AFA Protective Systems v. Local Union No. 3, Intern. Broth. of Electrical Workers
| Decision Date | 10 August 1972 |
| Citation | 337 N.Y.S.2d 599,71 Misc.2d 823 |
| Parties | , 81 L.R.R.M. (BNA) 2038, 69 Lab.Cas. P 12,967 AFA PROTECTIVE SYSTEMS, Plaintiff, v. LOCAL UNION NO. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant. |
| Court | New York Supreme Court |
Warshaw, Sylvester, Burstein, Franks & Lebow, New York City (Harold Rosenwald, Boston, Mass. and Thomas J. Malmud, New York City, of counsel), for plaintiff.
Harold Stern and Norman Rothfeld, New York City, for defendant.
This is an action seeking a permanent injunction and damages by reason of acts alleged to have been committed by defendant, its agents, officers, members and persons acting in concert with it. The claim for damages was withdrawn at the close of plaintiff's case upon the ground that it could not be established that defendant was responsible therefor.
Plaintiff (AFA) is a domestic corporation engaged in installing and servicing fire and burglary alarm systems. For a number of years prior to February 7, 1972 AFA and the defendant union had been in collective agreement. The last such agreement had been entered into on February 7, 1969 and covered the employees in the unit defined in that agreement. Under its terms, the agreement was terminable on any anniversary date on or after February 7, 1972, provided that either party gave at least 90 days' written notice to the other of an intent to terminate. It is undisputed that such notice was given to AFA by the union.
Thereafter, on December 21, 1971, the parties met in their first bargaining session looking to a new labor agreement. At the meeting the union submitted its list of demands. Between December 21, 1971 and January 21, 1972, the parties met on five separate occasions. Apparently the negotiations never moved off center, for AFA offered only one of two alternatives--either a one year renewal with no changes or a three year agreement with unspecified economic improvements during the second and third years. Actually, the offer of a one year renewal with no changes contemplated a potential downgrading of then existing economic benefits for it included a proviso that any increase in the cost of hospital and medical insurance was to be borne by the employees.
Inasmuch as the five sessions between the parties had left them locked in precisely the same positions from which they had started, the union sought and obtained the intervention of the State Mediation Board. Mediation meetings were held on January 31, 1972 and February 3, 1972. Movement was minimal and a further mediation session was scheduled for February 4. On the morning of February 4, approximately 90 employees on the day shift called in sick. These employees were discharged immediately. Thereupon the AFA representatives refused to participate in the scheduled mediation session. Later that day, when it became apparent that the second shift had reported for work, AFA consented to a mediation session on February 5. Although there was some slight movement in the position of the parties on that day, no agreement was reached. No mediation session was held on the 6, a Sunday, and at 12:01 A.M. on February 7 the union struck.
It is against this background that the incidents giving rise to this action occurred. These incidents fall into three categories. The first involved the picketing of plaintiff's place of business. The second is concerned with individual acts allegedly directed against specific nonstriking employees. The final category involves two sit-ins claimed to have been conducted by members of the union.
At the very outset the union moved to dismiss the complaint for lack of jurisdiction. It is conceded that AFA is engaged in interstate commerce. Indeed, at the time of the trial of this action each of the parties had charged the other with unfair labor practices before the National Labor Relations Board. In Peltzman v. American Radio Assn., 69 Misc.2d 17, 327 N.Y.S.2d 505, I had occasion to collate and review the authorities governing the doctrine of federalism in labor relations. I there pointed out that when a controversy falls, arguably, under the broad umbrella of either Section 7 or 8 of the National Labor Relations Act, as amended (U.S.Code, tit. 29, §§ 157 and 158) state courts are divested of jurisdiction unless the conduct complained of imperils the public peace or the Labor Relations Act expressly confers jurisdiction upon the state courts, as it does under section 14(b) of the Act (U.S.Code, tit. 29 § 164(b)). Accordingly, it is in the context of the law, as thus interpreted, that the incidents complained of must be judged.
The picketing by the union of the building where AFA has its place of business was conducted by a line consisting of from one to thirty people. It has been under the supervision of the police and according to police testimony, has been orderly. Except when police manpower needs required otherwise, one officer was assigned during the 8 to 4 shift and two the 4 to midnight shift. Only one complaint was received by the police with respect to the picketing. That came from a shopkeeper who operated a store in the same building as AFA maintained its offices. His complaint was predicated upon the claim that the line overflowed in front of his store. As a result, the line was compacted so that there was no potential interference with the shopkeeper's business.
Certainly, this conduct was not of such a nature as to itself spell out activity which removes this case from the ambit of the doctrine of federal preemption (Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 638; San Diego Bldg. Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618; San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775). Thus, cases like International Broth. of Teamsters Local 695 v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347; Hughes v. Superior Court, 339 U.S. 46o, 70 S.Ct. 718, 94 L.Ed. 985; Int. Broth. of Teamsters, etc. v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995 and Bldg. Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045, which substantially emasculate Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 have no application.
The second category of incidents involves individual claims of harassment. Bruce Thomason, the son of the president of AFA and an employee of one of its subsidiaries who had been assigned to do repair work for AFA during the course of the strike, testified that on February 8, 1972 he had been cuffed around by two persons, one of whom he identified as a striker. Subsequently, he made complaint to the police but refused to charge the identified striker with any penal violation. In connection with this incident it is important only to take note of the testimony of the corroborating witness. He testified, in great detail, that the striker who is claimed to have participated in pushing Thomason around 'drew out a hunting knife and put it against the underside of Bruce's throat in a harassing manner.' He went on to describe the knife as having 'a blade five or six inches long with a shark's-tooth type blade' and having 'a very fancy handguard on it and a black handle.' In light of Thomason's statement that he never saw any weapon and made no mention of a weapon in his complaint to the police, the corroborating testimony is entitled to no credence.
The second individual claim involves two female employees of AFA who testified that on March 29 eggs were thrown at them by a striker who was a member of the union's negotiating committee. Charges of harassment were filed in the Criminal Court against the striker. That case resulted in a dismissal of the charges.
On April 13 there were three separate incidents. In one, some unknown person is alleged to have kicked at a puddle in the street, splattering an executive of AFA with water. In the second, two clerical workers are claimed to have been pushed as they proceeded through the lobby of the building. The final incident was a claim by a non-striker that he was 'harassed' by an unknown person.
The next incident occurred on May 1, and involved a charge of harassment by a non-striker against one John Vogt, a member of the union. It is contended that criminal charges were filed against Vogt but that no endeavor was ever made by the police to apprehend him despite his availability. The culminating incident occurred the following day and involved a claim of harassment by one who had been employed as one of the replacements for the striking workers.
These seven complaints comprise the sum total of the specific claims of violence attributable to the strike. One resulted in a criminal charge which was dismissed. At least one other complainant refused to press charges. In the remaining instances, except one, there is no proof that anyone connected with the union bore any responsibility. That one exception seems to defy understanding.
Even if complete credence were given to AFA's presentation of these claims--and it is obvious that they have been puffed all out of proportion for the purposes of this action--they represent no more than the normal give and take in a situation charged with emotion. In a somewhat similar situation it was held that ...
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National Union of Hosp. and Health Care Emp., Dist. 1199E v. Lafayette Square Nursing Center, Inc.
...161 Conn. 79, 285 A.2d 330 (1971) (Acts of violence occurring at locations away from strike scene); and, AFA Protection Systems v. Local 3, IBEW, 71 Misc.2d 823, 337 N.Y.S.2d 599 (1972) (The New York Anti-Injunction Statute is not as broad as Maryland's and the acts of violence took place o......