United States District Court, E.D. New York
FRANCISCO ALCANTARA; EDDIE ANDERSON; OSCAR DIAZ; JOSEPH MARIN; VINCENTE MARTINEZ; FRANCISCO MORILLO; MANUEL PIZARRO; NELSON R. RODRIGUEZ; LUIS SANCHEZ; BERNARDO SEGURA; and ALIPIO TIBURCIO, Plaintiffs,
ALLIED PROPERTIES, LLC; OCEAN VIEW II ASSOCIATES; OCEAN VIEW REALTY CO.; BRIDGEVIEW II CO.; and T.U.C. MANAGEMENT CO., INC, Defendants.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM & ORDER
In deciding this case, the court takes judicial notice of the
widespread disturbances in New York City following the "9/11
attack" on the World Trade Center. Cf. Leslie Eaton, In
Nation's Courtrooms, Wounds from 9/11 Attacks Persist, N.Y.
TIMES, Sept. 9, 2004, at A1; Lydia Polgreen, With [9/11] Funds
Winding Down, Questions Remain About Longer-Term Needs, N.Y.
TIMES, Sept. 9, 2004, at B8. Dislocation of workers and
businesses and the suffering caused by loss of jobs led to a
workers' protection act in the exercise of the City's police
powers. It was deemed necessary to stabilize the City and enable
it to begin its recovery. This suit raises an aspect of the
effort by the City, its residents, businesses, workers and others
to rebuild New York. Federal policy and statutes are not
inconsistent with such local self-help.
Plaintiff-workers allege violations of the New York Displaced
Building Service Workers Protection Act ("NYDWPA"). They seek
restoration of their employment and back wages and benefits.
See N.Y.C. Admin. Code § 22-505. The NYDWPA was designed to
mitigate the harsh economic aftershocks of the devastating
terrorist attack of September 11, 2001. Id. Historical Note (effective November 27, 2002). It requires, in part, certain
purchasers of large buildings in New York City to retain the
service employees of the selling party for at least a ninety-day
The case was commenced in a New York court. It was removed to
federal court by defendants, building owners covered by the
NYDWPA. Plaintiffs move to remand the case. Defendants argue that
plaintiffs' state law claims are preempted by the National Labor
Relations Act, 29 U.S.C. §§ 157 & 158 ("NLRA") and the Labor
Management Relations Act, 29 U.S.C. § 185 ("LMRA"), and are,
therefore, removable. The motion to remand is granted for the
reasons stated below.
II. Procedural History
Plaintiffs originally filed this action in the Supreme Court of
the State of New York, County of Queens. On July 28, 2004,
plaintiffs filed an order to show cause, requesting a temporary
restraining order and preliminary injunction to restore their
employment pursuant to section 22-505(c)(2) of the NYDWPA. On
August 2, 2004, the date the order to show cause was to be heard
in state court, defendants removed the case to federal court
pursuant to section 1331 of title 28 of the United States Code.
III. Facts Alleged
Plaintiffs were regularly employed as building service workers
in various residential buildings owned by defendants Oceanview II
Associates, Bridgeview II Co. and Ocean View Realty Co. T.U.C.
Management Co. managed the buildings. The workers were paid
between $17.28 and $19.10 hourly. On July 14, 2004, defendant
Allied Properties, LLC ("Allied Properties") purchased the
residential buildings in which plaintiffs labored. On July 15 and
16, 2004, plaintiffs and their union, Service Employees International
Union, Local 32BJ, AFL-CIO, requested that Allied Properties
employ plaintiffs for a transition period as required by the
NYDWPA. Allied Properties refused to retain plaintiffs. It hired
A. New York Displaced Building Service Workers Protection Law
Section 22-505 of the NYDWPA provides for notice of a demand to
continue employment and the right to temporary continuance in the
employment of a new building owner. It reads in part:
b. (1) No less than fifteen calendar days before
terminating any building service contract, any
covered employer shall request the terminated
contractor to provide to the successor employer a
full and accurate list containing the name, address,
date of hire, and employment occupation
classification of each building service employee
currently employed at the site or sites covered by
the terminated contract.
