The opinion of the court was delivered by: ROBERT L. CARTER
This suit arises out of picketing by the defendant unions at the offices of plaintiff R.M. Perlman, d/b/a Rebecca Moses Collection ("RMC"), a garment industry concern, and at various other locations where RMC was doing business directly or through its contractors. The objective of this picketing, conducted between September 15, 1990 and March 28, 1991, was to compel RMC to enter into a jobber's agreement, commonly referred to as a "Hazantown Agreement," with the unions.
RMC alleges that some violence accompanied the picketing, and that it has suffered substantial losses as a result of the picketing and the violence.
RMC filed a now amended complaint against the New York Coat, Suit, Dresses, Rainwear & Allied Workers' Union, Local 89-22-1 ("Local 89-22-1"), the International Ladies Garment Workers' Union (the "International"), and two individuals in their representative capacities as officers of the unions. In the first count of the amended complaint RMC alleges that certain of the provisions in the Hazantown agreement the local union was pressing on RMC violate section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e). In the succeeding six counts the amended complaint sets forth claims against all the defendants based on state law causes of action, specifically prima facie tort, several counts of intentional interference with contractual relations, and defamation. By the present motion defendants seek to dismiss all of the state law causes of action, counts two through seven of the amended complaint, on several theories. They also seek to dismiss Byer and Mazur as defendants and to dismiss Moses as a plaintiff.
I. Federal Preemption of State Causes of Action
Defendants first contend that plaintiffs' state law causes of action are all preempted by federal labor laws and must therefore be dismissed. Commencing in 1935, the federal government enacted a series of laws regulating labor-management disputes and assuring workers and employers of certain rights. In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959), the Supreme Court set forth a test for determining whether these federal laws preempt state laws that are potentially applicable to various labor disputes. "When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield." 359 U.S. at 244. Here, the union's picketing for a Hazantown agreement is an act either arguably protected by section 7 or prohibited by section 8 of the National Labor Relations Act, and therefore Garmon's presumption of preemption applies.
The Garmon Court noted, however, that this presumption of preemption does not apply where the case either (1) touches "interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act," or (2) involves conduct that would only peripherally implicate the concerns that underlie the federal labor laws. Garmon, supra, 359 U.S. at 243-44. As this court has observed, "the paradigmatic example of a case wherein the challenged conduct touches concerns deeply rooted in local feeling and responsibility is an action to enjoin or to recover compensation for violent or threatened violent picketing." Palm Beach Co. v. Journeymen's and Prod. Allied Services of Am. and Canada Int'l Union, 519 F. Supp. 705, 713 (S.D.N.Y. 1981) (Ward, J.); see also Wolf Street Supermarkets, Inc. v. McPartland, 108 A.D.2d 25, 487 N.Y.S.2d 442, 447 (4th Dept. 1985). Thus federal law does not preempt state causes of action that seek to recover for damages resulting from violent picketing. Plaintiffs note that, in each of the contested counts of the amended complaint, they have alleged that damages resulted from violent picketing or violent conduct. Plaintiffs argue that these allegations of violence are sufficient to bring the state law causes of action into the exception to federal preemption outlined in Garmon.
Defendants counter this argument by examining the wording of the amended complaint more closely. They argue that the amended complaint seeks to recover for damages to plaintiffs' business stemming not only from violent incidents on the picket line, but also from peaceful picketing. Defendants correctly point out that state law may provide compensation for "the direct consequences of [violent] conduct," but that it may not award plaintiffs damages "resulting from peaceful picketing or other union activity." United Mine Workers v. Gibbs, 383 U.S. 715, 729, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Indeed, constitutional protection of peaceful union activities requires plaintiffs to meet a rather strict standard in order to recover for damages resulting from picketing where violence is alleged to have occurred. "Where the consequences of peaceful and violent conduct are separable . . . recovery may be had only for the latter." Gibbs, supra, 383 U.S. at 732. If plaintiff cannot separate the consequences of peaceful versus violent conduct, recovery may only be had if the violent conduct was so pervasive that the proof "might support the conclusion that all damages resulting from the picketing were proximately caused by its violent component or by the fear which that violence engendered." Id. (emphasis in original); see also Wolf Street Supermarkets, supra, 487 N.Y.S.2d at 447.
From these propositions, defendants argue that in order to state a non-preempted claim for damages under state law, plaintiffs must either allege that violence dominated the picketing so as to render all damages resulting from the pickets a fruit of violence, or that plaintiffs must confine their requests for damages to those arising solely from violent conduct. Defendants point out that the amended complaint does not allege that violence dominated the picketing and that the amended complaint oversteps its bounds in counts two through seven, seeking recovery for damages resulting from peaceful as well as violent picketing. This overreaching by the amended complaint, in defendants' view, preempts the state causes of action.
Defendants cite one case of this court in support of this argument. Billy Jack For Her, Inc. v. New York Coat, Suit, Dress, Rainwear and Allied Workers' Union, 511 F. Supp. 1180, 1183 n.3 (S.D.N.Y. 1981) (Ward, J.). In Billy Jack the court noted that, while the complaint in that case mentioned acts of violence on the picket line, it sought an injunction against all picketing, not just against violent picketing. Given this broad focus of the complaint, the allegations of violence were deemed insufficient to prevent the state law causes of action in the complaint from being preempted by federal labor laws. Defendants seek to apply the same rationale here.
However, the rule announced in Billy Jack appears to be irrelevant to the matters to be determined in this case. The amended complaint does not so clearly seek compensation for damages resulting from peaceful as well as violent conduct to bring it within the Billy Jack rule. The passages of the amended complaint cited by defendants as overreaching proper bounds are largely ambiguous as to the source of the damages claimed. These counts could surely have been pled more carefully, but the Federal Rules of Civil Procedure require that pleadings be construed liberally, and demand only that defendants be given "fair notice of what plaintiff's claim is and the ground upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). With this standard in mind, the court cannot state that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim" which would cast the state law claims in a properly restricted, non-preempted light. Meyer v. Oppenheimer Management Corp., 764 F.2d 76, 80 (2d Cir. 1985). Accordingly, the state law causes of action, as pleaded, are not preempted by the federal labor laws. Plaintiffs are reminded, however, of the strict burden of proof on the issue of damages that they will face at trial.
II. Failure to Plead Authorization or Ratification of Every Union Member
Martin involved a libel suit against the officers of the National Maritime Union of America in their representative capacity. The Court of Appeals upheld the dismissal of the complaint in the action for failure to allege the individual liability of all union members for the libel, either through ratification or authorization of the act. Plaintiffs in the suit sought to rely upon section 13 of the General Associations Law, which governs unincorporated associations such as unions. N.Y. Gen. Ass'ns Law § 13 (McKinney 1942 & Supp. 1992). That section provides that an action may be maintained against an unincorporated association by naming its president or treasurer as defendant. However, in Martin the Court of Appeals noted that the
privilege [of naming only officers and not the entire membership of the association] was conferred by the Legislature on plaintiffs for their 'convenience,' and created no substantive liability. The liability to be enforced in any such suit, in which association officers are named as representative defendants, is still that of the individual members as individuals, and so the cause of action has to be one 'for or upon which the plaintiffs may maintain such as action * * * against all ...