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MOORE v. CITY OF NEW YORK

September 10, 2002

STEPHEN MOORE, STEVEN LEE, AND MARIBEL LEE AND JOHN CHAN, PLAINTIFFS,
V.
THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, VARIOUS JOHN DOE POLICE OFFICERS, NEW YORK TELEPHONE COMPANY A/K/A BELL ATLANTIC CORP., VARIOUS JOHN DOE EMPLOYEES OF NEW YORK TELEPHONE COMPANY A/K/A BELL ATLANTIC CORP., ROBERT WENZEL, AND JEFF WELSH, DEFENDANTS.



The opinion of the court was delivered by: Weinstein, Senior District Judge.

  MEMORANDUM ORDER AND JUDGMENT

I. Introduction

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The parties stipulate that all federal claims are withdrawn.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.

II. Facts

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 arrested.

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 District Attorney.

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.

III. Law

A. Preemption

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 ...


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