(2) No less than fifteen calendar days before
transferring a controlling interest in any covered
building in which building services employees are
employed, any covered employer shall provide to the
successor employer a full and accurate list
containing the name, address, date of hire, and
employment occupation classification of each building
service employee currently employed at the site or
sites covered by the transfer of controlling
(3) No more than seven calendar days after notice
that its building service contract has been
terminated, any covered employer shall provide to the
successor employer a full and accurate list
containing the name, address, date of hire, and
employment occupation classification of each building
service employee employed on the notice date at the
site or sites covered by the terminated building
(4) When providing the notice required under this
subsection, each covered employer shall ensure that a
notice to building service employees is posted
setting forth the rights provided under this section
and which includes a copy of the list provided under
the preceding sections, and that such notice is also
provided to the employees' collective bargaining
representative, if any. The notice and list shall be
posted in the same location and manner that other
statutorily required notices to employees are posted
at the affected building(s). (5) A successor employer shall retain for a ninety
(90) day transition employment period at the affected
building(s) those building service employee(s) of the
terminated building service contractor (and its
subcontractors), or other covered employer, employed
at the building(s) covered by the terminated building
service contract or owned or operated by the former
N.Y.C. Admin. Code § 22-505(b).
Citing the effects of the attacks of September 11, 2001, New
York City enacted the NYDWPA "to promote stability in employment
for building service workers, which [would] reduce the need for
social services resulting from unemployment, and promote
stability in the service industry." Id. Historical Note.
B. Federal Preemption as Basis for Removal
"The presence or absence of federal-question jurisdiction is
governed by the `well-pleaded complaint rule,' which provides
that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). The Supreme Court has ruled that "a case may not be
removed to federal court on the basis of a federal defense,
including the defense of pre-emption, even if the defense is
anticipated in the plaintiff's complaint, and even if both
parties concede that the federal defense is the only question
truly at issue." Id. at 393 (emphasis in original). As an
exception to that rule, under the complete preemption doctrine,
"the pre-emptive force of a statute [may be] so `extraordinary'
that it `converts an ordinary state common-law complaint into one
stating a federal claim for purposes of the well-pleaded
complaint rule.'" Id. (quoting Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 65 (1987)). C. Garmon Preemption
In San Diego Bldg. Trades Council v. Garmon, the Supreme
Court held that "[w]hen 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. 236, 244 (1959); see also 29 U.S.C. §§ 157 & 158. "Sections 7
and 8 of the [NLRA] regulate `concerted activities' and `unfair
labor practices,' respectively, seeking to protect the former and
stamp out the latter." Bldg. Trades Employers' Educ. Assoc. v.
McGowan, 311 F.3d 501, 508 (2d Cir. 2002) (citation omitted).
"States are preempted from regulating conduct that even
`arguably' constitutes an unfair labor practice under NLRA § 8."
Caldwell v. Am. Basketball Ass'n, Inc., 66 F.3d 523, 527 (2d
"Federal preemption is a defense, and therefore, the general
rule is that even if a state law based cause of action is
preempted by federal law, the case cannot be removed." Hernandez
v. Conriv Realty Assocs., 116 F.3d 35, 38 (2d Cir. 1997). Most
courts have held that Garmon preemption is not a basis for
removal from state to federal court. See, e.g., Hayden v.
Reickerd, 957 F.2d 1506, 1512 (9th Cir. 1992) ("If the Garmon
doctrine preempts state claims, jurisdiction vests in neither
state nor federal court, but rather exclusively in the NLRB.");
Williams v. Comcast Cablevision of New Haven, Inc., 322 F.
Supp.2d 177, 184 n. 6 (D. Conn. 2004) ("District courts in this
circuit have declined to find that Garmon preemption provides a
basis for removal."); Greco Bros. Readi-Mix Concrete Co. v.
Local 282 Int'l Bhd. of Teamsters, No. 01-CV-2217, 2002 WL
417167 (E.D.N.Y. Mar. 7, 2002) (finding that Garmon preemption
is not a basis for removal); TKO Fleet Enters., Inc. v. Dist.
15, Int'l Ass'n of Machinists & Aerospace Workers, 72 F. Supp. 2d 83, 87 (E.D.N.Y. 1999) ("[L]ower courts
have uniformly held that defendants may not remove state claims
to federal court by alleging Garmon preemption.").
D. Machinists Preemption
The Machinists preemption doctrine is based on the Supreme
Court's ruling in Lodge 76, Int'l Ass'n of Machinists v.
Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976). The
doctrine "protects against interference with policies implicated
by the structure of the [NLRA] itself, by preempting state law
and state causes of action concerning conduct that Congress
intended to be unregulated." Metro. Life Ins. Co. v.
