(dissenting).
A mistaken assumption underlies this •court’s reasoning in support of its conclusion that the present suit was not removable from the state court. That assumption is stated in the first sentence of the majority opinion and repeated thereafter. In my view, it has led the ■court into error.
The majority opinion begins by characterizing this action as “a suit based solely on a state-created right, to enjoin the defendant union’s violation, in the course of a labor dispute, of the ‘no-strike’ provision of its collective bargaining agreement * * My fundamental disagreement is with the characterization of this as “a suit, based solely on a state-created right”. I think that Local 174, Teamsters, etc. v. Lucas Flour Co., 1962, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, makes federal labor law which, by force of section 301(a) of the Labor Management Relations Act, has superseded local law, the sole basis and exclusive determinant of rights such as are asserted here between labor and management under a collective bargaining contract in an industry affecting commerce. While Charles Dowd Box Co., Inc. v. Courtney, 1962, 368 U.S. 502, 82 S.Ct. 819, 7 L.Ed.2d 483, held that a state court may entertain such a suit as this, that case implied and Local 174, Teamsters, etc. v. Lucas Flour Co., supra, thereafter squarely held that the action in whatever forum contested, arises out of and is controlled by federal labor law. The majority opinion here misconstrues the Dowd case as sanctioning an application of state law. But Dowd does no more than approve litigation in a state forum where federal law must be applied.
The federal labor law which governs such cases as this is emerging and achieving fromulation from ease to case. In Sinclair Refining Co. v. Atkinson, 1962, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed. 2d 440, the Supreme Court considered whether federal labor law permits the enjoining of a strike called in violation of a collective bargaining agreement containing a no-strike clause. The Court decided that section 301 of the Labor Management Relations Act and section 4 of the Norris-La Guardia Act, considered together, require the conclusion that federal labor law does not permit such an injunction.
The present case is indistinguishable from the Sinclair Refining case, except for the fact that one was filed in a federal district court and the other in a state court. But Local 174, Teamsters, etc. v. Lucas Flour Co., supra, teaches that in this area federal labor law is controlling in either forum. And in the Dowd opinion, 368 U.S. at 506, 82 S.Ct. at 522, the Court quoted with approval the language of Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972, that “state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy”, but “[a]ny state lav/ applied * * * will be absorbed as federal law * * When this conception is applied to the present problem, we find that any state law authorizing the enforcement of a no-strike clause by injunction is incompatible with and, therefore, cannot be absorbed in federal labor law. For the Sinclair Refining case has decided that the Norris-La Guardia Act restriction upon the enjoining of peaceful strikes is a definitive part of the federal labor policy which section 301 requires courts to apply.
The foregoing analysis can be avoided only by arguing that a state “remedy” by way of injunction is sufficiently distinct *858from and consistent with the federal contract “right” which it would redress so that controlling federal policy would not be offended by state injunctive relief. But the argument that federal labor policy under section 301 would be well served by and, therefore, should sanction the enjoining of violations of no-strike clauses, was fully and clearly stated in the dissenting opinion in Sinclair Refining Co. v. Atkinson, 370 U.S. at 215, 82 S.Ct. 1328. This argument did not persuade the majority of the Court. I do not see how controlling federal labor policy could have been less offended if the Sinclair Refining injunction had been sought in a state court rather than a federal court. I conclude, therefore, that neither a state court nor a federal court may grant injunctive relief in such a case as this. See Aaron, Strikes in Breach of Collective Agreements, Some Unanswered Questions, 1963, 63 Colum.L. Rev. 1027.
The foregoing conclusion is relevant to the principal issue presented by this appeal, whether this suit was removable from the state court to the federal district court. As a practical matter, if my analysis is correct, removability does not deprive the plaintiff of injunctive relief to which it would otherwise have been entitled, for federal labor law precludes such relief in any forum. Yet, it is this supposed deprivation which the majority characterize as an “injustice” and seek to avoid.
More technically, the right to remove, or the necessity for remand, depends upon whether this case is founded on a federal “claim or right” and whether the action is one “of which the district courts have original jurisdiction”. 28 U.S.C. § 1441(b). This is a federal claim and cannot be anything else because Congress, by enacting section 301, caused federal labor law to supersede state law as the exclusive legal basis for the enforcement of collective bargaining agreements in industries affecting commerce. Local 174, Teamsters, etc. v. Lucas Flour Co., supra; Textile Workers Union of America v. Lincoln Mills, supra. Whether a district court would have had “original jurisdiction” of this action depends upon the sense in which the elusive concept of “jurisdiction” applies to the interdiction of injunctive relief which results from the mandate of the Norris-La Guardia Act. On this question, the authorities are shai'ply divided and the Supreme Court has not yet spoken. I am persuaded that the preclusion of injunctive relief or “equity jurisdiction”, by force of the Norris-La Guardia Act, is not an ouster of such “original jurisdiction” of the district court over the parties and the subject matter as the removal statute contemplates and, in this kind of case, section 301 creates. The classic exposition of this position by Professor Chafee is so familiar, clear and fully reasoned that anything more than a citation of his analysis would be supererogation. Chafee, Some Problems of Equity, 1950, ch. 8 and 9. Accord, S. E. Overton Co. v. International Brotherhood, W.D.Mich. 1953, 115 F.Supp. 764; Pocahontas Term. Corp. v. Portland Bldg. & Construction Trade Council, D.Me.1950, 93 F.Supp. 217. The authorities which express a contrary view, and some which, properly understood, do not, are cited and discussed by the majority, but to me they are not persuasive.
Summarizing, I think the question of removability affects no substantive issue here because a state trial court, no less than a federal district court, would be bound to apply federal labor law and deny injunctive relief as was done in the Sinclair Refining case. However, the technical question of removability is in issue and must be decided. In my view, this action asserts a federal claim originally cognizable in a federal district court and, therefore, was removable and properly removed under section 1441(b) of Title 29.
For these reasons, I would affirm the judgment of the district court.