State v. Local 1115 Joint Bd., Nursing Home and Hospital Emp. Division

Decision Date14 March 1977
Citation56 A.D.2d 310,392 N.Y.S.2d 884
Parties, 95 L.R.R.M. (BNA) 2337, 82 Lab.Cas. P 55,099 STATE of New York, Respondent, v. LOCAL 1115 JOINT BOARD, NURSING HOME AND HOSPITAL EMPLOYEES DIVISION, et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Charles R. Katz, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen., New York City (Daniel M. Cohen and Samuel A. Hirshowitz, New York City, of counsel), for respondent.


HOPKINS, Acting Presiding Justice.

The Special Term granted a preliminary injunction, upon application of the Attorney-General on behalf of the State of New York, enjoining the defendants from engaging in a strike and related activities against the members of the Nassau County Health Facilities Association (Nassau) and other designated nursing homes, and, at the same time, it denied the defendants' cross motion to vacate a temporary restraining order and to dismiss the complaint. The defendant Local is a labor union and bargaining agent for the employees of the operators of nursing homes and health facilities which are members of Nassau. 1 The Local and Nassau have entered into a labor agreement governing employment conditions for the employees of the members of Nassau.

Nassau was threatened by the Local with a strike of the employees, engendered by the refusal of the members of Nassau to pay a cost of living adjustment and an increase in wages and contributions to the Welfare Fund stipulated by the agreement. Acting under instructions from the State Commissioner of Health, the Attorney-General instituted this action to prevent the strike and, simultaneously, moved for a preliminary injunction for the same relief. The Local cross-moved, Inter alia, to dismiss the complaint.

The Special Term granted the preliminary injunction and denied the cross motion. The Local appeals from the order, contending (1) that state courts are preempted by Federal law from exercising any jurisdiction in the field of labor relations within health care facilities and (2) that, in any event, the Special Term should not have interfered with the relations between the parties.

We affirm the order of Special Term. The state courts are not preempted from granting equitable relief to prevent the strike, since a demonstrable hazard to a significant number of the community existed, under the circumstances shown by this record.


Nassau is the collective bargaining agent for its members, which are operators of nursing homes in Nassau and Suffolk Counties. Together with the individual nursing homes described in the order appealed from, these operators serve more than 3,000 patients within their facilities. The Local is the collective bargaining agent for the employees of the members of Nassau and the individual nursing homes.

The Local and Nassau executed a bargaining agreement dated January 9, 1975, to be effective for four years beginning January 1, 1975. The agreement contained a broad arbitration clause, stating that '(a)ll complaints, disputes or grievances whatsoever of whatever kind or nature arising between the Union and the Employer concerning any provision of the contract, or with respect to any other acts, conduct or relations or terms or conditions of employment of whatsoever nature or otherwise, between the parties, directly or indirectly, shall be submitted for arbitration'. Moreover, the agreement prescribed that '(d)uring the term of this agreement, the Union shall not call or authorize any strike against the Employer at the establishment covered by this Agreement and the Employer shall not effect any lockouts.'

The agreement provided for a wage increase of $9 per week, as of January 1, 1976, and for an increase in the monthly contribution by Nassau to the Local's Welfare Fund, which provides benefits to the employees, including specified health insurance. In the event of the failure of Nassau to make the contribution to the Welfare Fund required under the agreement, it was provided that the Local should have the right to strike.

On or about December 16, 1975 Nassau wrote to the Local that its members had voted not to pay the wage increase or the increase in the contribution to the Welfare Fund. That decision, Nassau said, was 'prompted by the freeze in the Medicaid rate which makes it impossible for the homes and health related facilities covered by the Agreement to pay the wage increases and other benefits provided in the collective bargaining agreement.' Although this is not entirely clear from the record before us, Nassau's conclusion that medicaid rates could not be raised was apparently based upon amendments to the Rules and Regulations promulgated by the State Commissioner of Health prohibiting rate revisions arising from labor negotiations after November, 1975.

