Helmsley-Spear, Inc. v Fishman

[*1] Helmsley-Spear, Inc. v Fishman 2006 NY Slip Op 50855(U) [12 Misc 3d 1151(A)] Decided on April 5, 2006 Supreme Court, New York County Shulman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2006
Supreme Court, New York County

Helmsley-Spear, Inc., on Location Tours, Inc. and Northpoint Trading, Inc., Plaintiffs,

against

Michael Fishman as President of SEIU Local 32B-32J, AFL-CIO, SEIU Local 32B-32J, AFL-CIO and John Does 1-7, Defendants.



102590/06

Martin Shulman, J.

Plaintiffs Helmsley-Spear, Inc. ("Helmsley"), On Location Tours, Inc. ("On Location") and Northpoint Trading Inc. ("Northpoint") (collectively, "plaintiffs") moved by Order to Show Cause ("OSC"), inter alia, for a temporary restraining order ("TRO") and a preliminary injunction to enjoin Defendants Michael Fishman as President of SEIU Local, 32B-32J, AFL-CIO, SEIU Local 32B-32J, AFL-CIO and John Does 1-7 (collectively, "union defendants", "union members" or "Union"):

from noise making activities through the use, or by means of, striking, pounding, beating, drumming, or banging upon objects, or instruments including, but not limited to, plastic or metal containers, buckets, drums, or cans, within 150 feet in any direction of either the Empire State Building ["ESB"],located at 350 Fifth Avenue, New York, New York, the building located at 347 Fifth Avenue, New York, New York ["347 Fifth"]. . . ("banging racket").

Background and Underlying Verified Complaint

Helmsley, ESB's managing agent, retained an independent contractor, Copstat Security ("Copstat") to provide security guard services at the ESB. Since March 2005, the Union has been engaged in a campaign to organize the Copstat employees and purportedly improve their work conditions, wages and benefits. The Union's crusade began on or about November 23, 2005, when about 4 to 6 union members, clearly identified as such by either hats, jackets or other apparel, started congregating outside various entrances of the ESB (Verified Complaint at ¶ 10), and handing out flyers which called attention, among other concerns, to Copstat employees' alleged low wages and non-existent benefits. To draw attention to the Union's leafleting activity, 1 or more of [*2]the union members began banging on large white plastic containers, tin cans or metal pots with sticks as one would a drum (Verified Complaint at ¶ 14). Between November 23, 2005 and February 14, 2006, this banging racket purportedly took place on at least 18 different days and lasted for long periods of time on those days (Verified Complaint at ¶¶ 11 and 13). The union members' banging racket, inter alia, has not only disturbed ESB tenants, visiting tourists and store-front businesses in the vicinity of the ESB (Verified Complaint at ¶ 15) but has also interfered with the operation of On Location's and Northpoint's businesses [FN1] (Verified Complaint at ¶¶ 18-19). And this complained of activity "does not rise out of a labor dispute between the Union and any of the [p]laintiffs." (Verified Complaint at ¶ 22).

The TRO

On February 24, 2006, this court granted the TRO enjoining the banging racket. On Monday afternoon, February 27, 2006, this court had a teleconference with the parties' respective counsel and was informed that the Union had obtained appropriate New York City permits to hold a rally on the afternoon of February 28, 2006 between the hours of 2:00 p.m. and 6:00 p.m. within the vicinity of the ESB and 347 Fifth, a location bound by the TRO. Without prejudice to any of the parties' rights and remedies in this action, in equity or at law, this court granted the union defendants' application solely to the extent of suspending the TRO for the duration of that afternoon's rally. The TRO otherwise remained in effect for a period of 21 days from the February 27, 2006 decision and order or until further notice.

On March 24, 2006, this court conducted a hearing to determine whether to grant a preliminary injunction or dissolve the TRO.

