Opinion
11964/11.
Decided May 27, 2011.
Levy Ratner, P.C., By: Daniel J. Ratner, Esq., and David Slutsky, Esq., New York, New York, Attorneys for Defendants.
Jackson Lewis, LLP., By: Steven S. Goodman, Esq., and Steven M. Berlin, Esq., Melville, New York, Attorneys for Plaintiff.
The following papers numbered 1 to read on this motion:
Papers Numbered 1-2, 3 Memoranda of Law 4, 5
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed Opposing Affidavits (Affirmations) Reply Affidavits (Affirmations) Affidavit (Affirmation) Other PapersUpon the foregoing papers, and after a hearing and oral argument held on the record before the court on May 26, 2011, plaintiff Brookdale University Hospital and Medical Center (Brookdale or the Hospital) moves, pursuant to Labor Law § 807 and CPLR 6301, for an order preliminarily and permanently enjoining defendants (1199 or the Union) and their respective officers, members, agents, representatives, employees, organizers, associates, and persons acting in concert with defendants from:
The court notes that, under Labor Law § 807 (8), "[n]o permanent injunction shall remain in force for more than six months from the date on which the judgment is signed."
-Causing mass congregating, patrolling and picketing in the main lobby inside the main entrance to Brookdale Hospital, thereby restraining, intimidating, coercing and preventing Brookdale's employees, patients and their family members and visitors, officers, agents, members, representatives, associates, contractors, invitees, guests and other persons having lawful business therein from gaining free access to and leaving the Hospital;
-Threatening, coercing, frightening and intimidating Brookdale's employees, patients and their family members and visitors, officers, agents, members, representatives, associates, contractors, invitees and guests and other persons having lawful business at Brookdale;
-Uttering abusive, indecent, foul, and vituperative epithets and threats to persons entering or leaving Brookdale in an effort to disrupt the peace;
-Attempting to coerce and intimidate Brookdale's employees, patients, their family members and visitors, officers, agents, members, representatives, associates, contractors, invitees and guests into discontinuing their relationship, or to coerce and intimidate them from commencing a business relationship with Brookdale by uttering threats and abusive, indecent, foul and vituperative epithets; through their overwhelmingly large numbers of demonstrators; and, by congregating in the main lobby inside the Hospital's main entrance;
-By unlawful means, interrupting and otherwise interfering with the business operations of Brookdale and injuring and causing irreparable harm to the goodwill of Brookdale in conducting its business;
-Unlawfully creating a hazardous condition directly inside Brookdale's place of business by obstructing and overwhelming the lobby area, blocking access to the patient care areas of the Hospital, thereby posing an imminent threat to the public heath, safety and welfare inasmuch as the Union's conduct, among other things, impedes the access of police, fire, EMS, sanitation and other emergency services whose assistance may be called upon, at a moment's notice, to address the needs of the public as well as Brookdale's employees, patients, officers, agents, members, representatives, associates, invitees and guests; and
-Conducing such threatening and unlawful conduct while trespassing on private property.
Defendants oppose Brookdale's motion and cross-move for an order dismissing the instant action.
Background
Brookdale is an incorporated nonprofit teaching hospital located in Brooklyn, New York, which provides general and specialized inpatient care as well as 24-hour emergency services, outpatient programs, and long-term specialty care to thousands of patients every year. 1199 is a labor organization that represents approximately 300,000 health care workers for purposes of collective bargaining. Approximately 3,200 of Brookdale's 3,500 employees are represented by 1199. At all relevant times, a collective bargaining agreement has been in effect between Brookdale and 1199.