The response of the Local to the refusal by Nassau to pay the increase was to call a strike of the employees to begin January 21, 1976. In addition the Local filed charges of unfair labor practices against Nassau with the regional office of the National Labor Relations Board pursuant to the 1974 amendments to the National Labor Relations Act (U.S.Code, tit. 29, § 158, subds. (d), (g)). At the time the order under review was issued, no disposition of these charges had been made.

No request for arbitration of the dispute was made by either Nassau or the Local. Before the date set for the strike, the State Commissioner of Health served an order directing the Local not to engage in a strike against Nassau on the grounds that more than 3,000 patients were receiving care within the health facilities; that many of them were 'sickly and gravely ill and in need of constant attention'; that there were not sufficient facilities to which the patients might be transferred; that there were no other persons sufficient in number, other than the members of the Local, to care for the patients; and that the safety and lives of the patients would, accordingly, be adversely affected. The State Commissioner also requested the Attorney-General to apply for injunctive relief pursuant to section 12 (subd. 5) of the Public Health Law, stating that compliance by the Local with the order was not expected and that such an application was necessary in order 'to prevent immediate and irreparable injury to patients in the event of non-compliance.'

The Attorney-General then instituted this action for an injunction against the strike and, at the same time, moved for a preliminary injunction at Special Term. The Local resisted the application and cross-moved, Inter alia, to dismiss the complaint. In its opposing papers it recited the breach of the bargaining agreement by Nassau and it contended that the State was preempted from acting in the labor dispute by the provisions of the National Labor Relations Act.

The Special Term granted the application for a preliminary injunction against the strike, though it denied any restraint on peaceful picketing, and denied the Local's cross motion to dismiss the complaint. Finding that the State Constitution (N.Y.Const., art. XVII, § 3) mandated that the protection of the health of its inhabitants was a matter of public concern, and that the Attorney-General was authorized to bring the action, Special Term held that a denial of the relief sought 'would cause tremendous suffering to the thousands of residents of the nursing homes and would disrupt the entire system.'


On this appeal the Local urges that Special Term was without jurisdiction, under the doctrine of preemption, and that the order granting the preliminary injunction was improvidently issued, since no enjoinable labor dispute existed.

The Attorney-General, in reply, argues that Special Term properly restrained the Local from striking, because of the circumstances under which the health and safety of the elderly and chronically ill were gravely threatened. In effect, the Attorney-General urges that the State is not preempted by the provisions of the National Labor Relations Act where the lives are health of the patients in the health facilities are in immediate danger.


The doctrine of preemption stems from the Supremacy Clause in the Federal Constitution (U.S.Const., art. VI). The states may concurrently regulate areas affected by Federal law under the Commerce Clause, if the state regulation is not incompatible with the Federal regulation (see, e.g., International Union, U.A.W.A. v. Wisconsin Employment Relations Board, 336 U.S. 245, 254, 69 S.Ct. 516, 93 L.Ed. 651; United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; Taggart v. Weinacker's, Inc., 397 U.S. 223, 227, 90 S.Ct. 876, 25 L.Ed.2d 240). Under this analysis, the question relates to the manner in which Congress has acted and whether the action of Congress necessarily precludes the states from a form of regulation (Northern States Power Co. v. Minnesota, 8 Cir., 447 F.2d 1143, 1146, affd. 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576).

Hence, we must address the Federal legislation to which the Local points as the basis of preemption against state action. Not until 1967 did the National Albor Relations Board (the Board) take jurisdiction over profit-making health care institutions (Butte Med. Props., 168 NLRB 266; University Nursing Home, 168 NLRB 263). That assumption of jurisdiction was predicated upon the general power of the Board over businesses having a material effect on interstate commerce.

In 1974 Congress legislated directly in the filed of labor disputes within the health care industry by enlarging the definition of health care institutions and by regulating the notice to be given by a labor union prior to a strike and the notice of a labor dispute to be given to the Federal Mediation and Conciliation Service (U.S.Code, tit. 29, § 158, subds. (d), (g)). Following the enactment of the legislation, the Board adopted the position...

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