The opinion of the court was delivered by: Weinstein, Senior District Judge.
MEMORANDUM ORDER AND JUDGMENT
This complaint arises out of a labor dispute. Some of the
employees of the struck employer felt threatened by strikers.
They complained to the police about abuse and threats by
plaintiff-strikers. The police arrested the strikers. Ultimately
the state criminal prosecution was dismissed. The strikers now
sue the employees, the employer, the Police Department, the
arresting policemen and the City of New York. For the reasons
set out below there is no basis for the action.
The parties stipulate that all federal claims are withdrawn.
Nevertheless this court exercises jurisdiction to avoid further
burdening the parties and the state courts.
Plaintiffs were engaged in a strike involving mobile picketing
against defendant-Bell Atlantic. Picketing led to verbal
confrontations and claims by defendant-Bell Atlantic
non-striking employees that they had been threatened, among
other ways, by thrown rocks. They complained to New York City
Police officers. Three of the complained against strikers were
The district attorney prosecuted the strikers. When the
employees who had complained to the police withdrew their
charges the criminal case was dismissed on motion of the
Unfair Labor Practice charges filed by plaintiffs have been
settled by the National Labor Relations Board ("NLRB").
Plaintiffs brief at 15. No documentation regarding that
administrative proceeding has been submitted by any party.
Plaintiffs allege malicious prosecution and intentional
infliction of emotional distress against defendant-Bell Atlantic
and two of its employees. With regard to the City of New York
and the police officers, plaintiffs claim false arrest.
Bell and its employees argue that the action is preempted by
the National Labor Relations Act ("NLRA" or "Act").
29 U.S.C. § 157. The Act gives the NLRB exclusive original jurisdiction over
labor law activity. See San Diego Building Trades Council v.
Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
This is referred to as "Garmon preemption." Stated broadly,
Garmon holds that the NLRA preempts state regulation of
conduct that is either arguably protected by the Act or arguably
prohibited by the Act. Garmon also recognizes a "local
interests" exception to preemption where claims "touch interests
so deeply rooted in local feeling and responsibility that, in
the absence of compelling Congressional direction, we could not
infer that Congress had intended to deprive the States of power
to act." Garmon, 359 U.S. at 243-44, 79 S.Ct. 773.
The ninth circuit recently noted in Radcliffe v. Rainbow
Construction, 254 F.3d 772, 785 (2001), that "false arrest,
false imprisonment, and malicious prosecution are similar to
torts of threatened violence, traditionally held not to be
preempted, or intentional infliction of emotional distress, and
defamation, both of which the Supreme Court has held to be
excepted from Garmon's preemption rule even though they
involve conduct arguably protected or prohibited by the NLRA."
Defendants attempt to distinguish Radcliffe on the grounds
that it was a case where the false arrest arose out of a
trespass — a state law action. In the instant case the alleged
false arrest arose from ...