Plaintiffs' Position

In this action, plaintiffs do not challenge the Union's handbilling or leafleting activities, per se. However, plaintiffs find the union members' banging racket to be an unreasonable nuisance, among other concerns, which has disturbed the peaceful work environment of ESB's tenants and businesses within its vicinity. The following is gleaned from the plaintiffs' supporting affidavits ("Supp. Aff.") and hearing testimony.[FN2]

James R. Hynes, an ESB Assistant Building Representative ("Hynes"), was formerly a Sergeant with the New York City Police Department ("NYPD"). At the ESB, Hynes, among other responsibilities, trains security personnel and conducts investigations relating to building security (Hynes Supp. Aff. at ¶ 2). During the latter part of his 20 year tenure with the NYPD, Hynes became a Special Projects Coordinator [*3]for Technology for the Patrol Services Bureau, was in charge of the Sound Level Meter Program and after specialized training regularly used a sound level meter during the course of his police duties to enforce New York City's noise abatement laws (Hynes Supp. Aff. at ¶ 3).

Around the Thanksgiving holiday, Hynes was alerted to, and afterwards investigated, an incident where approximately 4 to 6 union members had been assembling outside 1 or more of the ESB entrances (i.e., the 33rd Street entrance, the Fifth Avenue entrance and/or the 34th Street entrance). At that time, 1 union member began the banging racket by striking a 5 gallon plastic container or paint can with a stick while the other union members handed out flyers and talked to passersby about why the Union was at the ESB (Hynes Supp. Aff. at ¶ 3).[FN3] During the time period which is the subject of this litigation, the banging racket would occur at least 2 to 3 times a day at 20 to 45 minute intervals or longer. Id.

There were occasions when 2 union members would be causing the banging racket just outside 1 of the ESB entrances [FN4] and the noise would be so loud that Hynes actually heard it in his offices located on the 32nd floor of the ESB (Hynes Supp. Aff. at ¶ 6).

In early December 2005, Hynes found the banging racket to be so offensive that he began taking noise level measurements with a sound level meter. Complying with standard protocol, Hynes stood at least 25 feet away from the situs of the banging racket and took respective sound meter readings of the ambient noise level and banging racket noise level. The recorded readings revealed that the ambient noise ranged from 74dB(A) to 80dB(A)[FN5], whereas the noise from the banging racket measured [*4]as high as 95dB(A). (Hynes Supp. Aff. at ¶ 7).

During the relevant time period, Hynes received numerous complaints about the business-interfering nature of union members' banging racket from ESB tenants, an ESB Observatory guard and member of the Union, NYPD police officers stationed at the ESB and principals of businesses located at 347 Fifth Avenue, a building located directly opposite ESB's Fifth Avenue Entrance (Hynes Supp. Aff. at ¶ 8).

The sound and fury over the banging racket was telling in the affidavits and testimony of the principals of co-plaintiffs, On Location and Northpoint. During the relevant time period, Georgette Blau, President of On Location [FN6] ("Blau"), personally observed a union member incessantly causing the banging racket "for hours on each occasion [and] multiple times per week for the past two months. . ." (Blau Supp. Aff.

at ¶ 7). Without receiving any satisfactory resolution, Blau repeatedly called 311, spoke to NYPD officers stationed across the street at the ESB and one time personally pleaded with the union member to desist from causing this banging racket as it was interfering with her business meetings and employees' ability to do their work during normal business hours [FN7] (Blau Supp. Aff. at ¶¶ 6-8). Blau even wrested the stick from the union member's hand and unsuccessfully sought the assistance of an NYPD officer stationed at the Fifth Avenue entrance to stop this "madness." However, to avoid losing valuable business, On Location staff was forced to conduct client meetings at local coffee shops away from the ESB and worked evening hours to make up for work stoppages which occurred as a result of union members' banging racket. Id.

Furnishing background information, Jack Ezon, Chief Executive Officer and Executive Vice-President of Northpoint ("Ezon"), testified that serious thought went into relocating Northpoint's corporate offices and showrooms to 347 Fifth Avenue, a location deemed to be a cross-road to the domestics and clothing apparel markets [FN8] and as a result thereof, Northpoint enjoys typical purchase orders from "walk-in" customers ranging from $250,000.00 to 7 figures. Like Blau, Ezon recalled union members' incessant banging activity beginning on or about November 23, 2005 (Ezon Supp. Aff. [*5]at ¶ 3), occurring several times a week and "lasting for several hours at a time, with only brief intermissions"(Ezon Supp. Aff. at ¶ 4). As a direct result of union defendants' banging racket, Ezon, in otherwise good health, experienced severe headaches while Northpoint suffered business interruptions and lost potential sales when certain customers left its ground floor shows highly irritated by the banging racket (Ezon Supp. Aff. at ¶ 5).

