APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Aldisert, Sloviter, and Rosenn, Circuit Judges. Aldisert, Circuit Judge, dissenting.
This is an appeal from the dismissal of Davis' complaint against his former employer Ohio Barge Line, Inc. [OBL] and the National Maritime Union of America, AFL-CIO, Port of Pittsburgh [Union]. The central issue on appeal is whether the district court erred in dismissing two counts of his complaint for want of subject matter jurisdiction under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. We will vacate the dismissal and remand to the district court.
When a case comes to us from a jurisdictional dismissal granted on defendants' motion pursuant to Fed. R. Civ. P. 12(b) (1), the factual allegations of the complaint must be taken as true for purposes of our review. Garrett v. Bamford, 538 F.2d 63, 65 (3d Cir.), cert. denied, 429 U.S. 977, 50 L. Ed. 2d 585, 97 S. Ct. 485 (1976). Appellee Ohio Barge Line, Inc. is a Pennsylvania corporation which engages in the interstate shipment of bulk freight products. OBL first hired Davis as a deckhand on October 16, 1978 but discharged him shortly thereafter on October 23, 1978, allegedly because he was handicapped. Plaintiff claims to be a controlled epileptic and a slow learner. Davis did not resort to the union grievance procedure under the applicable collective bargaining agreement for the discharge but did lodge a complaint with the Department of Labor alleging discrimination because of a handicap in violation of section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 793. Additionally, he filed a civil suit in state court. OBL entered into a settlement agreement with Davis dated and signed December 22, 1980 but effective July 23, 1980, under which OBL agreed to reinstate Davis on July 23, 1980 and to calculate his seniority as if he had been employed as a deckhand by OBL throughout the period from October 16, 1978 to July 23, 1980. The settlement agreement specified that Davis' retroactive seniority rights were to include, but not be limited to, layoffs, promotions, rehiring, wage rates, bonus, and retirement, pension and other fringe benefits. Davis agreed to withdraw his complaints and surrender his backpay claims. The settlement agreement provided that Davis should have all of the rights and duties prescribed by the applicable collective bargaining agreement between OBL and the Union.
On January 2, 1981, OBL again discharged Davis. This time Davis protested to the Union, which processed a grievance pursuant to the collective bargaining agreement. That agreement stated that employees could be "laid off" during the first 90 days work, but has no such express provision in the section dealing with employee "discharge." For purposes of the arbitration hearing on Davis' grievance, counsel for OBL and the Union stipulated that deckhands with less than 90 days active service aboard a ship are considered probationary employees who can be discharged without cause. The parties further stipulated that the arbitrator should initially decide whether or not Davis, who at the time of discharge had 83 active onboard work days, was a probationary employee. The arbitrator analyzed both the collective bargaining agreement and the settlement agreement, concluded that Davis was a probationary employee who could be discharged without cause, and entered an award denying the grievance and sustaining the discharge.
Davis then filed this action against both OBL and the Union in the United States District Court for the Western District of Pennsylvania, seeking damages, costs, attorney's fees, reinstatement, injunctive relief and/or rehearing. His complaint contained three separate counts. Count One asserted a cause of action against OBL for wrongful discharge and a corresponding claim against the Union for breach of its duty of fair representation. Count Two sought to vacate or modify the arbitrator's award on the ground that the arbitrator exceeded his powers under the collective bargaining agreement, and failed to conform to its procedural requirements. Jurisdiction as to both counts was invoked pursuant to section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. Finally, Count Three purported to state a claim under section 503 of the Rehabilitation Act of 1973, alleging handicap discrimination. Both OBL and the Union moved to dismiss all three counts for failure to state a claim and for lack of subject matter jurisdiction.
The district court granted the defendants' motions to dismiss Counts One and Two for lack of subject matter jurisdiction on the ground that they were based on alleged violations of the settlement agreement, which did not constitute a "contrac[t] between an employer and a labor organization" within the meaning of section 301. The court also dismissed Count Three on the basis that section 503 of the Rehabilitation Act did not confer a private right of action. Davis v. Ohio Barge Line, Inc., 535 F. Supp. 1324 (W.D. Pa. 1982).
As the Supreme Court has stated, it is well established that in passing on a motion to dismiss on the ground, inter alia, of lack of jurisdiction over the subject matter, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Indeed, pursuant to our obligation to read the complaint liberally in determining whether the facts set forth justify taking jurisdiction on any ground, we have in the past overlooked a complaint's reliance on jurisdictional statutes which are inapposite and instead independently ascertained whether there was any basis on which subject matter jurisdiction could be asserted. See, e.g., Bachowski v. Brennan, 502 F.2d 79, 82-83 & n.2 (3d Cir. 1974), rev'd on other grounds sub nom. Dunlop v. Bachowski, 421 U.S. 560, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975); Wymard v. McCloskey & Co., 342 F.2d 495, 497-98 (3d Cir.) (en banc), cert. denied, 382 U.S. 823, 15 L. Ed. 2d 68, 86 S. Ct. 52 (1965); Beeler v. United States, 338 F.2d 687, 689 (3d Cir. 1964); see also Vukonich v. Civil Service ...