Thanks to Bill Herbert (Deputy Chair and Counsel to the New York PERB) for letting us know about a recent New York Court of Appeals ruling concerning whether a nuisance suit under New York law was preempted by the NLRA.  Readers will recall that Prof. Hirsch and I debated the relationship between the NLRA and state laws in our recent on-line debate in PENNumbra and it is a topic I recently wrote on separately in the captive audience meeting context.

In this case, Helmsley-Spear, Inc. v. Fishman, 08-164 (Nov. 24, 2008), the New York Court of Appeals (the state’s highest court) found in a 4-2 decision (one Justice not participating) that the plaintiffs’ private nuisance cause of action was not preempted by the National Labor Relations Act (NLRA).  More specifically, the court found that:

[E]ven if one were to assume that the drumming [outside of the building by the union] constituted arguably “protected” conduct under the NLRA, as the Union argues and the Appellate Division implied, it does not necessarily follow that our state courts are foreclosed from adjudicating plaintiffs’ claim. This point was made clear in Sears, Roebuck & Co., where the United States Supreme Court held that a state trespass claim lodged by an employer against picketers — challenging the location of the picketing as opposed to the picketing itself — was not preempted by the NLRA even though trespass was arguably protected under the Act (436 US at 198-204) . . . .

Balancing the state interest in adjudicating private nuisance claims against the interference with the NLRB’s ability to determine matters committed to it by the NLRA and the risk that state courts will prohibit conduct otherwise protected by the Act, we conclude that Congress did not intend to preempt the jurisdiction of state courts to adjudicate the tortious conduct alleged here.

Sounds like a proper application of Garmon preemption. The Court also found Machinists preemption unavailing because “[l]oud drumming is not an ‘integral part of the legislative scheme’ [like walk-outs and lock outs] of the NLRA.”

I would, of course, be interested in hearing my Brother Hirsch’s thoughts on this decision.

Cross posted at Workplace Prof Blog.