Kenneth A. Margolis, Esq. Daniel Kirschbaum, Esq. G. Peter
Clark, Esq. Kauff McGuire & Margolis LLP Attorneys for
H. Byington III, Esq. Archer, Byington, Glennon & Levine
LLP Attorneys for Defendants
KATHRYN E. FREED, J.S.C.
following e-filed documents, listed by NYSCEF document number
(Motion 001) 2, 22, 24, 30, 31, 32, 33, 34, 35, 36, 37, 38,
39, 40, 41, 42, 43, 44, 45, 46, 47, 62, 64, 65, 81, 82, 84
were read on this motion to/for PREL INJUNCTION/TEMP REST
the foregoing documents, and after a hearing, the application
action by plaintiff Charter Communications, Inc.
("Charter") sounding, inter alia, in nuisance,
assault, and trespass, and seeking damages against defendants
Local Union No. 3, International Brotherhood of Electrical
Workers, AFL-CIO ("Local 3"), Lance Van Arsdale, in
his capacity as Assistant Business Manager, Maintenance
Division of Local No. 3, Derek Jordan, in his capacity as
Business Representative of Local No. 3, Sean Fitzpatrick, in
his capacity as Business Representative of Local No. 3, and
"John Does" (names being fictitious, all of whom
are unknown to plaintiff, all of persons being members of or
acting in concert with IBEW Local No. 3) plaintiff moves, by
order to show cause ("OSC"), pursuant to CPLR 6313
and Labor Law § 807, for a temporary restraining order
("TRO") and preliminary injunction. Defendants
oppose the motion. After an evidentiary hearing, and after a
review of the parties' pre- and post-hearing submissions,
as well as the parties' arguments and the relevant
statutes and case law, the application is denied.
AND PROCEDURAL BACKGROUND:
formerly Time Warner Cable, is a corporation which provides
cable television, internet and voice services to residential,
commercial and governmental subscribers. Doc. 25, at par. 5.
In the New York area, Charter provides such services under
the brand name Spectrum. Id. The company employs
approximately 1, 700 cable technicians in a bargaining unit
represented by defendant Local 3, a labor union. Doc. 25, at
par. 8. On or about February 6, 2017, Charter and Local 3
began collective bargaining negotiations. Id., at
par. 13. On March 28, 2017, Local 3 commenced a strike, and
certain employees of Charter began a work stoppage.
Id., at par. 16. Charter alleged that, since the
strike began, its equipment has been "sabotage[d]"
on numerous occasions and that Local 3 and its leadership
have encouraged and condoned such acts. Id., at
pars. 19-48. It further alleged that two Local 3 members have
been arrested in connection with these acts. Id., at
pars. 37-40, 47.
commenced this action against defendants Local 3, Lance Van
Arsdale, in his capacity as Assistant Business Manager,
Maintenance Division of Local 3, Derek Jordan, in his
capacity as Business Representative of Local 3, Sean
Fitzpatrick, in his capacity as Business Representative of
Local 3, and certain "John Does" who allegedly were
members of or acted in concert with Local 3, by filing a
summons and verified complaint on October 10, 2017. Doc. 1.
In its amended verified complaint Charter alleged, inter
alia, that it was entitled to injunctive relief due to Local
3's "unlawful and destructive campaign of sabotage
against Charter's equipment." Doc. 25, at par. 1.
Charter's amended complaint set forth details regarding
the alleged incidents of vandalism and sabotage. It also
alleged, inter alia, that Local 3 pickets:
engaged in unlawful acts against Charter and its property and
employees - including but not limited to blockading and
preventing ingress to and egress from Charter facilities;
interfering with and preventing the free movement of Charter
vehicles on the public streets; threats of physical violence
against Charter employees and their families, deliberate
damage to Charter vehicles; and interfering with and
threatening contractors hired by Charter... Id., at
asserted causes of action against defendants sounding in
private nuisance, public nuisance, assault, and trespass to
chattels. Doc. 25. Charter also alleged a separate cause of
action against defendants seeking a permanent injunction
against them pursuant to Labor Law § 807. Doc. 25.