The instant action arises out of a labor dispute between Brookdale and its 1199-represented employees over the May 20, 2011 cancellation of the employees' health insurance benefits due to the alleged failure of Brookdale to make certain payments to 1199's National Benefit Fund as required under the collective bargaining agreement. Dissatisfied with this state of affairs, at approximately 6:00 AM on May 26, 2011, members of 1199 began appearing in the main lobby of the hospital where they remained throughout the day. At approximately 7:00 AM on the day in question, Brookdale called the New York City Police Department and shortly thereafter, 15-20 police officers from the 67th Precinct responded to the call. For the remainder of the day, approximately 15-20 police officers remained at the Hospital, but no arrests were made. Ultimately, Hospital officials requested that the police remove the 1199 members from the lobby. However, after consulting their own counsel in the New York City Law Department, police officials informed the Hospital administrators that the police would only remove the protesters from the Hospital if they were presented with a court order/injunction directing such removal.
Labor Law § 807 (1)(c) defines a "labor dispute" as "any controversy concerning terms or conditions of employment, or concerning the association, or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee." Here, it is not disputed that the underlying controversy constitutes a labor dispute under the statute.
After the close of court hours on May 25, 2011, Brookdale made an emergency application for a temporary restraining order seeking, among other things, that the protestors be removed from the Hospital. Thereafter, this judge was contacted at home and ultimately, at approximately 9:00 PM, counsel for the Hospital and 1199 appeared before this judge in the courthouse regarding the emergency application. After hearing arguments on the matter that evening, the court denied the application for a temporary restraining order. In this regard, under Labor Law § 807 (1) and (2), the court lacks jurisdiction to issue any restraining order until it conducts a hearing consisting of the taking of testimony in open court with opportunity for cross-examination and testimony in opposition thereto ( see Amalgamated Transit Union, Local 1202, AFL-CIO, CLC v Greyhound Lines, Inc., 157 AD2d 167). Given the fact that the courthouse was closed, such a hearing was impossible. Further, Brookdale's "bare bones" allegations failed to adequately demonstrate any threat to the safety of the employees or patients at the Hospital which could justify the granting of such extraordinary relief. Instead, Brookdale was directed to commence an action when the courthouse opened in the morning, whereupon the matter would be set down for a hearing forthwith. On the morning of May 26, 2011, Brookdale commenced the instant action by filing an order to show cause seeking the aforementioned injunctive relief. Subsequently, 1199 filed a cross motion to dismiss the action. Thereafter, the parties appeared before the court for a hearing on the matter.
The Hearing
At the hearing, Brookdale called a single witness, Lavislaus Thomas, the Director of Safety at the Hospital. On direct examination, Mr. Thomas' provided credible testimony, the relevant parts of which are as follows:
-He arrived for work at the Hospital at approximately 5:30 AM on May 25, 2011 and at 6:00 PM, he noticed 20-25 1199 represented employees congregating next to the elevator in the main lobby of the hospital.
-At approximately 6:20 AM, the 1199 protesters in the lobby had increased to approximately 40 in number and as the day progressed, the number of protesters increased.
-At approximately 8:00 AM, yellow police tape was set up in the lobby by Hospital personnel in order to contain the protesters in the lobby and keep a clear path to the elevator and two corridors that led from the lobby to other areas of the hospital. One of these corridors led to the hospital's emergency room, cardiology unit, dialysis unit, as well as labs and offices. The other corridor led to an x-ray room, a dental unit, nursing home, and doctor's offices. The elevator led to different floors of the hospital. Patients checked into the hospital in the lobby area and used the elevator to gain access to other areas of the hospital. The tape was effective in containing the protesters "most of the time."
-After the tape was set up, between 8:00 and 8:45 AM, the police arrived at the Hospital. Mr. Thomas talked to a police lieutenant and asked for his assistance in removing the protesters from the Hospital. The police talked to the protesters and one protester left the building while 100 protesters remained.
-At one point, Mr. Thomas was informed by a safety officer that protesters were blocking the entrance to the x-ray room, whereupon security removed the protesters from the area and escorted a patient into the x-ray room.
-On several occasions, Mr. Thomas observed Hospital employees from the human resources department escort patients to the elevator.
