unimpor-

tant. The substance of the claims is adequately identified in

the pleadings, and defendants have had a full opportunity to

use discovery procedures to clarify any ambiguities that may

exist in the pleadings. In these circumstances, there is no

reason to require plaintiff to use forgnal labels in identifying its

state law claims.

Of course, this court will not create claims or theories of

liability on behalf of plaintiff. Plaintiff has neither pleaded

nor argued that the individual defendants or defendant Local

25 participated in a conspiracy to harm Bonanno. As to the

individual defendants, therefore, tort liability will be limited

to the consequences of specific acts of violence committed by

that individual acting either alone or with others as a joint

tortfeasor. Similarly, defendant Local 25 will be held liable

for the consequence of acts of violence committed by members

of Local 25 only to the extent that such acts were authorized or

ratified by Local 25.

I conclude that the pleadings, construed in this manner,

state a valid cause of action for damages under Massachusetts

common law against the individual defendants and defendant

Local 25.'° The courts of Massachusetts have long recognized

the right of a business to recover damages for the harm caused

by an unlawful strike. See, e.g., Quinton’s Market v. Patter-

'°The Supreme Judicial Court of Massachusetts recently determined that ¢

union may be named as a defendant in tort action for damages. See Diluzio

v. United Electrical, Radio, and Machine Workers of America, Local 274,

386 Mass. 364 (1982).

59a

son, 303 Mass. 315, 21 N.E.2d 546 (1939). It follows that

Massachusetts courts would also recognize an employer’s right

to recover damages for the harm caused by unlawful or violent

conduct during a lawful strike. Permitting such an action for

damages is consistent with general principles of tort law, and

with the framework for state and federal regulation of labor

disputes. It also accords with similar approaches taken in

other jurisdictions. See, e.g., Kayser-Roth Corp. v. Textile

Worker Union of America, 479 F.2d 524 (6th Cir.) (applying

Tennessee law), cert. denied, 414 U.S. 976 (1973).

Plaintiff failed to prove that Local 25 engaged in an illegal

secondary boycott as defined by 29 U.S.C. § 158(b) (4). Plain-

tiff presented evidence of primary location picketing that af-

fected third-party neutrals, and evidence of ambulatory

picketing at the work-sites of third-party neutrals. The

evidence, however, does not establish that Local 25 engaged in

such activities for purposes prohibited by 29 U.S.C.

§ 158(b) (4).

(1) Pendent-claim Jurisdiction

Defendant Local 25 contends that since plaintiff failed to

establish its federal claim under 29 U.S.C. §§ 187 and

158(b) (4), this court lacks jurisdiction to decide the pendent _

state law claims described in part V-A supra.

First, I conclude that this court has the power to exercise

jurisdiction over these pendent state law claims. The state

and federal claims “derive from a common nucleus of

operative fact,” and “plaintiff's claims are such that [it] would

ordinarily be expected to try them in one judicial proceeding.”

United Mine Workers v. Gibbs, 383 U.S. 715, 735 (1966).

Furthermore, the evidence presented at trial, although insuffi-

cient to establish a claim under 29 U.S.C. §§ 187 and

158(b) (4), confirmed the correctness of the court's previous

~ a

60a

determination that the federal claim was “substantial” when

defendants removed the action to federal court.'' See

Memorandum and Order of September 8, 1975 at 4-5. It

follows, therefore, that this court has power to exercise

jurisdiction in this action, a conclusion that is implicit in the

First Circuit's affirmance of Judge Tauro’s temporary injunc-

tion. '*

In addition, for the same reasons that this court denied

defendant's motion to remand in September, 1980, I conclude

that, as a matter of discretion, it is appropriate to exercise that

jurisdictional power and to decide the pendent state law

claims raised in this action. See id. at 6.'°

(2) Pendent-party Jurisdiction.

The individual defendants contend that even if this court

does have jurisdiction to decide the pendent state law claims

against Local 25, this court has no jurisdiction to adjudicate

the state law claims against individual members of Local 25,

since plaintiff's federal claim does not apply to these defend-

ants. Defendants rely on Owen Equipment & Erection Co. v.

''For the purpose of determining this court's power to exercise jurisdic-

tion, “substantiality” must be determined as of the time of removal. How-

ever, even if I were to evaluate the substantiality of the claim as of a later

time — either at the commencement of the trial or at the close of evidence —

I would still conclude, on the evidence presented in this case, that plaintiff's

federal claim was neither frivolous nor obviously without merit.

'* See note 3 supra.

'? As previously noted, defendants removed this action to federal court.

Because I have concluded that it is appropriate in the exercise of discretion to

decide the pendent state law claims in this action, I need not consider

whether defendants should be barred under a theory of estoppel from raising

at this late date an issue that, though often referred to as “jurisdictional,” is

one involving a discretionary determination in circumstances in which

power to exercise jurisdiction is established.

