SW Legal studies in Business

Union May Be Sued for Common Law Nuisance

New York high court held that a union could be sued for nuisance to enjoin it from making a racket when engaged in lawful distribution of union material. Such common law actions are not preempted by the National Labor Relations Act.

Topic Labor Law
Key Words

NLRA; Preemption; Nuisance; Noise Making

C A S E   S U M M A R Y

Helmsley-Spear (HS) manages the Empire State Building (ESB). It hired Copstat Security, a private security firm, to provide security services for ESB. A union began an effort to unionize Copstat employees. On 18 separate days over three months, union members assembled outside entrances of the ESB and distributed leaflets while other members drummed on a metal pot, tin can, or other container. HS and owners of nearby businesses brought a nuisance suit against the union, seeking an order enjoining it from engaging in drumming or other noise-making activities. The trial court granted plaintiffs’ request and issued a preliminary injunction against the union finding that the noise caused stress and disrupted business. The appeals court reversed, finding that the noise making was protected as a part of the leaflet distribution and was allowed by the National Labor Relations Act (NLRA). That federal law preempted suit for nuisance. Plaintiffs appealed.


Reversed. Under the NLRA, the federal courts have been careful to avoid interfering with a state’s right to keep order within its borders. The states, similarly, respect the federal government’s right to protect unions, workers, and organizing activities. Causes of action, such as nuisance and trespass, are traditionally governed by state law, and Congress did not intend to preempt states “from protecting its citizens from obnoxious conduct.”

Citation Helmsley-Spear, Inc. v. Fishman, 11 N.Y.3d 470 (Ct. App., N.Y., 2008)

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