Amalgamated Transit Union, Local 1202 AFL-CIO, CLC v. Greyhound Lines, Inc., (GLI), AFL-CI
| Decision Date | 19 September 1990 |
| Docket Number | CLC,AFL-CI |
| Citation | 561 N.Y.S.2d 118,148 Misc.2d 601 |
| Parties | , 119 Lab.Cas. P 10,812 AMALGAMATED TRANSIT UNION, LOCAL 1202; Harold Mendlowitz, President, Amalgamated Transit Union, Local 1202,; Nicholas Whittaker, Striking Worker; and John Doe, Jane Doe, Striking Workers, Plaintiffs, v. GREYHOUND LINES, INC., (GLI); David Batchlor, President of Eastern Greyhound Lines, Inc.; and Tim C. Lenihan, Director of Operations, (GLI), Defendants. .A.S. Part 8 |
| Court | New York Supreme Court |
William A. Kunstler, New York City, for plaintiffs.
K. Christopher Todd, Johnston & Gibbs, Washington, D.C., Bettina B. Plevan, Proskauer Rose Goetz & Mendelsohn, New York City, for defendants.
Plaintiffs move for a temporary injunction under a local law which regulates hiring of "strikebreakers" as defined under that local law. Defendants ("Greyhound") cross-move for dismissal of the amended complaint pursuant to CPLR 3211[a][7].
Greyhound Lines, one of the largest bus lines in the nation, operates in New York City and in thousands of localities from coast to coast. The Amalgamated Transit Union, Local 1202, represents Greyhound bus drivers in New York City. A strike of drivers began on March 2, 1990, after a collective bargaining agreement expired. Both the local and national press have reported serious acts of violence against strikers and replacement drivers, as well as unusual accidents caused by replacement drivers whom plaintiffs claim are inadequately trained.
The complaint seeks civil enforcement of a penal statute and asks that the court enjoin Greyhound's claimed violation of a New York City ordinance, specifically Administrative Code of the City of New York § 22-502 (formerly § 900-2.0). That enactment hinges upon the term "strikebreaker," which is defined in Administrative Code § 22-501[a][6] as follows:
Administrative Code § 22-502 provides:
" § 22-502 Unlawful conduct.
a. It shall be unlawful in the city of New York for any employer wilfully and knowingly to employ any strikebreaker to replace employees who are either on strike against or locked out by such employer.
b. It shall be unlawful within the city of New York for any person, firm or corporation not directly involved in a strike or lockout to recruit any person or persons for employment or to secure or offer to secure for a person or persons any employment when the purpose of such recruiting, securing or offering to secure employment is to have such person take the place in employment of employees in an industry or establishment where a strike or lockout exists, provided that this section shall not apply to any employment agency duly licensed in the city of New York or any nurses registry and provided that such employment is in the regular course of business of such employment agency or nurses registry.
c. It shall be unlawful for any person, firm or corporation including such duly licensed employment agency to transport or arrange to transport to the city of New York any person or persons for employment for the purpose of having such person take the place in employment of employees in an industry or establishment where a strike or lockout exists.
d. Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine or [sic] not more than one thousand dollars or to suffer imprisonment for a term not exceeding one year, or both."
The amended complaint sets forth two causes of action under subdivisions [a] and [c].
Greyhound has maintained, both in this suit and to the public at large, that it was not hiring strikebreakers but permanent replacement workers. That position is relevant to the application of this local law, as has been recognized in the criminal context (see People v. Eastern Air Lines, Inc., 38 Misc.2d 1042, 237 N.Y.S.2d 235, and In re Bahr, Inc. v. New York Telephone, 69 Misc.2d 138, 329 N.Y.S.2d 501).
As a primary basis for the cross-motion to dismiss, Greyhound urges that the ordinance directly covers a labor-management question which is under the ambit of the National Labor Relations Act (29 U.S.C. § 151, et seq.), that the N.L.R.A. pre-empts the field, and that this local attempt to regulate the hiring of workers to replace striking employees violates the Supremacy clause of the U.S. Constitution. Greyhound also maintains that the provision does not create a private right of action and is unconstitutionally vague.
To weigh the argument that the subject of the local legislation is pre-empted, this court must consider the rationale for pre-emption arguments, analyze the scope of the federal legislation, and compare the federal and local regulation. While there is no pre-emption where the local regulation does not interfere with a federal regulatory scheme (Farmer v. United Brotherhood, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338), pre-emption must be considered where there is concern that one forum enjoins as illegal a type of conduct lawful in the federal forum or that a state court would restrict rights guaranteed under federal law (International United Automobile, Aircraft & Agricultural Implement Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030).
In the labor area, Congress has not given specific directions on the scope of pre-emption. For that reason, there is no blanket pre-emption of every local regulation which touches the complex relationship between employers, employees and unions (Farmer v. United Brotherhood, supra ). Courts have the guidance of two National Labor Relations Act provisions, specifically Section 7, which guarantees the rights of collective bargaining and of concerted activity for that purpose, and Section 8, which defines unfair labor practices. If the subject of the local legislation clearly falls under either Section 7 or 8, the local law is pre-empted (see Garner v. Teamsters Local 1776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, see also U.S.A. Chamber of Commerce v. State of New Jersey, 89 N.J. 131, 445 A.2d 353). If the area covered by the local ordinance is arguably under either Section, pre-emption applies (San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775).
Additionally, there are areas which Congress has chosen to leave free of regulation upon which localities may not impose requirements. Congress intended certain self-help remedies to be available to combatants in labor disputes or to be subject to the free play of economic forces. For example, in Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396, it was held that a state could not prohibit union workers from refusing to work overtime as an unfair labor practice because the concerted refusal was a peaceful economic weapon permitted under federal law. That holding was an extension of Teamsters Local No. 20 v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280, which invalidated a local effort to limit secondary activity of unions lawful under federal rules.
Local regulations which survive pre-emption claims follow two common patterns. The first involves issues tangential to a labor dispute, such as the availability of classic state law causes of action to a plaintiff (see, for example, 15 McKay Place v. AFL-CIO Services Employees International, 576 F.Supp. 1423 [E.D.N.Y.], [claim for lost wages], and American Broadcasting Co. v. Brandt, 56 Misc.2d 198, 287 N.Y.S.2d 719 []).
The second pattern involves labor activity but the local regulation impacts on a concern peripheral to the federal law and touches interests deeply rooted in local feeling and responsibility (Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798). These instances often consider violence, threats of violence or picketing (see Garner, Central Storage Co. v. Teamsters, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, and Barclay's Ice Cream Co. v. Local No. 757, 41 N.Y.2d 269, 392 N.Y.S.2d 278, 360 N.E.2d 956 []).
Turning to the strikebreaker provision, it must be recognized that the hiring of workers to replace strikers is lawful under federal law (N.L.R.B. v. Mackay Radio & Tel. Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381; TWA v. Independent Federation of Flight Attendants, 489 U.S. 426, 109 S.Ct. 1225, 103 L.Ed.2d 456). Viewing the complaint in the context of the framework of...
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