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Charter Communications, Inc. v. Local Union No. 3, International Brotherhood of Electrical Workers

Supreme Court, New York County

December 21, 2017

Charter Communications, Inc., Plaintiff,
v.
Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, 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), Defendants.

          Kenneth A. Margolis, Esq. Daniel Kirschbaum, Esq. G. Peter Clark, Esq. Kauff McGuire & Margolis LLP Attorneys for Plaintiff

          John H. Byington III, Esq. Archer, Byington, Glennon & Levine LLP Attorneys for Defendants

          KATHRYN E. FREED, J.S.C.

         The 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 ORDR.

         Upon the foregoing documents, and after a hearing, the application is denied.

         In this 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.

         FACTUAL AND PROCEDURAL BACKGROUND:

         Charter, 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. [1] 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.

         Charter 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 par. 58.

         Charter 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.

         On 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. Id.

         The Hearing

         This 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.

         Lance 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.

         Charter 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 witnesses.

         The 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 employees:

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.

         On 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. 340.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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. [2] 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.

         On 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.

         On 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. [3] Tr. 284-285; 289-295.

         Schuler 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.

         On 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 ...


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