-When shown picture of the lobby area [Plaintiff's Exhibit 2] taken by a security camera which depicted a number of protesters congregating in the lobby, Mr. Thomas testified that the pictures were indicative of what occurred during the course of the day.
-The presence of the protesters in the lobby violated (unnamed) OSHA and Fire Code provisions.
-On May 26, 2011, Mr. Thomas appeared for work at the Hospital at 5:45 AM. Upon entering the lobby, he noticed approximately 50 protesters therein. As the day progressed, the number of protesters increased to 100 at 8:00 AM, 200 at 12:00 PM, and approximately 200-250 protesters when he left the hospital to testify in court at 1:35 PM.
On cross-examination, Mr. Thomas offered the following additional testimony, which the court found to be credible:
-The 1199 protesters/employees in the lobby were wearing "1199" stickers on their clothing.
-The protesters were not chanting, picketing, or cursing.
-Approximately 20 police officers remained in the lobby throughout the day on May 26th and no one was arrested.
-When shown photographs [Defendants' Exhibits A and B] of protesters behind yellow police tape in a hospital corridor, Mr. Thomas testified that no one was denied the right to walk up and down the corridor by 1199 members and that the corridor was open all day. Mr. Thomas further testified that the photographs depicted the same scene as that shown in plaintiff's exhibit Plaintiff's exhibit 2, but the picture was taken from a different location.
-When asked to move because they were blocking access to hospital areas, 1199 protesters always complied.
-No one who wanted access to the hospital pharmacy was denied access by the 1199 protesters.
-Mr. Thomas advised the police that the protesters' presence constituted a fire code violation.
-On May 26, 2011, only 3-5 police officers were present in the hospital.
After the completion of Mr. Thomas' testimony, 1199 called as a witness Deputy Inspector Corey Pegues, the commanding officer of Brooklyn's 67th Precinct. On direct examination, Deputy Inspector Pegues provided credible testimony, the relevant parts of which are as follows:
-Brookdale Hospital is within the 67th Precinct and as commanding officer of the precinct, Deputy Inspector Pegues oversees the assignments of police officers in the precinct.
-At 7:00 AM on May 26, 2011, the police received a call regarding a disturbance at Brookdale and approximately 15 to 20 police officers were dispatched to handle approximately 200 protesters.
-No arrests were made. No criminal conduct was observed amongst the protesters and had any criminal conduct been observed, arrests would have been made.
-The police had a sufficient number of officers to control the situation at Brookdale.
-On May 26, 2011, only five police officers were assigned to Brookdale. Deputy Inspector Pegues deemed this number to be sufficient inasmuch as the situation at the Hospital involved peaceful assembly and there was no danger to persons or property.
On cross examination, Deputy Inspector Pegues offered the following additional testimony, which the court found to be credible:
-He was at Brookdale between 11:00-11:30 AM on May 26, 2011, during which time he spoke to Brookdale officials.
-He was advised by Hospital officials that the protesters were trespassing on Hospital property. Deputy Inspector Pegues conferred with counsel from the New York City Law Department and was advised that the police needed a court injunction before the police could remove the protesters from the Hospital.
Following this testimony, the parties rested and made oral arguments before the court. In short, 1199 argued that Brookdale failed to meet any of the five requirements set forth in Labor Law § 807 (1)(a-e). 1199 further noted that all of these requirements must be satisfied before the court has jurisdiction to issue an injunction under Labor Law § 807. Under the circumstances, 1199 maintained that the action must be dismissed. For its part, Brookdale argued that it had satisfied the requirements of Labor Law § 807. Specifically, Brookdale maintained that 1199 had engaged in the unlawful act of trespassing on private Hospital property, that the police were unwilling to furnish adequate protection to the Hospital by removing the trespassers, and that the Hospital had no adequate remedy at law, faced substantial and irreparable injury, and that the denial of an injunction would inflict greater injury upon the Hospital than granting the injunction would inflict on 1199 inasmuch as the Union's actions threatened the safety of Hospital staff and patients.