Both Blau and Ezon conceded they did not shut down their businesses, send their staff home and/or withhold their rent from the landlord of 347 Fifth during the relevant time period the union members' banging racket occurred.[FN9]

Union Defendants' Verified Answer

Union defendants interposed a verified answer and, relevant to the issuance of a preliminary injunction, denied complaint allegations as to the frequency, volume and duration of the banging racket and as to the number of union members regularly banging on plastic containers or tin cans at any of ESB's entrances. Union defendants further denied that such activity constituted a nuisance. Further and among its 5 affirmative defenses contained in the verified answer, the Union alleges, in part, that Helmsley "has made no effort to try to settle its [labor] dispute with [the Union] despite the existence of a contractual grievance procedure." (Verified Answer, First Affirmative Defense at p. 4).

Union Defendants' Position

Union defendants oppose the OSC and urge that a preliminary injunction be denied and that the TRO be vacated because: plaintiffs, in their verified complaint and OSC neither pleaded sufficient facts of the harm plaintiffs suffered as a result of the Union's activity at the ESB, nor strictly complied with the statutory criteria for injunctive relief in this action arising out of a labor dispute (see Labor Law § 807 et seq.); the Federal Labor Law preempts the field concerning union defendants' alleged misconduct being challenged in the underlying complaint; and plaintiffs failed to sufficiently plead a private nuisance claim and/or show irreparable harm to either warrant a preliminary injunction or sustain the TRO. Union Defendants further argue that the banging racket is necessary to call attention to their message, is expressive conduct protected as constitutionally guaranteed free speech and cannot turn on respective plaintiffs' subjective sensitivities.

What precipitated union defendants' demonstrations at the ESB? The Union is a party to a collective bargaining agreement which covers certain of ESB building services employees. [FN10] However, the Union has no collective bargaining agreement with Copstat, [*6]an independent contractor furnishing security guard service at the ESB (Bozzi Gomez Opp. Aff. at ¶ 4). Union defendants admittedly began their campaign in the Fall 2005 to single out the ESB and, particularly, Helmsley's contract with Copstat which the Union claims inadequately compensates the latter for its security services. This in turn, the Union claims, forecloses Copstat from being able to improve its employees' conditions of employment (i.e., better wages, health insurance, pension benefits, etc.) (Bozzi Gomez Opp. Aff. at ¶ 7).

The Union began certain organizing publicity activities to unionize Copstat employees and solicited the support of ESB tenants and the public at large in its quest

(Bozzi Gomez Opp. Aff. at ¶ 8). It is undisputed that the Union used "certain devices, such as drumming on buckets, but only in tandem with and to draw attention to its handbilling activities near the ESB. . ." (Bozzi Gomez Opp. Aff. at ¶ 12). And given the claimed competition from other leaflet distributors (e.g., restaurant menus, sales promotions, etc.) and street vendors vying for the public's attention, it was necessary to use "these devices to enhance its ability to communicate its message regarding the wages, benefits and working conditions. . ." of Copstat employees. Id.

At the hearing, union defendants produced 1 witness, John Mato, a Union organizer, who testified that during the relevant time period, usually only 1 union member banged on a container or can at a particular ESB entrance, the banging was of short duration and did not hamper his ability to communicate the Union's message to passing pedestrians, ESB visitors and people working at the ESB.

As a backdrop bolstering its opposition to the TRO and preliminary injunction, union defendants point to a Letter Ruling dated January 4, 2006 from the Regional Director of Region 2 of the National Labor Relations Board ("NLRB") which dismissed a charge Copstat filed against the Union alleging, inter alia, that union members' activities at the ESB were forcing Helmsley not to continue using Copstat's security guard service in violation of NLRA §8(b)(4) and to force Copstat's employees to select the Union as their collective bargaining representative (see Exhibit A to Strom Opp. Aff.). This Letter Ruling concluded that the Union "was engaged in protected handbilling or leafleting, and not picketing or other coercive conduct. . . [and that] the use. . .of the drum. . .on the days in question. . .was [not] sufficient to transform the leafleting activity into unlawful conduct." (bracketed matter added) (Exhibit B to Strom Opp. Aff.).[FN11]

