By: Thomas S. Tripodianos Published: November 2009

Contractor alleges Subcontractor's union harassed...

Question. Contractor alleges Subcontractor' union harassed and defamed him regarding a project. Contractor alleges Subcontractor erected a 12-foot inflatable rat in front of his offices and at a charity event, as well as handed out allegedly defamatory leaflets alleging Contractor exploited workers. Contractor filed an unfair labor practice complaint with the National Labor Relations Board against the union arising from the same conduct. May the Contractor also recover under a tortious interference claim?

Answer. NO. The claim is preempted by the National Labor Relations Act as Where the consequences of peaceful and violent conduct were separable, recovery may only be had for the latter. The Contractor did not allege any violence or threats of violence, thus, Contractor's tortious interference claim was preempted by federal law.

Contractor alleges that the Union erected a 12-foot inflatable rat in front of Contractor's offices. According to Contractor, The Union's representatives shouted that Contractor exploits workers, and distributed allegedly defamatory leaflets which stated as follows:

SHAME!ON [CONTRACTOR] for allowing workers to be exploited.
Allowing contractors who pay workers in a fashion which permits them to bypass the City, State and Federal tax structure is not only against the law, it costs taxpayers millions of dollars in lost tax revenue.
Untrained and unskilled workers will always lead to an unsafe work-place, shoddy workmanship and a lower quality finished product.
While New York City construction workers rebuild our city, help show your support for their desire to work in a safe environment, receive a living wage, and be treated with the dignity and respect that they deserve.
Does [CONTRACTOR] think it's worthwhile to exploit workers just so he can save a little money?
Call [CONTRACTOR] at [555-555-5555] and tell him that all workers deserve a living wage.

Contractor alleges that Subcontractor set up an inflatable rat in front of the building at an event where the Contractor was being honored and that Subcontractor’s representatives allegedly yelled that Contractor was a #&!* and a rat, exploits workers, and that he should be arrested. When Contractor arrived at the event, they allegedly surrounded Contractor and screamed #&!* and obscenities.

Later that month, Subcontractor allegedly appeared outside Contractor's residence, where they again shouted that he exploits workers. On the same day, Subcontractor threatened to follow Contractor to California in order to disrupt an event at which Contractor would be addressing a large audience. Contractor also alleges that Subcontractor made telephone calls to Contractor's receptionist in which they stated that Contractor exploits workers by paying below minimum wage and hiring non-union workers, and that on other occasions, Subcontractor called to imply that Contractor was in physical danger, because the speaker stated that he better watch his back. According to Contractor, Subcontractor threatened to go to Contractor's son's school, in order to humiliate and intimidate Contractor and his son. Contractor thereafter filed a criminal complaint against The Union and one of its members. It appears that the New York Police Department saw no criminal conduct and did not make any arrests.

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 labor practice under §8, due regard for the federal enactment requires that state jurisdiction must yield. Therefore, state regulations and causes of action are presumptively preempted if they concern conduct that is actually or arguably either prohibited or protected by the Act. The purpose of the preemption is to prevent conflict between, on the one hand, state and local regulation and, on the other, Congress' integrated scheme of regulation, embodied in §§7 and 8 of the NLRA, which includes the choice of the NLRB, rather than state or federal courts, as the appropriate body to implement the Act.

Consequently, we must look at whether Subcontractor' alleged conduct is arguably prohibited by federal labor law. Contractor alleges that Subcontractor tortiously interfered with Contractor's prospective business relations. This conduct is arguably prohibited by the NLRA. Section 8 (b) (4) (B) of the NLRA provides that it shall be an unlawful labor practice for a labor organization or its agents to force or require any person to cease doing business with any other person (29 USC §158 [b] [4] [B]). Section 8 (b) (4) (D) states that it is unlawful to engage in forcing or requiring an employer to assign particular work to employees in a particular labor organization (29 USC §158 [b] [4] [D]). Section 8 (b) (4) (7) states that it is unlawful for a labor organization to picket any employer where any object thereof is to force or require the employer to bargain with the labor organization (29 USC §158 [b] [4] [7]).

However, the preemption does not apply where the activity: (1) touches interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act, or (2) involves conduct that would only peripherally implicate the concerns underlying the federal labor laws . Where the consequences of peaceful and violent conduct are separable, recovery may only be had for the latter. Where the consequences cannot be separated, recovery may only be had if the violent conduct was so pervasive that the proof might support that the conclusion that all damages resulting from the picketing were proximately caused by its violent component or by the fear which that violence engendered.

Applying the above principles to this case, the purported tortious interference with prospective business relations claim lacks merit. Contractor does not allege any violence or even threats of violence in connection with this alleged conduct. The sole basis for this claim is that The Union's representatives erected an inflatable rat outside a hotel, and distributed allegedly defamatory leaflets in a restroom of the hotel. Therefore, Contractor's tortious interference with prospective business relations claim is preempted by federal labor law.

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