The Law
Labor Law § 807 (1) provides, in pertinent part:
"1. No court nor any judge or judges thereof shall have jurisdiction to issue anyrestraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute . . . 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:
"(a) That unlawful acts have or a breach of any contract . . . has been threatened or committed and that such acts or breach will be executed or continued unless restrained;
"(b) That substantial and irreparable injury to complainant's property will follow unless the relief requested is granted;
"(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial thereof than will be inflicted upon defendants by the granting thereof;
"(d) That complainant has no adequate remedy at law;
"(e) That the public officers charged with the duty to protect complainant's property have failed or are unable to furnish adequate protection."
The statute further specifies that the required hearing "shall consist of the taking of testimony in open court with opportunity for cross-examination" and that "no affidavits shall be received in support of any of the allegations of the complaint" (Labor Law § 807).
In enacting Labor Law § 807, "the Legislature has placed elaborate restrictions on the use of preliminary injunctions in private sector labor disputes" such as the one involved here ( Uniformed Firefighters Assoc. of Greater New York v City of New York, 79 NY2d 236, 241). This is no accident. Indeed, as Brookdale's own papers recognize in citing United Automobile, Aircraft Agricultural Implement Workers v Wisconsin Employment Relations Bd. ( 351 US 266, 276), state injunctive relief is generally preempted by Federal labor laws in labor disputes. An exception to this rule only occurs when state injunctive power is necessary "to prevent mass picketing, violence, and overt threats of violence. The dominant interest of the State in preventing violence or property damage cannot be questioned. It is a matter of genuine local concern" ( id. at 274). As the Court of Appeals long ago recognized in examining section 876-a of the Civil Practice Act (predecessor of Labor Law § 807), "[t]he effect of that statute is to prevent courts from enjoining peaceful picketing. It was never intended to deprive the Supreme Court of jurisdiction to enjoin dangerous, illegal acts which constituted disorderly conduct and breach of the peace" ( Busch Jewelry Co. v United Retail Employees' Union Local 830, 281 NY 150, 156 [1939]). Thus, for example, in Kay-Fries, Inc. v Martino ( 73 AD2d 342), the Appellate Division, Second Department partially upheld a lower-court injunction under Labor Law § 807 where there was uncontradicted testimony "replete with instances . . . of such particular unlawful acts as rock throwing and tire puncturing and slashing by union members, including one instance . . . in which a truck driver was struck by a rock hurled through his cab window" ( id. at 345). Further, in the context of a labor dispute involving a hospital, testimony regarding threats to "shut-down" a hospital in combination with thousands of picketers blocking ingress and egress at a hospital to the point of endangering the lives of patients may be sufficient to justify a limited injunction" ( League of Voluntary Hosp. and Homes of NY v Local 1199, Drug, Hospital Health Care Workers Union, 144 Misc 2d 433). However, under all circumstances involving a labor dispute, "a grant of injunctive relief must be based upon compliance with the provisions of Labor Law § 807" ( Jou-Jou Designs, Inc. v International Ladies' Garment Workers' Union, Local 23-25, 94 AD2d 395, 405, affd 60 NY2d 1011).
