Helmsley-Spear, Inc. v. Fishman

900 N.E.2d 934, 11 N.Y.3d 470

Opinions

OPINION OF THE COURT

Pigott, J.

The issue on this appeal is whether plaintiffs’ private nuisance cause of action is preempted by the National Labor Relations Act (NLRA). We hold that it is not.

I.

Plaintiff Helmsley-Spear, Inc., managing agent of the Empire State Building (ESB),

Footnotes

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* retained Copstat Security, LLC, a private security firm, to provide security services for the ESB. In 2005, defendants Michael Fishman, as President of SEIU Local 32B-32J, AFL-CIO, SEIU Local 32B-32J, AFL-CIO, and John Does 1-7 (collectively, the Union) began a concerted effort to organize Copstat employees. As part of that endeavor, on 18 separate days between November 2005 and February 2006, members of the Union assembled outside certain entrances of the ESB, distributing leaflets while one or more of the members drummed on a plastic container, metal pot or tin can.

Thereafter, nonparty Copstat filed three unfair labor practice charges against the Union with the National Labor Relations Board (NLRB), alleging that the Union’s picketing or threatened picketing violated 29 USC § 158 (b) (7) (C), and that the Union’s activity was designed to coerce Helmsley-Spear into discontinuing business with Copstat in violation of 29 USC § 158 (b) (4) (i), (ii) (B) and coerce Copstat employees into selecting the Union as their collective bargaining representative in violation of 29 USC §158 (b) (1) (A).

The NLRB dismissed the charges, finding that the Union “was engaged in protected handbilling or leafleting” and that “the use of the drum on the days in question . . . was [not] sufficient to transform the leafleting activity into unlawful conduct.” The NLRB’s Office of Appeals affirmed that decision on the same grounds.

Meanwhile, plaintiffs Helmsley-Spear and owners of nearby businesses commenced the instant private nuisance action against the Union seeking an order enjoining it from engaging in drumming or other noise-making activities. Following a hearing, Supreme Court granted plaintiffs’ request for a preliminary injunction, concluding that they met their burden of establishing that the drumming “caused stress and business interruption” which, if left unabated, would cause more stress and harm to the listeners (12 Misc 3d 1151[A], 2006 NY Slip Op 50855[U], *8). The court limited the injunction specifically to the drumming and did not prohibit the leafleting.

The Appellate Division reversed and dismissed the complaint, holding that plaintiffs’ “action to restrain conduct of loud drumming to publicize [the] [U]nion’s handbilling activities is preempted by federal labor law,” and stating that the NLRB had previously concluded that the Union had the right to engage in the drumming (Helmsley-Spear, Inc. v Fishman, 39 AD3d 361 [1st Dept 2007] [citations omitted]). Because it found plaintiffs’ claim to be preempted by federal law, the Appellate Division did not address the Union’s additional argument, that Labor Law § 807 prohibited the trial court from enjoining the drumming.

This Court granted leave (10 NY3d 703 [2008]) and we now reverse.

II.

It has been a hallmark of state-federal jurisprudence in the area of labor law that each jurisdiction recognize the respective rights and remedies of the other. The federal courts, in finding “presumptive preemption” with respect to certain union activities, have been careful to avoid interfering with a state’s right to keep order within its borders. The states, similarly, have been careful to respect the federal government’s right to protect unions, their workers and appropriate organizing activities.

In this regard, two federal statutes, NLRA §§ 7 and 8 (codified at 29 USC §§ 157, 158), “regulate ‘concerted activities’ and ‘unfair labor practices,’ respectively, seeking to protect the former and stamp out the latter” (Building Trades Employers’ Educ. Assn. v McGowan, 311 F3d 501, 508 [2d Cir 2002]). Because the NLRA does not include an express preemption provision (see Building & Constr. Trades Council v Associated Builders & Contractors of Mass./R.I., Inc., 507 US 218, 224 [1993]), the United States Supreme Court in San Diego Building Trades Council v Garmon (359 US 236 [1959]) addressed Congress’s silence, by holding that “state regulations and causes of action are presumptively preempted if they concern conduct that is actually or arguably either prohibited or protected by the Act” (Belknap, Inc. v Hale, 463 US 491, 498 [1983], citing Garmon, 359 US at 245).

Where conduct falls within the scope of this so-called “Garmon preemption,” state regulations or causes of action may still be maintained “if the behavior to be regulated is behavior that is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility” (Belknap, 463 US at 498, citing Garmon, 359 US at 243-244; Sears, Roebuck & Co. v Carpenters, 436 US 180, 200 [1978]; Farmer v Carpenters, 430 US 290, 295 [1977]). In such cases, “the state’s interest in controlling or remedying the effects of the conduct is balanced against both the interference with the [NLRB’s] ability to adjudicate controversies committed to it by the Act, and the risk that the state will sanction conduct that the Act protects” (Belknap, 463 US at 498-499, citing Sears, Roebuck & Co., 436 US at 205 [citations omitted]).

Here, even if one were to assume that the drumming constituted arguably “protected” conduct under the NLRA, as the Union argues and the Appellate Division implied, it does not necessarily follow that our state courts are foreclosed from adjudicating plaintiffs’ claim. This point was made clear in Sears, Roebuck & Co., where the United States Supreme Court held that a state trespass claim lodged by an employer against picketers—challenging the location of the picketing as opposed to the picketing itself—was not preempted by the NLRA even though trespass was arguably protected under the Act (436 US at 198-204).

