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 simple mobile picketing, which is
governed by the Act.
If a cause of action can be maintained under the Act, then
preemption may be appropriate. Farmer v. United Brotherhood of
Carpenters, 430 U.S. 290, 302-05, 97 S.Ct. 1056, 51 L.Ed.2d 338
(1977). The Farmer court urges care in ensuring that the state
action does not become entangled with matters within the
province of the Act. See id. at 306-07, 97 S.Ct. 1056.
Plaintiffs believe that their causes of action cannot be
maintained before the NLRB, and so may be brought in Federal
court. Plaintiffs brief at 14.
In deciding whether to permit an exception to the Garmon
preemption rule, courts have looked at three significant
factors: 1) whether the underlying conduct (i.e., the actions of
picketers and employees and the response by the New York Police)
is protected by the Act; 2) whether there is an overriding state
interest, deeply rooted in local feeling or responsibility, in
state regulation of the conduct in question, rather than the
regulated activity being merely of peripheral concern to federal
labor law; and 3) whether there is a risk that the state cause
of action will interfere with the jurisdiction of the NLRB and
with the effective administration of national labor policy.
Douglas E. Ray et al., Understanding Labor Law 368 (1999).
B. Failure to Support Claims
Defendants also allege that plaintiffs have failed to support
their claims of malicious prosecution, intentional infliction of
emotional distress, and false arrest.
1. Intentional Infliction of Emotional Distress
"Under New York law, a claim for intentional infliction of
emotional distress requires a showing of (1) extreme and
outrageous conduct; (2) intent to cause, or reckless disregard
of a substantial probability of causing, severe emotional
distress; (3) a causal connection between the conduct and the
injury; and (4) severe emotional distress." Stuto v.
164 F.3d 820, 827 (2d Cir. 1999); see also Howell v. New York
Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699
The New York Court of Appeals has strongly cautioned against
allowing emotional distress claims to be brought where other
tort remedies are available. See, e.g., Fischer v. Maloney,
43 N.Y.2d 553, 402 N.Y.S.2d 991, 373 N.E.2d 1215 (1978). This rule
has been consistently applied by lower state courts and federal
courts applying New York law. As one federal district court
recently put the matter:
In New York, "intentional infliction of emotional
distress is a theory of recovery that is to be
invoked only as a last resort," when traditional tort
remedies are unavailable. See EEOC v. Die
Fliedermaus, L.L.C., 77 F. Supp.2d 460, 472 (S.D.N.Y.
1999) (quoting McIntyre v. Manhattan Ford,
Lincoln-Mercury, Inc., 256 A.D.2d 269, 682 N.Y.S.2d 167,
169 (1st Dep't 1998)). Accordingly, "[n]o
intentional infliction of emotional distress claim
will lie where the conduct underlying the claim falls
within the ambit of traditional tort liability."
Hansel v. Sheridan, 991 F. Supp. 69, 75 (N.D.N.Y.
1998) (McAvoy, Chief Judge). In the instant case,
since the conduct complained of are encompassed in
plaintiffs claims for assault and battery and
malicious prosecution, plaintiffs claim for
intentional infliction of emotional distress must be
Naccarato v. Scarselli, 124 F. Supp.2d 36 (N.D.N.Y. 2000).