PDF Bang the Drum Slowly-New Yorks Highest Court Rules that ...

[Pages:2]Management Alert

Bang The Drum Slowly: New York's Highest Court Rules That Companies Can Sue Unions In State Court For Nuisance

On November 24, 2008, in Helmsley-Spear, Inc. v. Fishman, et al., 2008 Slip Op. 09246, the New York Court of Appeals, the State's highest court, ruled that a company could bring a nuisance claim against a union and its officers and that such a claim was not preempted by the National Labor Relations Act (NLRA). In Helmsley-Spear v. Fishman, the Court of Appeals held that Helmsley-Spear could bring a private nuisance lawsuit against SEIU Local 32B-J (Local 32B-J), the large janitors union in New York, for loud drumming on containers outside the Empire State Building. The court held that the conduct in question "touches interests deeply rooted in local feeling and responsibility," one of the specified exceptions to federal labor law preemption under United States Supreme Court precedent (known as "Garmon preemption" after the Supreme Court case of that name).

Plaintiff Helmsley-Spear manages the Empire State Building. Helmsley-Spear hired Copstat Security LLC ("Copstat") to provide security for the building. In late 2005, Local 32B-J conducted a campaign to organize the security guards employed by Copstat at the building. On 18 days between November 2005 and February 2006, Local 32B-J members and officials conducted leafleting outside some entrances to the building and made noise by drumming on plastic containers, pots and cans. Copstat filed unfair labor practice charges against Local 32B-J at the National Labor Relations Board (NLRB) alleging, inter alia, that Local 32B-J was engaging in picketing and attempting to coerce Helmsley-Spear to stop doing business with Copstat. The NLRB dismissed the charges, but did not specifically find that the drumming was protected by the NLRA. The NLRB held that "the use of the drum . . . was [not] sufficient to transform the leafleting activity into unlawful conduct," but did not specifically find that drumming was protected activity under the NLRA.

However, Helmsley-Spear and some other businesses in the vicinity of the Empire State Building filed an action in state court alleging the tort of nuisance and sought an injunction against Local 32B-J from drumming and conducting "other noise making activities." The Supreme Court, New York County, enjoined Local 32B-J from drumming, holding that the drumming "caused stress and business interruption." The Appellate Division First Department reversed the Supreme Court's decision and dismissed the complaint holding that the nuisance action was preempted by the NLRA.

The Court of Appeals in turn reversed the Appellate Division and found that the issue of drumming and noise was "distinctly different from the matter presented by Copstat to the NLRB." The court held that a private nuisance claim is governed by state law and was of a type that "touches interests so deeply rooted in local feeling and responsibility" that Congress did not

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December 2008

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intend to deprive the states of the power to regulate it. The court held that the NLRA did not preclude a state from regulating drumming and noise making, in contrast to leafleting. Because of the clear distinction, the court held that there was "no risk that the trial court's adjudication of the nuisance action will result in a significant risk of misrepresentation of federal labor law" or the "consequent prohibition of protected conduct" because the trial court restricted the injunction to drumming and specifically excluded leafleting. The Court of Appeals remanded the case back to the Appellate Division to consider issues raised but not determined on the appeal to that court. Two Judges dissented; the decision was 4-2. The importance of this decision to employers conducting business in the state of New York is that they have the right to take affirmative action and sue a union and its officers in state court if the union's conduct in demonstrating outside its facility goes beyond its rights protected by the NLRA (such as peaceful picketing or leafleting) and instead violates state Tort laws such as nuisance or trespass. It may encourage employers and companies that are subjected to labor disputes to examine the union's activities not only to determine if they are protected under the NLRA, but also to determine if they violate state laws. One note of caution: The National Labor Relations Board and the courts have held that a lawsuit against a union may constitute an unfair labor practice if the lawsuit lacks a reasonable basis and is brought with a retaliatory motive. See Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983). For more information, please contact the Seyfarth attorney with whom you work, or any Labor & Employment attorney on our website (LaborandEmployment).



Attorney Advertising. This Management Alert is a periodical publication of Seyfarth Shaw LLP and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.) ? 2008 Seyfarth Shaw LLP. All rights reserved.

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