Findings and Rulings
Here, Brookdale has failed to demonstrate its entitlement to injunctive relief under the stringent requirements of Labor Law § 807 (1). Specifically, with respect to § 807 (1)(a), Brookdale has failed to demonstrate that a temporary or permanent injunction is necessary in order to prevent the type of actual or threatened "unlawful acts" which the statute is intended to protect against. In this regard, neither Mr. Thomas nor Deputy Inspector Pegues testimony revealed even the slightest hint of any violent, disorderly, or threatening conduct on the part of the protesters. To the contrary, this testimony indicates that the protesters were compliant and well-behaved at all times. Indeed, the fact that police department significantly reduced the number of officers assigned to the Hospital after May 26, 2011 attests to the peaceful nature of the protest. Further, assuming that the protesters' presence at the hospital constituted a trespass upon the Hospital's private property, as argued by Brookdale, there is no authority for the proposition that such conduct, in the context of a labor dispute, is itself sufficient to authorize injunctive relief in a labor dispute under Labor Law § 807. Rather, as previously noted, such relief is only authorized when there is testimony that an injunction is necessary in order to enjoin dangerous, illegal acts which constitute disorderly conduct and breach of the peace. Here, there is no evidence that the protesters' presence in the Hospital lobby amounted to dangerous or disorderly conduct even if it did constitute a trespass. Nor did the testimony reveal that the protesters' conduct or sheer numbers impeded the ingress and egress of patients and hospital staff to any significant degree, let alone that patients and staff were actually prevented from reaching areas of the hospital. In fact, Mr. Thomas testified that the police tape worked "most of the time" in containing the protesters, and that on those occasions when protesters were obstructing passage to the elevator or corridor, they moved without objection when asked.
As a final matter, the court notes that Brookdale's papers contain affidavits from various Hospital personnel including Suzanne Pennacchio, in which it is alleged that the protesters prevented employees and patients from accessing public areas of the hospital. However, these affidavits may not be served to support the allegations in Brookdale's pleadings (Labor Law § 807). Moreover, these claims are contradicted by the testimony of Brookdale's own director of safety.
With respect to Labor Law § 807 (1)(b), the testimony before the court is insufficient to demonstrate that substantial and irreparable injury to the Hospital's property will follow unless an injunction is granted. In this regard, Brookdale has suffered no property damage, nor is there any evidence of any threat of property damage. Further, there will be a continuing police presence at the Hospital and Deputy Inspector Pegues' testimony indicated that any such unlawful conduct would result in immediate arrest. Finally, to the extent that the well-being of Brookdale's patients and staff is implicated by this provision, the court has already noted that there is no testimony before the court that the actions and conduct of the protesters poses or threatens to pose a threat to the safety of patients and staff.
Turning to Labor Law § 807 (1)(c), Brookdale has failed to demonstrate that denying its application for an injunction will inflict injury upon it greater than granting the injunction would inflict upon 1199. As already noted, there is no evidence that the protesters engaged in, or threatened to engage in violent or disorderly conduct, that patients and staff were prevented access to areas of the Hospital, or that the Hospital suffered any property damage. In the absence of such testimony, Brookdale has failed to sufficiently demonstrate that it will be damaged by the lack of an injunction.
With respect to Labor Law § 807 (1)(d), Brookdale has failed to demonstrate that it has no adequate remedy at law. To the extent that 1199's actions constitute a trespass, Brookdale may bring an action seeking monetary damages. Further, to the extent that 1199's actions violate the collective bargaining agreement or constitute an unfair labor practice, Brookdale may seek relief before the National Labor Relations Board.
Finally, and perhaps most significantly, Brookdale has failed to demonstrate that the public officers charged with the duty to protect Brookdale's property have failed to or are unable to furnish adequate protection as required under Labor Law § 807 (1)(e). In his testimony, Deputy Inspector Pegues indicated that any protesters who engaged in unlawful, disorderly, or dangerous acts would be arrested. Deputy Inspector Pegues also testified that he had adequate manpower to keep the peace at the Hospital and to protect property and public safety.
Accordingly, Brookdale's motion for a preliminary and permanent injunction is denied. 1199's cross motion for an order dismissing the action is granted. Finally, the court notes that the present labor dispute at the Hospital is an ongoing situation. Accordingly, nothing in this order shall preclude Brookdale from again seeking injunctive relief should a change in circumstances which threatens the safety of the Hospital staff, patients, or the public at large warrant such relief.
This constitutes the decision and order and judgment of the court.