Amalgamated Transit Union, Local 1202, AFL-CIO, CLC v. Greyhound Lines, Inc. (GLI)
| Decision Date | 11 May 1990 |
| Docket Number | AFL-CI,CLC |
| Citation | 157 A.D.2d 167,555 N.Y.S.2d 117 |
| Parties | , 134 L.R.R.M. (BNA) 3027, 116 Lab.Cas. P 56,323 AMALGAMATED TRANSIT UNION, LOCAL 1202,; Harold Mendlowitz, President, Amalgamated Transit Union, Local 1202,; Nicholas Whitaker, Striking Worker; and John Doe, Jane Doe, Striking Workers, Plaintiffs-Respondents, v. GREYHOUND LINES, INC. (GLI); David Batchlor, President of Eastern Greyhound Lines, Inc.; and Tim C. Lenihan, Director of Operations, (GLI), Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Bettina B. Plevan, of counsel (Proskauer Rose Goetz & Mendelsohn, New York City, and Johnson & Gibbs, attorneys) for defendants-appellants.
Ronald L. Kuby, of counsel (William M. Kunstler, New York City, attorney) for plaintiffs-respondents.
Before KUPFERMAN, J.P., and ROSS, ELLERIN, WALLACH and SMITH, JJ.
Supreme Court (Diane A. Lebedeff, J.) by order entered April 13, 1990, has issued a preliminary injunction enjoining Greyhound Lines, Inc. from (1) employing persons in New York City to replace defendant's striking employees, (2) transporting such persons to the City of New York to replace the strikers, and (3) directing the plaintiffs to post $100 bond. Since the order lacks any jurisdictional basis, we now stay it and suspend its effect with directions for an expedited appeal. Because of the public importance of the issue and the close division of the court, we are obliged to set forth our views at some greater length than a pre-appeal motion ordinarily requires.
This injunction purports to rest on Section 22-502 of the New York City Administrative Code which makes it unlawful and a misdemeanor, punishable by a fine for each violation, 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. There are, apparently, only two reported cases under this local law--both were unsuccessful Criminal Court prosecutions (People v. Eastern Airlines, Inc., 38 Misc.2d 1042, 237 N.Y.S.2d 235; In re Bahr, Inc. v. New York Telephone, 69 Misc.2d 138, 329 N.Y.S.2d 501). No persuasive authority is cited to us to sustain the proposition that this enactment, of strictly limited territorial application, could properly create a private right of action pervasive throughout the state, which might be the case where a penal statute emanating from the legislature is involved (cf. Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 543 N.Y.S.2d 18, 541 N.E.2d 18). But in view of the clear provisions of the Labor Law, we may defer determination of this question until consideration of the appeal.
Labor Law Section 807 (Article 22-A--Injunctions in Labor Disputes) provides that "No court nor any judge or judges thereof shall have jurisdiction to issue any restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute, as hereinafter defined, except after a hearing, and except after findings of all the following facts by the court or judge or judges thereof to be filed in the record of the case:" (Underscoring added) (e.g., a finding of irreparable injury, breach of the peace, etc.).
At the "hearing" conducted by Judge Lebedeff prior to the issuance of the order appealed from, she heard extensive speeches by counsel for the parties and received hearsay affidavits pertaining to the arrest of an individual hired by Greyhound as a driver who left his bus and allegedly threatened a striker with a knife at the Port Authority building. (It appears that this person was released by Criminal Court in his own recognizance based on a claim of self-defense.) Judge Lebedeff apparently considered the sworn complaint of the arresting officer and affidavits describing his conduct. Based upon the foregoing, Judge Lebedeff made oral findings on the record that the Administrative Code had been violated and entered an order enjoining Greyhound tracking the language of the local law.
However, by reason of the mandatory requirements of the Labor Law, the court was without jurisdiction to issue its injunctive order. This is because Labor Law Section 807(2) requires a verified complaint (absent here), and with respect to the hearing:
"The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination and testimony in opposition thereto, if offered, and no affidavits shall be received in support of any of the allegations of the complaint." (Underscoring added)
Kay-Fries, Inc. v. Martino, 73 A.D.2d 342, 426 N.Y.S.2d 304, app. dism. 50 N.Y.2d 1056, 431 N.Y.S.2d 817, 410 N.E.2d 750, cited by the dissent, furnishes no support for the hearing court's jurisdiction here. While in Kay-Fries the absence of the judicial findings required by the Labor Law was held to be a non-jurisdictional defect, the Kay-Fries order followed a testimonial hearing (see p. 346), the absence of which is jurisdictional under the plain language of the statute.
In addition, there are serious questions presented as to whether Federal law has fully preempted State action. As the U.S. Supreme Court held in San Diego Unions v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 3 L.Ed.2d 775, quoted by us with approval in Jou-Jou, Inc. v. ILGWU Local 23-25, 94 A.D.2d 395, 403, 465 N.Y.S.2d 163, aff'd 60 N.Y.2d 1011, 471 N.Y.S.2d 568, 459 N.E.2d 861:
"When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair...
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