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 plaintiff's motion for a "temporary injunction," pursuant to § 10(j) of the NLRA, to remain in effect during the final disposition of administrative
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.
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.
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.
Section 10(j) of the NLRA provides:
29 U.S.C. § 160(j). In order for a district court to grant a temporary injunction under § 10(j), the Board must establish
Second, the "just and proper" standard requires the Board to satisfy "the familiar, four-part test" for preliminary injunctions and show:
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 plaintiff's arguments of "reasonable cause" as unopposed.
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
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.
Plaintiff has a fairly supported claim that defendant discriminatorily designed its hiring process so as to avoid hiring a majority of former Peace Plus employees and thus avoid its obligation to recognize SEIU Local 32BJ as the collective bargaining representative for the employees. The Court reaches that conclusion based on evidence that 1) defendant admitted to the hiring scheme and thus to discriminatory motives and antiunion bias, 2) the rationales proffered by defendant of prioritizing past work experience in applicants and of hiring on a "first come, first served" basis do not accurately characterize its hiring process, 3) defendant imposed more onerous hiring criteria on former Peace Plus employees and 4) defendant was willing to assign former Peace Plus employees to other locations in order to avoid its successor obligation to bargain with SEIU Local 32BJ.
Plaintiff asserts that it has reasonable cause to believe that defendant violated §§ 8(a)(5) and 8(a)(1) when it refused to recognize and bargain with SEIU Local 32BJ despite its successor obligation to do so.
Section 8(a)(5) prohibits an employer from refusing to bargain collectively with representatives of its employees. 29 U.S.C. § 158(a)(5). Plaintiff asserts that defendant was a successor employer to Peace Plus based on evidence showing that 1) defendant conducted essentially the same business as its predecessor Peace Plus did at the same locations and 2) former Peace Plus employees would have constituted a majority of defendant's work force at the two properties if defendant had not unlawfully discriminated against the former Peace Plus employees. Because Peace Plus had a preexisting collective bargaining relationship with SEIU Local 32BJ before defendant entered into the new contracts, defendant had a successor obligation to recognize, bargain with and treat SEIU Local 32BJ as the collective bargaining representative. There is ample evidence that defendant failed to do so.
Plaintiff has a fairly supported claim that defendant violated its successor obligation when it refused to bargain collectively with SEIU Local 32BJ. Defendant presents no evidence to the contrary on the issue of "reasonable cause" and instead presents "likelihood of success" arguments which are discounted for the reasons set forth below. Accordingly, the Court finds reasonable cause to believe that defendant refused to recognize and bargain with SEIU Local 32BJ in violation of § 8(a)(5). Because such a finding is dispositive on the issue, the Court declines to address whether there is also reasonable cause to believe that the same conduct violated § 8(a)(1).
Plaintiff claims that defendant unilaterally imposed employment conditions and terms without consulting SEIU Local 32BJ in violation of §§ 8(a)(5) and 8(a)(1).
Plaintiff presents evidence that defendant admitted to establishing new wages and benefits by extending the scope of its collective bargaining agreement with Teamsters Local 25 to include the Cross Point and Nagog Park properties. That evidence corroborates the earlier finding of the Court that there is reasonable cause to believe that defendant refused to recognize and bargain with SEIU Local 32BJ in violation of § 8(a)(5).
Plaintiff contends that defendant violated §§ 8(a)(2), 8(a)(3) and 8(a)(1) when it recognized Teamsters Local 25 as the exclusive collective bargaining representative and applied its collective bargaining agreement to the employees. Plaintiff argues that there is reasonable cause to believe that defendant's actions violated its successor obligation to recognize SEIU Local 32BJ, or, alternatively, that its actions violated the successor obligation because they were taken even though Teamsters Local 25 did not represent an uncoerced majority of employees.
Section 8(a)(2) prohibits an employer from
29 U.S.C. § 158(a)(2). Plaintiff refers the Court to evidence it presented with respect to its contention that defendant recognized and assisted Teamsters Local 25 in violation of its successor obligation to bargain with SEIU Local 32BJ.
Accordingly, the Court finds reasonable cause to believe that defendant's actions in recognizing and bargaining with Teamsters Local 25 as the collective bargaining representative violated § 8(a)(2) because they interfered with the formation or administration of SEIU Local 32BJ. The Court declines to address whether that conduct also violates the same or other NLRA provisions under different theories.