Massachusetts, 471 U.S. 724, 749 (1985); see also Machinists,
427 U.S. at 141 (questioning whether action should be "controlled
by the free play of economic forces") (citation omitted). This
"form of preemption protects employers' and unions' use of
`economic weapons' that Congress aimed for them to have freely
available." McGowan, 311 F.3d at 508 (quoting Machinists,
427 U.S. at 150-51). Courts have generally held that Machinists
preemption protects against the unsettling of the "balance of
interests established in the NLRA." Id. at 509; see also Fort
Halifax Packing Co. v. Coyne, 482 U.S. 1, 20 (1987) ("[T]he NLRA
is concerned with ensuring an equitable bargaining process, not
with the substantive terms that may emerge from such
bargaining."); Machinists, 427 U.S. at 149 (referring to the
balance of power between labor and management).
Courts in this circuit have evidently not considered whether
Machinists preemption provides a basis for removal to federal
court. The parties have suggested no reason why the Machinists
doctrine would support removal when Garmon preemption does not.
See Section IV.C., supra.
The Court of Appeals for the Second Circuit has declared that
"state action is only preempted if it regulates the use of economic weapons that are
recognized and protected under the NLRA such that the state or
local government has entered `into the substantive aspects of the
bargaining process to an extent Congress has not countenanced.'"
Rondout Elec., Inc. v. N.Y.S. Dept. of Labor, 335 F.3d 162, 167
(2d Cir. 2003) (quoting Machinists, 427 U.S. at 149). The
Supreme Court has declared that the primary goal of the NLRA is
the establishment of "an equitable process for determining terms
and conditions of employment, and not with particular substantive
terms of the bargain. . . ." Metro. Life Ins. Co.,
471 U.S. at 753-54 (describing purpose and goals of the NLRA).
In Metro. Life Ins. Co., Massachusetts required that certain
minimum health insurance benefits be provided to commonwealth
residents. The insurance company argued that the law was
preempted by the NLRA, because it imposed a contract requirement
that ordinarily would have been the result of collective
bargaining. In ruling that the state statute was not preempted,
the Court held that "[m]inimum labor standards affect union and
nonunion employees equally, and neither encourage nor discourage
the collective-bargaining processes that are the subject of the
NLRA." Id. at 755. Similarly, in Fort Halifax Packing Co.,
482 U.S. at 4, the appellant challenged a Maine statute that
required employers to make a one-time severance payment to
employees in the event of a plant closing. The Court held that
"the mere fact that a state statute pertains to matters over
which the parties are free to bargain cannot support a claim of
preemption." Id. at 21. As the Court has concluded in the
"minimum labor standard" cases, absence of a completely
laissez-faire employment market does not automatically
necessitate preemption under the "free play of economic forces"
theory espoused in Machinists. The pivotal question is whether
the state regulation in question is "`inconsistent with the
general legislative goals of the NLRA.'" Id. (quoting Metro. Life Ins. Co.,
471 U.S. at 757).
In Machinists, a state administrative agency held that
union's members' concerted refusal to work overtime was a
violation of state labor laws. The Court held that the state
ruling was preempted by the NLRA, because Congress intended for
"self-help economic activities" to be governed by the federal law
of labor relations. Machinists, 427 U.S. at 148-50; see also
Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608,
615-16 (1986) (finding preemption when the city imposed a
limitation on economic self-help activities); Derrico v. Sheehan
Emergency Hosp., 844 F.2d 22, 29 (2d Cir. 1988) (holding that
suit under New York law is preempted because it would alter
labor-management relationship and "affect the collective
bargaining process that lies at the heart of the NLRA"). "To
violate Machinists, however, the state regulation at issue must
do more than incidentally affect the union organizing process.
The Supreme Court has consistently distinguished between state
laws of general applicability (such as regulation of labor
conditions), which generally are not preempted by the NLRA, and
state regulation of the NLRA process itself, which generally is
preempted." Chamber of Commerce of United States v. Lockyer,
364 F.3d 1154, 1167 (9th Cir. 2004) (citing Machinists,
427 U.S. at 156).
The litigation that most closely mirrors the facts of the
instant case was decided by the Court of Appeals for the District
of Columbia. See Washington Serv. Contractors Coalition v.