Discussion

At the outset, this court recognizes the well settled rule that a "State Court lacks jurisdiction over a matter involving conduct arguably either protected or prohibited by federal labor law. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244-245, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1978). . ." Duane Reade, Inc. v. Local 338 Retail, Wholesale Dept. Store Union, 3 Misc 3d 405, 412, 777 NYS2d 231, 237 (Sup. Ct., NY Co., 2003, Kornreich, J.). In further challenging this court's issuance of the TRO, union [*7]defendants rely on the seminal decision of Schivera v. Long Island Lighting Co., 296 NY 26, 31, 69 NE2d 233, 234 (1946) which cites to Civil Practice Act §867-a (predecessor statute to Labor Law § 807 et seq.) and prohibits a State court from enjoining "peaceful picketing in a labor dispute. . ." Relevant to this discussion, Schivera, supra , did not address secondary boycotts or intrinsically unlawful picketing. Union defendants also find Jou-Jou Designs, Inc. v. International Ladies' Garment Workers' Union, Local 23-225, 94 AD2d 395, 465 NYS2d 163 (1st Dept., 1983), affd., 60 NY2d 1011, 471 NYS2d 568 (1983) to be on point.

At first blush, it remains unclear at the nascent stage of this action whether the Union's activity at the ESB constitutes a lawful labor dispute implicating Labor Law §807 et seq. The I.L.G.W.U. members in Jou-Jou, supra (who already represented similarly situated garment workers), actually picketed (albeit violently as was alleged) against a jobber and its outside contracting companies [FN12] protesting the working conditions of the latter's non-union garment workers to compel the jobber to only use union-approved contractors. However, the Union's organizing demonstrations outside the ESB are concededly designed to unionize security officers in New York City and for the first time add this unique workforce to its ever-growing membership of building services workers which would in turn generate another stream of dues revenue.

It also can be reasonably inferred that the primary objective of these demonstrations, particularly with the banging racket which allegedly affected ESB tenants, On Location, Northpoint and other businesses in the vicinity of the ESB (clearly having no unity of interest with Copstat), is to interfere with Helmsley's security services contract with Copstat, conceivably an impermissible secondary boycott. In any event, this action does not and will not address union defendants' recognitional objectives, namely, the substantive legality of union members' demonstrations generally. Duane Reade, supra , 3 Misc 3d at 413, 777 NYS2d at 238, n.5. It will be up to the NLRB to determine whether or not the leafleting activities and the February 28, 2006 mass rally were/are lawful activities (for the latter, see Exhibits C and D to Strom Opp. Aff.).

And notwithstanding the foregoing, this court is sensitive to the Union's efforts to seek to have Copstat increase the compensation package of its employees as well as increase their level of training to meet the heightened security needs of New York City's commercial buildings and residences. To that end and with the issuance of the TRO, this court has taken no action to curtail union defendants' right, inter alia, to "[a]ssembl[e] peaceably. . . to organize to do any of the acts. . ." (Labor Law

§ 807[1](f)[7]) to encourage any Copstat employee to become a union member and obtain the inevitable benefits of such membership. What this court did do was simply stop the banging racket temporarily. As will be noted, infra, "[t]here exists a significant state interest in protecting the [plaintiff(s)] from the challenged conduct'. . ." Holt v. Mead Truck Renting Corp., 228 AD2d 476, 643 NYS2d 679 (2nd Dept., 1996).

Nor was this court persuaded at this juncture by the finding of the Regional Director that the "use of the drum on the days in question. . .was [not] sufficient to [*8]transform the leafleting activity into unlawful conduct." (see Exhibit B to Strom Opp. Aff.). Plaintiffs were not parties before the NLRB and never had a full and fair opportunity to litigate the issue as to the banging racket's alleged deleterious effect on persons and businesses having absolutely nothing to do with union defendants' "dispute" with Copstat. Thus, the doctrine of res judicata is clearly not implicated here. Parenthetically, an NLRB determination would not necessarily be binding on a court in an action for damages. Peterson v. Associated Musicians of Greater New York, Local 802, 1972 U.S. Dist. LEXIS 14413, 80 L.R.R.M. 2182 (S.D.NY, 1972, Bonsal, J. ).

