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August 22, 1977


The opinion of the court was delivered by: NEAHER


 The issue in this case is whether the National Labor Relations Act ("NLRA"), as amended in 1974, preempts State authority to act in regard to labor relations in the hospital and nursing home field and thus requires this court to enjoin the further enforcement of State orders which have prohibited and restrained organized employees of nursing homes in Nassau and Suffolk Counties from exercising their right to strike.


 The facts which have given rise to this controversy between the National Labor Relations Board ("NLRB") and the State of New York are not in dispute. In collective bargaining agreements effective January 1, 1975 between Local 1115, Joint Board, Nursing Home and Hospital Employees Division ("Local 1115" or "union") and twenty proprietary nursing homes in Nassau and Suffolk Counties, the employers agreed, inter alia, to increase wages and benefits on January 1, 1976. On December 15, 1975 the employers notified Local 1115 that, because the State of New York had refused to increase its Medicaid reimbursement rate over the 1975 level, they would be unable to pay the increases due January 1, 1976. Within the next three weeks Local 1115 filed unfair labor practice charges with the NLRB and announced its intent to strike beginning January 21, 1976.

 In response to the threat of a strike the State Commissioner of Health issued orders on January 19 and 21, 1976 prohibiting Local 1115 and its members from engaging in strikes, picketing or any other form of interference with the operations of the nursing homes. *fn1" The Commissioner also requested that the State Attorney General apply for injunctive relief.

 On January 21 the Attorney General, pursuant to Public Health Law § 12(5), filed a complaint against Local 1115 in the Supreme Court, Suffolk County. *fn2" On the same day the State court granted the State's request for a temporary order restraining strike activity pending a hearing on a preliminary injunction. On February 5, 1976 the State court granted a preliminary injunction against any strike action, as it found that "[not] to grant this relief would cause tremendous suffering to the thousands of residents of the nursing homes and would disrupt the entire system." The court denied a preliminary injunction against picketing.

 On February 20, 1976 Local 1115 removed the action to this court. It argued that the State was seeking to enjoin activities which are exclusively regulated by the NLRA. Upon the State's motion, this court remanded the action on April 23, 1976 on the ground that the complaint stated a claim solely under State law. The court concluded:

"Whether the Union's preemption contention is correct should be decided as a matter of defense in the State courts in the first instance, with ultimate recourse to the Supreme Court. State courts are obliged under the Supremacy Clause to follow federal law where applicable and there is no reason to believe that they are unwilling or incapable of so doing." State of New York v. Local 1115, 412 F. Supp. 720, 724 (E.D.N.Y. 1976).

 On remand the union appealed the granting of the preliminary injunction. On March 14, 1977 the Appellate Division, Second Department, in a 3-2 decision, rejected the union's preemption argument and affirmed the preliminary injunction.

 Meanwhile the NLRB began to assert its authority over the dispute. On May 3, 1976, pursuant to charges filed by Local 1115 on December 30, 1975, the Regional Director issued a consolidated amended complaint against the nursing home employers. Following a hearing on June 22-23, 1976, an administrative law judge found the employers guilty of unfair labor practices and ordered them to cease and desist. This order, issued on November 18, 1976, was adopted by the NLRB on January 28, 1977.

 In addition, the NLRB instituted the present action on September 8, 1976 to enjoin the State from restraining the strike activity of Local 1115. *fn3" Also sought is a declaratory judgment that labor relations in the nursing home field are within the exclusive jurisdiction of the NLRB and that State authority is preempted by the NLRA. The matter is now before the court on the Board's motion to preliminarily enjoin the State and its officials from prosecuting the State court action against Local 1115, enforcing the preliminary injunction issued in that action, or in any way attempting to regulate conduct which is within the Board's exclusive jurisdiction.


 The State first seeks to avoid the preemption issue by arguing that this action should not be entertained because it is a collateral attack on the court's remand order in State of New York v. Local 1115, supra. Review of an order of remand is prohibited on appeal or otherwise. 28 U.S.C. § 1447(d).

 The State's contention, while tempting, cannot be sustained. The Board in this action does not seek to question the propriety of the remand order. In the prior action the Board was not a party *fn4" and the court had no opportunity to consider the question of the Board's exclusive jurisdiction over labor relations in the nursing home field. Consequently, the maintenance of this action in federal court does not circumvent the proscriptions of § 1447(d). ...

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