29 Misc. 2d 688 | N.Y. Sup. Ct. | 1960
Defendant union moves to reargue plaintiff’s motion for a temporary injunction (Civ. Prac. Act,. § 876-a) which was granted by decision, dated August 18, 1960 (26 Misc 2d 1066) and order of August 18, I960, entered thereon. This application for roargument is based upon matters
To the instant motion for reargument plaintiff interposes its opposition on the merits and preliminarily on the technical objection that re argument may not be had upon matters not presented upon the original motion and that the new matter now urged may not be considered by the court. This preliminary objection must be overruled. While defendant union’s application for reargument is predicated upon new matter (of law) not presented upon the original motion, the issues involved are of such moment that the technical objection must be subordinated to the merits. Procedure should not be exalted over substance where disregard of a procedural defect in no way prejudices or affects a substantial right of the parties (Avery v. O’Dwyer, 280 App. Div. 766). Moreover, reargument may be had, even if not addressed exclusively to the original papers, where the decision thereon is in conflict with a statute or a controlling decision to which the attention of the court was not drawn through the neglect or inadvertence of counsel (Fosdick v. Town of Hempstead, 126 N. Y. 651). Accordingly, we pass on to the merits of the instant motion.
In a field so fluid as that of labor law, existing State and Federal cases on the vast subject have been consistently subject to varied interpretations and made inapplicable by changes in the Federal act, changed conditions, views and decisional law. For ultimate determination of the instant conflict we must look to the recent two Oliver cases and that of Garmon, afore-cited. Measured by these holdings, I am persuaded that the doctrine of Federal pre-emption is such as to withdraw jurisdiction over this case from our State courts and that the National Labor
The United States Supreme Court noted the extent of the coverage of sections 7 and 8 as being “ one of the most teasing and frequently litigated areas of industrial relations ” (id., p. 241); that “The threshold question in every labor preemption case is whether the conduct with respect to which a Suite has sought to act is, or may fairly be regarded as, federally protected activity. Because conflict is the touchstone of preemption, such activity is obviously beyond the reach of all state power ” (id., p. 250).
Since it is fairly debatable upon the papers here presented whether the conduct involved is Federally protected, the Oliver and Garmon cases leave no alternative but to hold that this court is pre-empted from considering the matter which must be left for determination in the first instance to the National Labor Relations Board. Moreover, in Dooley v. Anton (8 N Y 2d 91 [1960]) the New York Court of Appeals recently has had occasion to apply the Garmon doctrine. The court noted that its previous approach had been that “ any doubt [regarding the scope of pre-emption] should be resolved in favor of [State] jurisdiction ” (Pleasant Val. Packing Co. v. Talarico, 5 N Y 2d 40, 47 |1958]). It then recognized that “ the basic approach to a labor pre-emption problem announced in the Garmon case
In Columbia Broadcasting System v. McDonough, the Appellate Division in holding the Garmon decision to be controlling, stated that: “ Where, as here, there is an arguable question of jurisdiction, determination in the first instance must be left to the National Labor Relations Board and the State courts are not primary tribunals to adjudicate such issue ” (8 A D 2d 695, affd. 6 N Y 2d 962).
In the light of all of the afore-stated, I am therefore compelled to grant the instant motion for reargument. Upon such reargument the original decision is vacated and the motion for temporary injunction is denied upon the jurisdictional grounds stated. The parties are relegated to the National Labor Relations Board for such relief as they may be advised.