Preliminary Findings

To establish entitlement to a preliminary injunction in this action, plaintiffs must demonstrate (1) a likelihood of ultimate success on the merits, (2) irreparable injury if no preliminary injunction issued and (3) a balancing of the equities in favor of plaintiffs. CPLR § 6301; Aetna Insurance Co. v. Capasso, 75 NY2d 860, 552 NYS2d 918 (1990). It is a drastic remedy which may only be granted to a party with a clear legal right to such relief grounded on undisputed facts as to the harm sought to be enjoined. First Nat. Bank of Downsville v. Highland Hardwoods, Inc., 98 AD2d 924, 926, 471 NYS2d 360, 363 (3rd Dept., 1983).

Except for raising legal arguments challenging the court's exercise of its jurisdiction to issue the TRO and/or preliminary injunction, union defendants did not seriously dispute plaintiffs' supporting affidavits decrying the effect the banging racket had on ESB tenants, On Location and Northpoint. Nonetheless, with an abundance of caution, this court scheduled a hearing to establish a record of the times, places and nature of the banging racket complained of and afforded union defendants a full and fair opportunity for cross-examination and opposition testimony. Presumably comfortable with the notion that the law is on their side, union defendants' defensive posture at the hearing was understandably lukewarm and not factually credible.

Union defendants strenuously contend that the banging racket was critical to draw passersby to their message of the claimed, hapless Copstat employees. Otherwise, union members' schpiel would be competing with the ambient traffic noise and other street hawkers and their message would get lost, i.e., they would be greeted with apathy like menu distributors and their leaflets would be thrown into garbage bins or litter the streets.

On the developed record thus far, plaintiffs have credibly made a preliminary showing that the allegations of this banging racket during the relevant period has caused stress and business interruption and if unabated, would potentially create more stress and psychological harm to listeners. The Union dismissively argues that the banging racket drawing attention to union members' leafleting activity should be akin to interpersonal friction and tolerated in a crowded metropolis (see, Domen Holding Co. v. Aranovich, 302 AD2d 132, 753 NYS2d 57 [1st Dept., 2003] affd. as mod., 1 NY3d 117, 769 NYS2d 785 [2003]). This court disagrees.

Noise pollution is clearly an unwanted but necessary evil. Because noise pollution does not typically kill anyone, its potential for harm is clearly overlooked. Surely, no one would disagree that prolonged exposure to certain levels of noise pollution can cause hearing loss and mental disturbance. Even a minor, persistent noise like a dripping faucet can be jarringly distracting. True, a person's annoyance threshold [*9]for noise is subjective. But, sound levels can be measured and noise pollution, where possible, needs to be controlled to minimize the harmful exposure.

Here, Helmsley took meter readings of the banging racket which objectively measured in excess of 95dB(A), a volume with the potential to cause stress and psychological harm to ESB tenants, plaintiffs and others in the vicinity of the ESB after prolonged exposure. These objective findings as well as plaintiffs' unrebutted testimony at the hearing preliminarily established that the banging racket union members caused during prime business hours on at least 18 different days during the relevant period adversely affected productivity, efficiency and morale of On Location and Northpoint employees situated directly opposite the ESB across Fifth Avenue. And if the banging racket remained unchecked, it would not be unreasonable to assume that ESB tenants and other business people in its vicinity will desperately join the ranks of plaintiffs and presumably corroborate the distracting and anxiety-producing nature of this banging racket.

Plaintiffs have shown a likelihood of success on the merits that plaintiffs and others will suffer substantial and irreparable harm if the banging racket is allowed to continue; that "greater injury will be inflicted upon [plaintiffs] by the denial [of the preliminary injunction] than will be inflicted upon [union defendants] by the granting thereof. . ."(bracketed matter added) (Labor Law § 807[1][c]); that plaintiffs have no adequate remedy at law; that NYPD officers were/are unable to order the cessation of union members' banging racket; that enjoining the banging racket will not directly or indirectly foreclose the Union from its organizing activities and getting its message across to Helmsley, Copstat, ESB tenants, ESB visitors or anyone else willing to listen; and that under these circumstances, the equities favor plaintiffs.