6la

Kroger, 437 U.S. 365 (1978) and Federal Deposit Insurance

Corp. v. Otero, 598 F.2d 627 (lst Cir. 1979) as support for

their argument that pendent-party jurisdiction may not be

asserted in the circumstances of this case.

Relying originally on Aldinger v. Howard, 427 U.S. 1

(1976), defendants raised this same jurisdictional claim in a

motion to dismiss, filed with the court on September 23, 1981,

the day before trial commenced. On the morning of trial,

following arguments by counsel, this court denied defendants’

motion to dismiss. See Trial Transcript of September 24, 1981

at 3-12. For the same reasons offered then, I conclude now

that it is appropriate to exercise pendent-party jurisdiction in

this case. First, applying the guidelines of United Mine

Workers v. Gibbs, 383 U.S. at 735, I conclude that this court

has the power under Article III of the Constitution to decide

the claims against these individual defendants. See Otero, 598

F.2d at 631 (“As with Aldinger, Kroger instructs us to answer

the preliminary question of potential Article III jurisdiction by

applying the standard enunciated in [Gibbs}”). Second, I con-

clude that there is no express or implied Congressional intent

in the jurisdictional granting statute to “limit the sweep of

potential Article III jurisdiction,” Otero, 598 F.2d at 631. The

jurisdictional granting statute, 29 U.S.C. § 187(b), is broadly

worded to permit any plaintiff to bring an action in federal

district court if that plaintiff has been injured in business or

property by the conduct of a labor organization, and if the in-

jurious conduct is an unfair labor practice under 29 U.S.C.

§ 158(b)(4). Nothing in the statute suggests that Congress in-

terided otherwise to limit a federal district court’s power to

decide closely related claims by the same plaintiff against par-

ties who are not labor organizations.’ Finally, upon

29 U.S.C. § 187 provides:

(a) It shall be unlawful, for the purpose of this section only, in an in-

dustry or activity affecting commerce, for any labor organization to

62a

weighing numerous factors bearing on judicial economy, con-

venience, and fairness, I conclude that it is appropriate in the

circumstances of this case to exercise jurisdiction. These fac-

tors, which were identified in full at trial (see Trial Transcript

of September 24, 1981 at 10-12), weigh strongly in favor of ex-

ercising jurisdiction to decide the state law claims brought

against these individual defendants.‘ Contrary to defend-

ants’ contention, I find nothing in either Kroger or Otero that

requires a different result on the facts of this case.

VI.

I find that all of the expenses incurred by Bonanno between

June 23, 1975 and January 2, 1977, part II supra, were

reasonable. I find that the expenditures for plant protection

and escort services were incurred to minimize property

damage and personal injury to employees, that Bonanno

(through its agents, Charles Bonanno, Kevin Finnerty, and

Joseph Finnerty) had a reasonable belief that the expenditures

between June 23, 1975 and January 2, 1977 were necessary to

prevent acts of violence by members of Local 25, and that but

for these expenditures Bonanno would have suffered substan-

engage in any activity or conduct defined as an unfair labor practice in

section 158(b)(4) of this title.

(b) Whoever shall be injured in his business or property by reason

[of] any violation of subsection (a) of this section may sue therefor in

avv district court of the United States subject to the limitations and

provisions of section 185 of this title, without respect to the amount in

controversy, or in any other court having jurisdiction of the parties,

and shall recover the damages by him sustained and the cost of the suit.

'S As with the pendent-claim issue by defendant union, I need not decide

whether the individual defendants, who together with Local 25 petitioned

for removal to federal court, should be barred under a theory of estoppel

from raising the pendent-party issue. See note 13 supra.

63a

tial losses from other acts of violence by members of Local 25.

Because I have found no acts or threats of violence after

January 2, 1977, however, I am unable to find that the expen-

ditures for plant security after January 2, 1977 were reason-

ably incurred to avoid damage from threatened violence. The

last occasion when pickets were seen at the Bonanno plant site

at night was in November, 1976. Threats of violence also last

occurred in November, 1976. Plaintiff reasonably continued

to incur expenses for special plant protection through the

Christmas and New Year’s holiday periods immediately

following November, 1976, but I cannot find that expenses for

special plant protection after January 2, 1977 were reasonably

incurred to protect against threats of violence by any of the de-

fendants in this case.

I find that between June 27, 1975 and August 22, 1975, dur-

ing which time Bonnano used Medford Police officers to guard

the plant on weeknights and weekends, Bonanno benefited

from the elimination of guard dog services in the amount of

$1200.00 (eight weeks @ $150.00 per week). Expenses for the

use of guard dogs on weeknights and weekends after August

23, 1975 are not recoverable in this action since Bonanno wold

have incurred these expenditures even if defendants had not

engaged in acts of violence.