October 11, 2017, Charter brought the instant OSC, pursuant
to CPLR 6313 and Labor Law § 807, seeking a TRO and
preliminary injunction enjoining defendants from a)
trespassing or picketing within any Charter facility; b)
approaching within 25 feet of any Charter facility, vehicle
or other property; c) directing abusive or threatening
language or gestures toward any person at or in the vicinity
of any Charter facility, vehicle, or other property; d)
delaying, obstructing, or otherwise interfering with the
entry of people and/or vehicles into Charter facilities; and
e) obstructing, harassing, intimidating, assaulting,
threatening or interfering with any Charter employee or an
employee of an entity doing business with Charter. Doc. 2. In
support of the OSC, Charter submitted, inter alia, affidavits
of Charter employees who attested to allegedly illegal
conduct by Local 3 picketers including, among other things,
blocking ingress and egress to Charter facilities and verbal
abuse of Charter employees. Docs. 7, 9-14, 16, 19. On October
12, 2017, this Court signed the OSC but declined to grant
Charter a TRO on the ground that, pursuant to Labor Law
§ 807, such relief could not be granted without a
hearing. Tr. of Proceedings of 10/12/17, at p. 28-29. This
Court then directed that a hearing be scheduled to determine
whether Charter was entitled to injunctive relief.
Court conducted a hearing in this matter pursuant to Labor
Law § 807 on October 23, 25, 26 and 27, 2017. The scope
of the hearing included the blocking of ingress and egress at
Charter facilities since September 15, 2017. Tr. of
Proceedings. of 10/23/17, at 3, 14; Tr. 397. Charter's
attorney acknowledged that his application for injunctive
relief was limited to "unlawful picketing and the
threats and the damage to property." Tr. 450. At the
outset of the hearing, counsel for Local 3 stipulated that
the union had "engaged in picketing activity at many [ ]
Charter locations." Tr., at 24.
Van Arsdale, Assistant Business Manager for Local 3, was
called as a witness for Charter. He testified that he had
engaged in collective bargaining with Charter and its
predecessor corporation, Time Warner Cable. Tr., at 16-17,
19. Van Arsdale identified a sign used by Local 3 pickets
during the current strike (Tr., at 26; Ex. 2) and represented
that every Local 3 picket line was to have a picket captain
or shop steward from the union present. Tr., at 36. The
picket captains and shop stewards were instructed to monitor
picket lines and observe whether entrances and exits to
Charter facilities were being blocked. Tr., at 37-38.
also called its employees Justin Finnerty, Michael Buck,
Michael Baird, Ken Urban, Tom Ellis, Dennis Schuler, Lester
Mahon, Dennis Falls, Anthony Rodriguez, and Nigel Wilkie as
hearing testimony established that, on multiple occasions,
Local 3 picketers interfered with the ingress and/or egress
of Charter vehicles or vehicles of its employees to and from
Charter facilities, or interfered with the work of Charter
Michael Baird, a supervisor at Charter's Staten Island
facility, said that, on September 15, 2017, over 100
picketers carrying Local 3 signs and wearing Local 3 hats and
shirts blocked vehicles at Charter's facility in Staten
Island. Tr. 143-145. Although police arrived at about 7 a.m.,
they left soon thereafter. Tr. 145. Picketers chased and
surrounded one technician's truck, screaming at the
driver and folding in the vehicle's mirrors. Tr. 146. The
police returned after 8 a.m., directed Local 3 member Billy
Silverglad to stop using a bullhorn, and then left after a
few minutes. Tr. 148-149. When the police left, blocking of
the ingress and egress of cars from the Charter lot
continued. Tr. 149. Sometime after 10:45 a.m., Baird, who had
left the facility earlier that morning, returned to the site
and 10-15 picketers surrounded him for about 6-7 minutes. Tr.
150. After he parked, he noticed that two "scab"
stickers had been placed on his truck. Tr. 152.
September 17, 2017, Anthony Rodriguez, a Charter supervisor
working out of its College Point, Queens facility, received a
call from Ronald Johnson, another supervisor at College
Point, asking for assistance on a job in Electchester, where
Local 3's headquarters were located. Tr. 327-330. Johnson
asked Rodriguez to sit in his truck while he did a job. Tr.
330, 333. While Rodriguez waited for Johnson, another Charter
supervisor, Kenny Espinosa, drove by and, while Rodriguez and
Espinosa were talking, three men, wearing Local 3 gear and
carrying a Local 3 sign, started shouting at them, calling
them "scabs". Tr. 333-335. The three men began
banging on the Charter trucks and threatening to kill the
families of Rodriguez and Espinosa. Tr. 336. They would not
allow Rodriguez to leave his car and prevented him from
driving away by blocking his vehicle. Tr. 337. Rodriguez
called the police but they did not respond. Tr. 336-338. He
exited his car and asked the men to let him leave but they
told him "[g]et back in the car you [expletive]."
Tr. 339. After his second call to the police, they responded,
moved the men aside, and Rodriguez was able to leave. Tr.
