Kreisberg ex rel. National Labor Relations Board v. Emerald Green Building Services, LLC

169 F. Supp. 3d 261, 2015 U.S. Dist. LEXIS 175212
CourtDistrict Court, D. Massachusetts
DecidedOctober 23, 2015
DocketCivil Action No. 15-13395-NMG
StatusPublished
Cited by1 cases

This text of 169 F. Supp. 3d 261 (Kreisberg ex rel. National Labor Relations Board v. Emerald Green Building Services, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kreisberg ex rel. National Labor Relations Board v. Emerald Green Building Services, LLC, 169 F. Supp. 3d 261, 2015 U.S. Dist. LEXIS 175212 (D. Mass. 2015).

Opinion

MEMORANDUM & ORDER

GORTON, United States District Judge

This case involves allegations that defendant used unfair labor practices in hiring new employees for contract cleaning services and in recognizing a particular union as the employees’ exclusive collective bargaining representative, all in violation of the National Labor Relations Act (“the NLRA”), 29 U.S.C. § 151, et seq.

Pending before the Court is plaintiffs motion for a “temporary injunction,” pursuant to § 10(j) of the NLRA, to remain in effect during the final disposition of admin[265]*265istrative proceedings before the National Labor Relations Board (“the Board”). For the reasons that follow, plaintiffs motion for a temporary injunction under § 10(j) of the NLRA will be allowed.

I. Background

A. Parties

Jonathan Kreisberg is the Regional Director of Region 1 of the Board. He has petitioned the Court for a temporary injunction for and on behalf of the Board.

Emerald Green Building Services, LLC (“Emerald Green”) is a company that provides contract cleaning facility services at properties in Massachusetts and New Hampshire. It has approximately 15 accounts at 25 buildings. In January, 2015, Emerald Green replaced P.E.A.C.E. Plus Maintenance, Inc. (“Peace Plus”) and entered into a contract to perform cleaning services at the Cross Point property in Lowell, Massachusetts and at the Nagog Park property in Acton, Massachusetts.

B. Defendant’s alleged conduct

Plaintiff claims that defendant violated multiple provisions of the NLRA by utilizing unfair labor practices when it 1) refused to hire employees to perform cleaning services at Cross Point and Nagog Park based on their membership or support of Service Employees International Union, Local 32BJ (“SEIU Local 32BJ”) and 2) recognized and supported International Brotherhood of Teamsters, Local Union No. 25 (“Teamsters Local 25”) rather than SEIU Local 32BJ as the exclusive collective bargaining representative for the employees at the two sites.

C. Procedural history

In March, 2015, SEIU Local 32BJ filed an administrative complaint before the Board alleging that defendant violated §§ 8(a)(2), 8(a)(3), 8(a)(5) and 8(a)(1) of the NLRA. The Administrative Law Judge (“ALJ”) held a hearing on the complaint and issued a decision in September, 2015 finding that defendant engaged in unfair labor practices in violation of those provisions. Defendant indicated an intent to file exceptions to the ALJ’s decision. The Board anticipated that its review of the ALJ’s decision and defendant’s exceptions would require “many more months of administrative litigation.”

Plaintiff filed a complaint in this Court, for and on behalf of the Board, against defendant in September, 2015 alleging multiple violations of the NLRA. Plaintiff moved for a temporary injunction under § 10(j) of the NLRA on the same day and the Court held a hearing on the motion shortly thereafter.

II. Plaintiff’s motion for a temporary injunction

A. Legal standard

Section 10(j) of the NLRA provides:

The Board shall have power, upon ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred ... for appropriate temporary relief or restraining order. ... [T]he court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

29 U.S.C. § 160(j). In order for a district court to grant a temporary injunction under § 10(j), the Board must establish

reasonable cause to believe that the defendant has committed the’unlawful la[266]*266bor practices alleged, and [that] injunc-tive relief is, in the language of the statute, “just and proper.”

Pye ex rel. N.L.R.B. v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1st Cir.1994). First, “reasonable cause” requires that “the Board’s position is fairly supported by the evidence.” Id. (internal quotation marks omitted). Courts should not resolve contested issues of fact and should defer to the characterization by the Board of the facts as long as the characterization is “within the range of rationality.” Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 158 (1st Cir.1995).

Second, the “just and proper” standard requires the Board to satisfy “the familiar, four-part test” for preliminary injunctions and show:

(1) [a] likelihood of success on the merits;
(2) [t]he potential for irreparable injury in the absence of relief;
(3) [t]hat such injury outweighs any harm preliminary relief would inflict on the defendant; and
(4) [t]hat preliminary relief is in the public interest.

Sullivan Bros. Printers, 38 F.3d at 63.

B. Application

1. Reasonable cause

Plaintiff claims there is reasonable cause to believe that five particular, instances of defendant’s conduct violated various provisions of the NLRA. The arguments in defendant’s oral argument and written opposition address the “likelihood of success” requirement but not the “reasonable cause” requirement. Accordingly, the Court will treat plaintiffs arguments of “reasonable cause” as unopposed.

a. Refusal to hire employees affiliated with SEIU Local 32BJ

Plaintiff contends that there is reasonable cause to believe that defendant violated §§ 8(a)(3) and 8(a)(1) when it refused to hire Peace Plus employees due to the collective bargaining relationship between Peace Plus and SEIU Local 32BJ.

Section 8(a)(3) of the NLRA prohibits an employer from engaging in

discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...

29 U.S.C. § 158(a)(3). Conduct that violates § 8(a)(3) also derivatively violates § 8(a)(1) which prohibits an employer from interfering with, restraining or coercing employees in the exercise of their rights under the NLRA. Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 698 n. 4, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983).

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Bluebook (online)
169 F. Supp. 3d 261, 2015 U.S. Dist. LEXIS 175212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kreisberg-ex-rel-national-labor-relations-board-v-emerald-green-building-mad-2015.