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Helmsley-Spear, Inc. v. Fishman

November 24, 2008


The opinion of the court was delivered by: Pigott, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

The issue on this appeal is whether plaintiffs' private nuisance cause of action is preempted by the National Labor Relations Act (NLRA). We hold that it is not.


Plaintiff Helmsley-Spear, Inc., managing agent of the Empire State Building (ESB)*fn1, retained Copstat Security, LLC, a private security firm, to provide security services for the ESB. In 2005, defendants Michael Fishman, as President of SEIU Local 32B-32J, AFL-CIO, SEIU Local 32B-32J, AFL-CIO, and John Does 1-7 (collectively, "the Union") began a concerted effort to organize Copstat employees. As part of that endeavor, on 18 separate days between November 2005 and February 2006, members of the Union assembled outside certain entrances of the ESB, distributing leaflets while one or more of the members drummed on a plastic container, metal pot or tin can.

Thereafter, nonparty Copstat filed three unfair labor practice charges against the Union with the National Labor Relations Board (NLRB), alleging that the Union's picketing or threatened picketing violated 29 U.S.C. § 158(b)(7)(C), and that the Union's activity was designed to coerce Helmsley-Spear into discontinuing business with Copstat in violation of 29 U.S.C. § 158(b)(4)(i)(ii)(B) and coerce Copstat employees into selecting the Union as their collective bargaining representative in violation of 29 U.S.C. § 158(b)(1)(A).

The NLRB dismissed the charges, finding that the Union "was engaged in protected handbilling or leafleting" and that "the use of the drum on the days in question . . . was [not] sufficient to transform the leafleting activity into unlawful conduct." The NLRB's Office of Appeals affirmed that decision on the same grounds.

Some time later, plaintiffs Helmsley-Spear and owners of nearby businesses commenced the instant private nuisance action against the Union seeking an order enjoining it from engaging in drumming or other noise-making activities. Following a hearing, Supreme Court granted plaintiffs' request for a preliminary injunction, concluding that they met their burden of establishing that the drumming "caused stress and business interruption" which, if left unabated, would cause more stress and harm to the listeners. The Court limited the injunction specifically to the drumming and did not prohibit the leafleting.

The Appellate Division reversed and dismissed the complaint, holding that plaintiffs' "action to restrain conduct of loud drumming to publicize [the] . . .[U]nion's handbilling activities is preempted by federal labor law," and stating that NLRB had previously concluded that the Union had the right to engage in the drumming (Helmsley-Spear, Inc. v Fishman, 39 AD2d 361, 361 [1st Dept 2007] [citations omitted]). Because it found plaintiffs' claim to be preempted by federal law, the Appellate Division did not address the Union's additional argument, that New York Labor Law § 807 prohibited the trial court from enjoining the drumming.

This Court granted leave and we now reverse.


It has been a hallmark of state-federal jurisprudence in the area of Labor Law that each jurisdiction recognize the respective rights and remedies of the other. The federal courts, in finding "presumptive preemption" with respect to certain union activities, have been careful to avoid interfering with a state's right to keep order within its borders. The states, similarly, have been careful to respect the Federal government's right to protect unions, their workers and appropriate organizing activities.

In this regard, two federal statutes, NLRA § 7 (29 U.S.C. § 157) and § 8 (29 U.S.C. § 158) "regulate 'concerted activities' and 'unfair labor practices,' respectively, seeking to protect the former and stamp out the latter" (Building Trades Employers' Educ. Assoc. v McGowan, 311 F3d 501, 508 [2d Cir 2002]). Because the NLRA does not include an express preemption provision (see Building & Const. Trades Council of the Metropolitan Dist. v Associated Builders & Contractors of Mass./R.I., Inc., 507 US 218, 224 [1993]), the United States Supreme Court in San Diego Bldg. Trades Council v Garmon (359 US 236 [1959]) addressed Congress's silence, by holding that "state regulations and causes of action are presumptively pre-empted if they concern conduct that is actually or arguably either prohibited or protected by the Act" (Belknap, Inc. v Hale, 463 US 491, 498 [1983] citing Garmon, 359 US at 245).

Where conduct falls within the scope of this so-called "Garmon preemption", state regulations or causes of action may still be maintained "if the behavior to be regulated is behavior that is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility" (Belknap, 463 US at 498 citing Garmon, 359 US at 243-244; Sears, Roebuck & Co. v San Diego County Dist. Council of Carpenters, 436 US 180, 200 [1978]; Farmer v United Broth. of Carpenters and Joiners of America, Local 25, 430 US 290, 295 [1977]). In such cases, "the state's interest in controlling or remedying the effects of the conduct is balanced against both the interference with the [NLRB's] ability to adjudicate controversies committed to it by the Act (citations omitted), and the risk that the state will sanction conduct that the Act protects" (Belknap, 463 US at 498-499 citing Sears, Roebuck & Co., 436 US at 205).

Here, even if one were to assume that the drumming constituted arguably "protected" conduct under the NLRA, as the Union argues and the Appellate Division implied, it does not necessarily follow that our state courts are foreclosed from adjudicating plaintiffs' claim. This point was made clear in Sears, Roebuck & Co., where the United States Supreme Court held that a state trespass claim lodged by an employer against picketers challenging the location of the picketing as opposed to the ...

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