District of Columbia, 54 F.3d 811 (D.C. Cir. 1995). Appellees
there argued that the District of Columbia's displaced workers
statute which is similar in sprit to New York's was preempted
by Garmon and Machinists. The court held that the law was not
preempted, finding that the displaced workers law did not
"disturb the labor dispute resolution system established by the NLRA." Id. at 817. It stated: "[T]he District has enacted
substantive employee protective legislation having nothing to do
with rights to organize or bargain collectively. The NLRA does
not preempt such legislation." Id. at 818.
E. Section 301 Preemption
"Under section 301 [of the Labor Management Relations Act],
state law based claims for `[s]uits for violation of contracts
between an employer and a labor organization' are completely
preempted, and if such a suit is filed in state court, it can be
removed to federal court." Hernandez v. Conriv Realty Assocs.,
116 F.3d 35, 38 (2d Cir. 1997) (citing Caterpillar Inc. v.
Williams, 482 U.S. 386, 393-94 (1987)). The Supreme Court has
held "that an application of state law is pre-empted by § 301 of
the Labor Management Relations Act of 1947 only if such
application requires the interpretation of a
collective-bargaining agreement." Ligle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399, 413 (1988).
The Court of Appeals for the Second Circuit has held that
"section 301 has no application in the absence of a currently
effective [collective bargaining agreement]." Derrico v. Sheehan
Emergency Hosp., 844 F.2d 22, 25 (2d Cir. 1988). The court has
also "found cases invoking section 301's sweeping preemptive
force . . . only where state law claims coincide with current
collective bargaining agreements." Id. (emphasis in original)
(citing Int'l Bhd. of Elec. Workers v. Hechler, 481 US 851,
851-52 (1987); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
203-04 (1985)). "However, `not every dispute . . . tangentially
involving a provision of a collective-bargaining agreement, is
pre-empted by § 301' and `[a] collective-bargaining agreement may
. . . contain information such as rate of pay and other economic
benefits that might be helpful in determining the damages to
which a worker prevailing in a state-law suit is entitled.'" Hernandez, 116 F.3d at 40 (quoting Ligle, 486 U.S. at 413 n.
12). The Supreme Court has "underscored the point that § 301
cannot be read broadly to pre-empt nonnegotiable rights conferred
on individual employees as a matter of state law." Lividas v.
Bradshaw, 512 U.S. 107, 123 (1994). The Court was "clear that
when the meaning of contract terms is not the subject of dispute,
the bare fact that a collective-bargaining agreement will be
consulted in the course of state-law litigation plainly does not
require the claim to be extinguished." Id. at 124.
In Foy v. Pratt and Whitney Group, the court held that when
the nature of the dispute is fact-intensive, the review of the
collective bargaining agreement is not an "interpretation"
requiring preemption. 127 F.2d 229, 234 (2d Cir. 1997). The Court
of Appeals for this circuit has admitted that the "boundary
between claims requiring `interpretation' of a [collective
bargaining agreement] and ones that merely require such an
agreement to be `consulted' is elusive." Vera v. Saks & Co.,
335 F.3d 109, 115 (2d Cir. 2003) (the court must decide whether
there is an agreement between the parties to alter [a] common law
rule") (quoting Wynn v. AC Rochester, 273 F.3d 153, 158 (2d
V. Application of Above Law to Facts
A. Garmon Preemption
The Supreme Court has stated that "pre-emption should not be
lightly inferred in this area, since the establishment of labor
standards falls within the traditional police power of the
State." Fort Halifax Packing Co., 482 U.S. at 21. The majority
of courts considering the question of whether Garmon preemption
supports removal have answered in the negative. Setting aside the
question of whether the NYDWPA is preempted by sections 7 and 8
of the NLRA, Garmon preemption cannot support removal to
federal court. In any event, the only court to consider whether a displaced
workers law is preempted by the Garmon doctrine found that it
was not. See Washington Serv. Contractors Coalition,
54 F.3d at 816 ("The [displaced workers statute] therefore raises no issue
that the NLRB would have jurisdiction to decide under § 7. . . .
