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ALCANTARA v. ALLIED PROPERTIES

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,
v.
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

I. Introduction

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 transition period.

  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 new workers.

  IV. Law

  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 interest.
(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 service contract.
(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 covered employer.
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 ...


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