Based on the findings of fact stated in parts I-III supra, I

conclude that Gerald Halloran is liable to Bonanno in the

amount of $124,908.65, which amount represents all

economic harm to Bonanno (less amounts saved) that was

caused by Halloran’s individual conduct. I conclude that

Halloran’s violent conduct, which commenced on June 23,

1975, was a legal cause of all expenses incurred by Bonanno in

providing plant protection and escort services through January

64a

2, 1977. In addition to the pre-1977 security services,'* Hallo-

ran is liable for repair expenditures that resulted directly from

his own conduct. Halloran’s liability is calculated as follows:

Plant Protection

Medford Police $34,268.00

Guard Dogs, Inc., and Gallant’s Security

(8-18-75 to 1-2-77) 45,899.12

Less Benefit from Elimination of Yard Dogs

(6-27-75 to 8-22-75) (1,200.00)

Escort Services

Guard Dogs, Inc. 35,632.14

Wackenhut Corp. and Investigators Services,

Inc. 6,886.16

Assorted Private Security Services

Guard Dogs, Inc. (6-23-75 to 6-27-75) 2,038.00!"

Repair Expenses

Truck Collision Repairs 1,025.23

TOTAL $124,908.65

'®Since Bonanno’s expenditures for plant security after January 2, 1977

were not reasonably incurred to avoid harm from threatened violence,

Halloran’s conduct is not a legal cause of this economic harm.

'’ The invoice of June 30, 1975 from Guard Dogs, Inc. does not distinguish

clearly between the various security services provided during the first week of

the strike. See note 6 supra. The invoice indicates that $1,375.50 is charged

for “Escort hrs. @ $5.25,” and that $812.50 is charged for “K-9 hrs. @

$6.50.” I have reduced the total recoverable amount by $150.00, which is

the amount that Bonanno would have paid for yard dog services even if the

violence had not occurred during the strike. Accordingly, there is no need to

determine the precise meaning of the categories of services represented by

charges on the June 30, 1975 invoice. All expenditures for security services in

excess of $150.00 during the period of June 23, 1975 and June 27, 1975 were

caused by the acts of violence or threats of violence by defendants.

65a

Based on the findings of fact stated in parts I-III supra, I

conclude that Peter Forrest is liable to Bonanno in the amount

of $116,525.42. This amount reflects all reasonable expen-

ditures for plant security and escort services (less amounts

saved) incurred by Bonanno between July 9, 1975 and January

2, 1977,'* calculated as follows:

Plant Protection

Medford Police

(7-9-75 to 10-10-75; 12-12-75) $29,008.00

Guard Dogs, Inc., and Gallant’s Security

Service (8-18-75 to 1-2-77) 45,899.12

Less Benefit from Elimination of Yard Dogs

(7-9-75 to 8-22-75) (900.00)

Escort Services

Guard Dogs, Inc. 35,632.14

Wackenhut Corp. and Investigators Services,

Inc. 6,886.16

TOTAL $116,525.42

Since I am unable to find that defendants Moran, Kerwin,

O’Malley, Zimmerman, Caico, or McCarthy, committed any

acts of violence against Bonanno or its employees, judgment

will enter for these individual defendants.

I have determined from clear proof that Herbert Salter, in

his official capacity as field representative for Local 25,

authorized or ratified all acts of violence against Bonanno by

members of Local 25. In addition, I have determined that all

* I conclude that Forrest's violent conduct during this period of time was a

lega) cause of the expenditures for security services by Bonanno. Forrest may

not be held liable for expenses incurred before July 9, 1975, which is the

earliest date involving acts of violence by Forrest, or for expenditures incur-

red by Bonanno after January 2, 1977.

66a

acts of violence against Bonanno, including those acts by

unidentified individuals, were committed by, or at the direc-

tion of, members of Local 25. Based on these findings and

other findings concerning the reasonableness of Bonanno’s ex-

penditures, I conclude that Local 25 (by the conduct of its

authorized agent) is liable to Bonanno in the amount of

$126,076.65. This amount reflects all reasonable expenditures

(less amounts saved) incurred by Bonanno during the strike

that were caused by authorized or ratified acts of violence by

members of Local 25. The amount is calculated as follows:

Plant Protection

Medford Police $34,628.00

Guard Dogs, Inc., and Gallant’s Security

Service (8-18-75 to 1-2-77) 45,899.12

Less Benefit from Elimination of Yard Dogs

(6-27-75 to 8-22-75) (1,200.00)

Escort Services

Guard Dogs, Inc. 35,632.14

Wackenhut Corp. and Investigators Services,

Inc. 6,886.16

Assorted Private Security Services

Guard Dogs, Inc. (6-23-75 to 6-27-75) 2,038.00 '*

Attack on Richard Smith

All Expenses 239.40

Repair of Bonanno Trucks

All Expenses 1,622.81

Repair of Plant Windows

All Expenses 331.02

TOTAL $126,076.65

" See note 17 supra.

67a

I also conclude that Herbert Salter is individually liable in

the amount of $123,883.42. This amount reflects all reason-

able expenditures for plant security and escort services (less

amounts saved) incurred by

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