The `terms' of the [displaced workers statute] thus do not
`encompass' any matter even arguably regulated by § 8 of the
B. Machinists Preemption
"The Supreme Court has only applied the so called `complete
preemption' doctrine `in the very narrow range of cases where
`Congress has clearly manifested an intent' to make a specific
action within a particular area removable.'" Greco Bros., 2002
WL 417167, at *1 (quoting Marcus v. AT&T Corp., 138 F.3d 46, 54
(2d Cir. 1998)). Machinists preemption does not constitute the
"extraordinary" circumstance, justifying complete federal
preemption of state law. See Caterpillar, 482 U.S. at 393. The
cases that have found complete preemption involved situations in
which Congress has developed overarching comprehensive regulatory
schemes leaving no space for the state action at issue. See,
e.g., Avco Corp. v. Machinists, 390 U.S. 557 (1968) (holding
that section 301 of the Labor Management Relations Act,
29 U.S.C. § 185, completely preempts competing state law); Metro, Life
Ins. Co. v. Taylor, 481 U.S. 58, 66-67 (1987) (finding that
sections of the Employee Retirement Income Security Act of 1974
(ERISA), 29 §§ 1001 to 1461, completely preempt state law).
Machinists preemption is grounded in what Congress "intended to
be unregulated," and courts decide which areas Congress may have
intended to be left to market forces. Metro. Life Ins. Co. v.
Massachusetts, 471 U.S. 724, 749 (1985).
Deciding on preemption is an inexact art. Congress, in not
addressing certain matters, cannot generally be said to have signaled an intent to make suits
based on state law covering those matters removable to federal
court. To hold otherwise would contravene the Supreme Court's
view that complete preemption is to be granted only sparingly and
that courts should be reluctant to allow removal of cases to
federal court based solely on the Garmon preemption defense.
Even assuming, arguendo, that Machinists preemption is a
proper basis for removal, the NYDWPA is not preempted by the
NLRA. State regulation is preempted by the NLRA when it intrudes
on the collective bargaining process scheme since the NLRA is
concerned with "labor dispute resolution." Washington Serv.
Contractors, 54 F.3d at 817. The City law operates completely
independently of collective bargaining in the exercise of
municipal police powers. It does not implicate any of the usual
factors found to invite Machinists preemption. The NYDWPA does
not conflict with or inhibit the bargaining or dispute resolution
process established by the NLRA. The City law does not regulate
economic self-help activities. The terms of the NYDWPA apply to
union and nonunion employees equally. The NLRA does not preempt
section 22-505 of the New York City Administrative Code.
C. Section 301 Preemption
The central question here is whether the disposition of this
case will require interpretation or mere consultation of a
collective bargaining agreement. It is undisputed by the parties
that there is no collective bargaining agreement between
plaintiffs and defendant, the new owner of the property, Allied
Properties. The alleged violation of the NYDWPA by Allied
Properties does not require interpretation of plaintiffs'
collective bargaining agreement with the former owner, their
former employer, even though, if this case were to reach a
damages phase, the agreement might determine back pay and the costs of benefits. See N.Y.C.
Admin. Code § 22-505(c). The legality of any collective
bargaining agreement is not challenged as in Vera v. Saks &
Co., 335 F.3d 109 (2d Cir. 2003) (finding section 301 preemption
because the court would be required to interpret the collective
bargaining agreement based on legal challenges to its validity).
Defendants argue that section 301 preemption applies because
the NYDWPA allows a successor employer to opt out of its
provisions if "on or before the effective date of the transfer of
control . . . or the commencement of services by a successor
building service contractor, [the successor] agrees to assume, or
to be bound by, the collective bargaining agreement of the
predecessor covered employer covering building service employees,
provided that the collective bargaining agreement provides terms
and conditions for the discharge or laying off of employees."
N.Y.C. Admin. Code § 22-505(d)(i). They claim that the opt-out
provision requires an analysis of the terms and conditions of the
predecessor's collective bargaining agreement with plaintiffs.
Defendants' argument fails. There is no suggestion that the
purchaser, Allied Properties, agreed to be bound by the
collective bargaining agreement prior to the sale of the
buildings. The opt-out provision is not implicated;
interpretation of a collective bargaining agreement is not
Plaintiffs have brought suit under New York City law. The suit
does not require interpretation of the collective bargaining
agreement's provision on the sale or transfer of buildings. The
agreement is not currently effective as to Allied Properties. As
the Supreme Court put the matter, section 301 should not "be read
broadly to pre-empt nonnegotiable rights conferred on individual
employees as a matter of state law." Lividas v. Bradshaw,
512 U.S. 107, 123 (1994). VI. The Problem of Sections 22-505(b)(8) and (d)
The above analysis is placed in some doubt by two provisions of
section 22-505 of the New York Administrative Code. Paragraph
eight (8) of subdivision b provides that after the ninety-day
period, if the employee's performance is satisfactory, the
employee will be retained.