Based on the foregoing, this court grants plaintiffs' OSC for a preliminary injunction enjoining union defendants from causing the banging racket and conditions the continuation of the preliminary injunction upon plaintiffs' posting of an undertaking by cash or a surety company bond in the sum of $10,000.00 within 5 days of service of a copy of this decision and order with notice of entry.

To be perfectly clear, union members' guarantee of free speech in delivering their message is wholly unaffected as this preliminary injunction is solely limited to restricting the banging racket and does not prohibit leafleting activity or impose any "sounds of silence."

This constitutes the decision and order of this court. Courtesy copies of the decision and order have been faxed to counsel for the respective parties.

DATED: New York, New York

April 5, 2006

___________________________

HON. MARTIN SHULMAN, J.S.C. Footnotes

Footnote 1: As an aside, plaintiffs do not allege that these demonstrations are violent in nature or that union members have blocked any of the ESB entrances thereby preventing Helmsley employees, ESB tenants and visitors from either ingress or egress.

Footnote 2: No transcript of the March 24th hearing has been made available for this court's perusal. Nonetheless, this decision and order cites all references to certain facts and circumstances attested to in an OSC annexed supporting affidavit, infra, where such purported facts and circumstances were also reiterated and expanded upon during the course of a respective affiant's testimony at the hearing.

Footnote 3: Because the ESB indubitably is a world renowned landmarked structure, its Security Command Center, certainly after 9/11, is vigilant in monitoring the ESB exterior perimeter for unusual occurrences. Hynes testified that such incidents must be taken very seriously because certain exterior perimeter activity could potentially be viewed as a diversionary tactic by persons unknown to penetrate the ESB, compromise building security and jeopardize the ESB as well as the health and safety of ESB occupants and visitors.

Footnote 4: To corroborate this testimony, plaintiffs introduced into evidence as Plaintiffs' Exhibit 1 a videotape which captured every one of these demonstrations. Plaintiffs played that portion of the video tape depicting union members' activity which occurred during the morning hours of January 3 and 6, 2006. On the latter date, 2 union members were shown causing the banging racket outside the 33rd Street entrance. In arguing against the admissibility of the videotape transcribed on a DVD disk, the Union's counsel did not generally dispute the accuracy of the videotape but argued that the court should not infer that a tag team of union members banging on buckets or cans outside any of the ESB entrances was a regular occurrence during the relevant time period.

Footnote 5: A decibel (dB) is a logarithm of the ratio of the sound pressure experienced to the reference pressure (which is the threshold of hearing). It is a unit for expressing the intensity of sound on a scale from zero (for the average least perceptible sound) to about 130 for the average pain level (Webster's Ninth New Collegiate Dictionary, 1988 at p. 329).

Footnote 6: On Location furnishes bus tours to various places in New York City which were/are the sites for movies and television shows. This co-plaintiff maintains its principal place of business on the 6th floor of 347 Fifth and its employees conduct most of On Location's business there (Blau Supp. Aff. at ¶¶ 2-3).

Footnote 7: Blau testified that the banging racket caused her employees to be anxious and affected their concentration to perform the tasks at hand. During Hynes' unrefuted testimony, this court learned that noise levels above 70dB can cause agitation and noise levels above 90dB can cause anger and belligerent behavior.

Footnote 8: Northpoint is an importer and manufacturer of linens and towels as well as menswear and ladieswear including a line of college-themed clothing (Ezon Supp. Aff. at ¶ 3). Northpoint leases space on the ground floor and second floor for its offices and showrooms and has been at 347 Fifth Avenue for 2½ years.

Footnote 9: This testimony was elicited during union defendants' counsel's cross-examination of these co-plaintiffs' principals. The question concerning whether these co-plaintiffs had withheld their rent was puzzling as this court could not discern what would lawfully justify such actions against the 347 Fifth landlord under these present circumstances.

Footnote 10: The Union represents "approximately 75,000 employees in the building service industry, including some 50,000 employees of building maintenance contractors security contractors, building management companies, apartment and commercial office buildings in New York City." (Bozzi Gomez Opp. Aff. at ¶ 2).

Footnote 11: Copstat has filed an appeal with the Acting General Counsel of the NLRB in Washington, D.C. to review this Letter Ruling which is pending.

Footnote 12: Clothing companies who design patterns and then outsource the fabrication of the garments to other companies ostensibly utilizing a cheaper labor force.