339-340. He had been blocked for approximately one hour. Tr.
September 18, 2017, 25-30 picketers appeared at Charter's
Staten Island facility and impeded the flow of traffic into
and out of the premises. Tr. 155-156.
September 21, 2017, Justin Finnerty, a manager at
Charter's Staten Island facility, saw picketers, who were
carrying Local 3 signs and wearing Local 3 clothing, blocking
exiting and entering traffic at that location. Tr. 74-81.
Michael Buck, a supervisor at the facility, estimated that it
took approximately 45 minutes for Charter's service
vehicles to leave the facility that day, whereas it usually
took about 10 minutes. Tr. 80-81; 123-127.
September 22, 2017, Nigel Wilkie, a manager at Charter's
Woodside facility, saw approximately 30 picketers, who were
wearing Local 3 hats and shirts and carrying Local 3 picket
signs, blocking ingress and egress at that location. Tr. 346,
348-350. The picketers blocked the entrance of workers'
cars into the parking lot at the facility. Tr. 350. They also
placed a plastic drum in the middle of the exit of the
parking lot, preventing vehicles from leaving the facility.
Tr. 351; 353-354; 360. Although it usually took Charter
trucks between 5 and 20 minutes to exit the facility, it took
over 1 ½ hours that day. Tr. 362. Although the police
had to be called three times before they arrived, they
successfully assisted in the process allowing the Charter
trucks to exit the facility. Tr. 367.
September 25, 2017, picketers wearing Local 3 paraphernalia
blocked cars entering Charter's facility in Staten
Island. Tr. 81-91. For approximately one hour, cars were
unable to move. Tr. 93. When Finnerty urged the Charter
drivers to be patient, Silverglad chest bumped him and cursed
at him. Tr. At 90-92. The police were called twice and
appeared after the second phone call, at which time the
blocked vehicles were able to enter Charter's parking
lot. Tr. 88-89, 92-93.
September 25, 2017, a Charter technician named Markel Kuis
was followed to his first job of the day by Scott Toder, a
striking employee, as he drove across Staten Island. Tr.
128-130. Kuis' supervisor, Buck, met Kuis at the location
where Kuis was to make his first service call of the day. Tr.
130-131. Before Kuis arrived, Buck saw Toder on the phone
telling others to come to his location. Tr. 131-132. Buck
called the police and, after the police explained to him that
strikers were permitted to picket, Buck told the police that
they did not need to stay at the site. Tr. 133.
After Kuis arrived at the job site, about 15-20 picketers
arrived. Tr. 134. The picketers bent the mirrors on Kuis'
truck, sprayed the truck with purple liquid, and put a
sticker on his truck which said "scab." Tr. 134.
They also bent the license plate on Buck's truck and
affixed a sticker to it saying "slut." Tr. 134-136.
September 27, 2017, Local 3 picketers appeared at
Charter's facility in Sunset Park, Brooklyn and blocked
Charter vehicles attempting to leave the facility for a shift
commencing at 11 a.m. Tr. 219-220. Picketers also blocked
Charter vehicles at a nearby intersection, surrounding the
vehicles and screaming at the Charter employees therein. Tr.
224. While Dennis Schuler, Charter's Director of Field
Engineering for Brooklyn and Queens, attempted to assist the
employees in the surrounded trucks, Silverglad pushed a
Charter supervisor. Tr. 210-211; 226-227. One of the
picketers present was Pradeep Ramohlom, also known as Jimmy,
who was a shop steward at the Sunset Park facility. Tr.
228-229. The picketers delayed Charter vehicles by
approximately 20 minutes that day. Tr. 247.
September 28, 2017, Dennis Falls, a supervisor at
Charter's College Point, Queens facility, along with
other Charter employees, had to terminate a service call near
Electchester because they were repeatedly accosted by a
striker in Local 3 dress who screamed profanities, kicked
their equipment, and refused a customer's demand that he
(the Local 3 member) leave her property.  Tr. 284-285;
recalled that, for over one hour on October 2, 2017,
picketers attempted to block the exits to the Sunset Park
facility and kicked over safety cones and tape placed by
Charter management in an attempt to clear a path for exiting
vehicles. Tr. 232-235. Although the police arrived and
assisted in allowing the Charter vehicles to leave the
facility, the departure of the vehicles was delayed by over
three hours. Tr. 236-240.
October 5, 2017, Baird learned that picketers were blocking
traffic at the Staten Island facility and was able to watch
the picketers in real time with an app on his phone. Tr.
157-163; Exs. 15-18. Video of the picketers showed that they
stood directly ...