It reads as follows:
b. (8) At the end of the 90-day transition period,
the successor employer shall perform a written
performance evaluation for each employee retained
pursuant to this section. If the employee's
performance during such 90-day period is
satisfactory, the successor contractor shall offer
the employee continued employment under the terms and
conditions established by the successor employer or
as required by law.
N.Y.C. Admin. Code § 22-505(b)(8).
Subdivision d, as discussed in Section V.C., supra, permits
an opt-out of the code provision by the successor employer in
effect becoming involved in the predecessor's collective
bargaining agreement, or its own agreement, or a new agreement.
It reads as follows:
d. The provisions of this section shall not apply (i)
to any successor employer that, on or before the
effective date of the transfer of control from a
predecessor covered employer to the successor
employer or the commencement of services by a
successor building service contractor, agrees to
assume, or to be bound by, the collective bargaining
agreement of the predecessor covered employer
covering building service employees, provided that
the collective bargaining agreement provides terms
and conditions for the discharge or laying off of
employees; or (ii) where there is no existing
collective bargaining agreement as described in
subsection (i) above, to any successor employer that
agrees, on or before the effective date of the
transfer of control from a predecessor covered
employer to the successor employer or the
commencement of services by a successor building
service contractor, to enter into a new collective bargaining agreement covering its building service
employees, provided that the collective bargaining
agreement provides terms and conditions for the
discharge or laying off of employees; or (iii) to any
successor employer whose building service employees
will be accreted to a bargaining unit with a
pre-existing collective bargaining agreement,
provided that the collective bargaining agreement
provides terms and conditions for the discharge or
laying off of employees; or (iv) any covered employer
that obtains a written commitment from a successor
employer that the successor employer's building
service employees will be covered by a collective
bargaining agreement falling within subparts (i),
(ii), or (iii) above.
Id. § 22-505(d).
These provisions suggest that the code requirements may impinge
on national labor relations' preemptive laws and regulations
because they seem to call for continued employment after the
ninety-day period and for application of a collective bargaining
agreement that would be subject to the NLRA. It is not clear,
however, that these provisions are constitutional in so far as
they arguably constitute an improper taking under the Fourteenth
Amendment or an interference with federal labor law. But cf.
Washington Serv. Contractors, 54 F.3d at 818 (no
unconstitutional taking in D.C. statute).
The problem could be avoided by the state court declaring that
subdivision d and paragraph eight (8) of subdivision b are
unconstitutional, in violation of the Fourteenth Amendment and
preemption under the Supremacy Clause of the federal
constitution. In this respect, the lack of any sunset provision
in section 22-505 might be relevant. The state court could
declare these parts of section 22-505 (or the whole of section
22-505) invalid. It could then construe the statute in its
constitutional aspects to guarantee only ninety days' employment or payment in lieu of employment, rather than continued
employment after ninety days. This would avoid any preemption
problem warranting removal.
The state court should be given the opportunity to construe
this municipal provision before the federal court does so,
particularly because section 1 of the legislative findings and
intent, as noted in Section IV.A., supra, suggest that the
problem addressed by section 22-505 was expected to be of limited
duration. The entire declaration reads as follows:
Section 1. Declaration of Legislative Findings and
Intent. The effects of September 11 and the deepening
recession have been devastating for low income New
Yorkers. The volatility of the real estate industry
coupled with new trends in the service economy are
undermining stable employment relationships and
creating a drain on an already overburdened social
service system. At a time of great uncertainty, it is
the policy of the City to promote stability in
employment for building service workers, which will
reduce the need for social services resulting from
unemployment, and promote stability in the service
Id. Historical Note.
In construing section 22-505 and the City's power to adopt it,
appeal through the state system is more appropriate than appeal
through the federal system. New York City's power to adopt an
important provision affecting workers' rights may be limited.
See City of New York v. Beretta U.S.A. Corp.,
315 F. Supp. 2d 256, 263-74 (E.D.N.Y. 2004) (discussing New York City's
powers versus New York State's authority). VII. Conclusion
Plaintiffs' motion to remand is granted. No costs or
© 1992-2004 VersusLaw Inc.