By MICHAEL VIRTANEN
Associated Press

ALBANY - A divided New York Court of Appeals ruled Monday that union members drumming outside the Empire State Building in efforts to organize the building's security guards are not protected by federal labor law and are subject to nuisance complaints.

In a 4-2 decision, the court ruled that the unionists could hand out leaflets, which the National Labor Relations Board concluded was their federally protected right, but that doesn't automatically include drumming on a plastic container, metal pot or tin can.

"It cannot be said that Congress ... intended to pre-empt states from protecting its citizens from obnoxious conduct," Hon. Eugene Pigott Jr. wrote for the majority. "The drumming in this instance does not constitute an ‘economic weapon' or ‘self-help' remedy akin to, for example, the employee walkout ...or a lockout by an employer."

Chief Judge Hon. Judith Kaye and associate judges Hon. Robert Smith and Hon. Theodore Jones Jr. agreed.

Building manager Helmsley-Spear Inc. and owners of nearby businesses filed the nuisance suit against Service Employees International Union Local 32B-32J and its president, Michael Fishman. Empire State Building Co. later replaced Helmsley-Spear as plaintiff.

A trial court granted a preliminary injunction to stop the drumming. A midlevel appeals court reversed that, saying the drumming was protected by labor law. Monday's decision reverses again, sending the case back to the midlevel court to consider whether state labor law would apply and allow drumming.

That lawsuit followed three unfair-labor-practice charges filed by Copstat Security against the SEIU local, which followed 18 days of leafletting and drumming in 2005-2006 outside Empire State Building entrances. The company claimed that the activity was coercive and illegal under federal labor law.

The NLRB dismissed the charges, saying the unionists were engaged in protected handbilling and "the use of the drum on the days in question ... was (not) sufficient to transform the leafleting activity into unlawful conduct."

Hon. Susan Read and Hon. Victoria Graffeo dissented, saying the earlier NLRB ruling also protected drumming and wearing a King Kong costume. "Pre-emption is well established as a matter of national labor policy, and is meant to avoid just the kind of conflict between federal and state law presented by this case," Read wrote.

Hon. Carmen Beauchamp Ciparick did not participate.

Union spokesman Matthew Nerzig called Monday's ruling "a temporary setback." He said the Court of Appeals addressed only federal pre-emption and not the SEIU local's other arguments, which will be heard in the lower court. "We're confident this will prevail," he said.

The union so far has not organized the building's security guards, Nerzig said.

Attorney Peter Stergios, representing the plaintiffs, declined to comment.