The Sears Court recognized that, even in cases where an employer has no right to invoke the Board’s jurisdiction, preemption may be appropriate where “the exercise of state jurisdiction . . . might create a significant risk of misinterpretation of federal law and the consequent prohibition of protected conduct” (id. at 203). Nonetheless, the Court concluded that the state’s evaluation of whether the union’s trespass constituted protected activity under the Act did “not create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board’s decision, would find protected” because, although “there are unquestionably examples of trespassory union activity” where such conduct may or may not be protected, “experience under the Act teaches that such situations are rare and that a trespass is far more likely to be unprotected than protected” (id. at 205). That reasoning applies here.

The controversy in this case—whether the drumming constituted a private nuisance—is distinctly different from the matter presented by Copstat to the NLRB, which involved allegations that the Union engaged in impermissible picketing and coercive conduct. Moreover, there is no risk that the trial court’s adjudication of the nuisance action will result in a “significant risk of misinterpretation” of federal labor law or in the “consequent prohibition of protected conduct” because the trial court restricted its imposition of the preliminary injunction to the drumming and emphasized that the order did not affect the Union’s leafleting activity. Just as trespass, as found in Sears, “is far more likely to be unprotected than protected” under the Act, so, too, is the tort of private nuisance.

The dissent’s implication that Sears is inapplicable because the Board found that the drumming is “actually protected” and constitutes “federally protected conduct” (see dissenting op at 480) misconstrues the Board’s factual determination, which was centered on alleged “prohibited conduct,” namely, allegations of the unfair labor practices of impermissible picketing and coercive activity. The Board did not proclaim the drumming to be “protected conduct” under the NLRA but, rather, premised its holding exclusively on the leafleting itself, finding that “the use of the drum . . . was [not] sufficient to transform the leafleting activity into unlawful conduct.” That holding did not, ipso facto, render the drumming “protected conduct,” as the dissent claims, but merely determined that the drumming did not transform otherwise protected conduct into prohibited conduct.

Moreover, plaintiffs’ nuisance claim “touche[s] interests so deeply rooted in local feeling and responsibility” that it could not be inferred that Congress intended to deprive this State of the power to act (Garmon, 359 US at 244). The tort of private nuisance, much like the tort of trespass, has historically been governed by state law. It cannot be said that Congress, by enacting the NLRA, intended to preempt states from protecting their citizens from obnoxious conduct. Indeed, the United States Supreme Court has on numerous prior occasions found Garmon preemption inapplicable to other state common-law claims that touched upon a state’s “local interests” (see Belknap, 463 US 491 [1983], supra [state law claims for misrepresentation and breach of contract by strike replacements not preempted]; Sears, Roebuck & Co., 436 US 180 [1978], supra [state trespass claim allowed because the action concerned the location of the picketing and not the picketing itself]; Farmer, 430 US 290 [1977], supra [state intentional infliction of emotional distress claim not preempted, even though the conduct arguably involved unfair labor practices]; Linn v Plant Guard Workers, 383 US 53 [1966] [state defamation claims brought in the course of a labor dispute]; see also Automobile Workers v Russell, 356 US 634 [1958], reh denied 357 US 944 [1958] [pre-Garmon decision finding torts of threatened violence like false arrest, false imprisonment and malicious prosecution not preempted by the Act]).

Although the principal aim of Garmon preemption—to ensure the conformity of the national labor policy—is a sound one, the United States Supreme Court has been careful not to eliminate “state-court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected” (Sears, Roebuck & Co., 436 US at 188) and has found that Garmon preemption should not be applied inflexibly in circumstances where “ ‘the State has a substantial interest in regulation of the conduct . . . and the State’s interest is one that does not threaten undue interference with the federal regulatory scheme’ ” (id. at 188, quoting Farmer, 430 US at 302).

Balancing the state interest in adjudicating private nuisance claims against the interference with the NLRB’s ability to determine matters committed to it by the NLRA and the risk that state courts will prohibit conduct otherwise protected by the Act, we conclude that Congress did not intend to preempt the jurisdiction of state courts to adjudicate the tortious conduct alleged here.

III.

The Union’s alternative argument, that the nuisance claim is preempted by the doctrine pronounced by the United States Supreme Court in Machinists v Wisconsin Employment Relations Comm’n (427 US 132 [1976]), which “applies to conduct the NLRA left unregulated” (Healthcare Assn. of N.Y. State, Inc. v Pataki, 471 F3d 87, 107 [2d Cir 2006]), is similarly unavailing.

The so-called Machinists preemption “proscribes state regulation and state-law causes of action concerning [unregulated] conduct. . . that was to remain a part of the self-help remedies left to the combatants in labor disputes” (Belknap, 463 US at 499, citing Machinists, 427 US at 140, 147-148). Preemption under Machinists “protects employers’ and unions’ use of ‘economic weapons’ that Congress aimed for them to have freely available” (Building Trades Employers’ Educ. Assn., 311 F3d at 508, citing Machinists, 427 US at 150-151). Thus, although there is no specific statutory provision that “expressly protects these economic weapons, they are integral parts of the legislative scheme arid cannot be subject to regulation by the states or the courts or even the Board” (Building Trades Employers’ Educ. Assn., 311 F3d at 509).

The drumming in this instance does not constitute an “economic weapon” or “self-help” remedy akin to, for example, the employee walkout in Machinists or a lockout by an employer. Loud drumming is not an “integral part[ ] of the legislative scheme” of the NLRA.

The Appellate Division order should be reversed, with costs, and the matter remitted to that Court for consideration of issues raised but not determined on appeal to that court.

By court order dated January 26, 2007, Empire State Building Company L.L.C. was substituted for Helmsley-Spear as plaintiff.