Finally, plaintiff asserts that there is reasonable cause to believe that defendant rendered unlawful assistance to Teamsters Local 25 in violation of §§ 8(a)(2), 8(a)(3) and 8(a)(1). Plaintiff offers evidence that 1) defendant admitted to including Teamsters Local 25 membership forms and dues checkoff forms in the applications it provided to former Peace Plus employees, 2) defendant admitted to introducing the Teamsters Local 25 representative at the company orientation for new Cross Point employees, 3) representatives of defendant remained present at the Cross Point orientation while a representative of Teamsters Local 25 distributed membership forms to employees and 4) defendant admitted to informing former Peace Plus employees that it considered Teamsters Local 25 to be its union.
Accordingly, the Court finds reasonable cause to believe that defendant provided unlawful support to Teamsters Local 25 in violation of § 8(a)(2). The Court declines to address whether the same conduct also violates other NLRA provisions.
Plaintiff avers that it has a likelihood of success on its claims based on evidence in the administrative record and on arguments that it set forth with respect to the presence of "reasonable cause." Defendant responds that 1) the subject legal standard is more stringent and not met by plaintiff and 2) defendant is not a successor employee to Peace Plus and is thus not bound by a successor obligation to recognize and bargain with SEIU Local 32BJ as the collective bargaining representative.
As an initial matter, defendant asserts that plaintiff must show a "strong likelihood of success" rather than a "likelihood of success" because the temporary injunction which plaintiff seeks in this Court is, in effect, identical to the permanent injunction that plaintiff will seek in the event it later prevails on the merits.
Defendant misinterprets the injunctive relief that plaintiff seeks. Plaintiff seeks back pay and monetary relief in its request to the Board for a permanent injunction but does not seek such relief in its request to this Court for a temporary injunction. The more stringent legal standard does not apply.
The Court is mindful that any injunctive relief that it imposes under § 10(j) must be temporary in the sense that
A successor employer is an employer that maintains generally the same business as the predecessor employer.
Plaintiff proclaims that 1) employees of Peace Plus and employees of defendant performed the same janitorial and cleaning services in the same buildings, 2) defendant made no changes to the cleaning services provided to the buildings at Cross Point and Nagog Park and 3) defendant provided the full range of cleaning services immediately upon taking over the contracts such that there was no delay or gap in the cleaning services.
Defendant responds that 1) its cleaning operations were "totally different" from those of Peace Plus because defendant hired more cleaning employees to perform the work at the two properties, 2) it supplied its own cleaning equipment and employee uniforms and did not purchase assets or equipment from Peace Plus, 3) it provided new supervisors for the employees rather than retaining the Peace Plus supervisors, 4) it paid different wages and offered different benefits to the employees under its collective bargaining agreement with Teamsters Local 25, 5) neither Peace Plus nor defendant considered the Cross Point and Nagog Park properties to be bargaining units separate from the company-wide bargaining unit of defendant and 6) Peace Plus and defendant were industry competitors that did not share any customers.
The Court concludes that 1) a total numerical increase of one or two employees does not, by itself, render the cleaning operations of defendant "totally different," 2) defendant provided different wages and benefits only as a result of its unlawful refusal to recognize and bargain with SEIU Local 32BJ, 3) the nature of the bargaining unit as company-wide or property-specific does not turn on the opinion of the employer and 4) it is unclear how the status of defendant as a cleaning services
The Court also notes that defendant's reliance on
Accordingly, the Court finds that plaintiff has shown a likelihood of success in demonstrating sufficient continuity between the cleaning operations of Peace Plus and defendant such that defendant qualifies as a successor employer to Peace Plus.
The obligation of a successor employer under § 8(a)(5) to bargain with the union that represented its predecessor's employees arises only if defendant hired a majority of those employees as of the date that the new operational unit became a "substantial and representative complement."
Plaintiff urges the Court to simplify that multifactor analysis into a straightforward inquiry as to when the new employer hired approximately 30% of the eventual employee complement in 50% of the job classifications. See
Plaintiff presents evidence that 1) defendant immediately provided the full range of cleaning services at both properties without undergoing a transition period or a gradual build up in operations, 2) defendant initially hired six former Peace Plus employees and a total of 17 employees to work at Cross Point, 3) defendant hired five former Peace Plus employees and a total of 10 to 11 employees to work at Nagog Park and 4) the cleaning contracts involved only janitorial employees such that defendant had only one job classification to fill. Plaintiff relies on that evidence to conclude that, because defendant immediately hired at least 30% of the employees in 100% of the job classifications at Cross Point and Nagog Park, the "substantial and representative complement" dates are the dates that defendant took over the cleaning contract at each property.
In response, defendant highlights the undisputed fact that defendant ultimately hired ten former Peace Plus employees to work at Cross Point. That fact is, however, irrelevant because it addresses an event that occurred after the "substantial and representative complement" arose. Defendant presents no other specific objections to plaintiff's argument.
Accordingly, the Court agrees with plaintiff and assesses whether defendant hired a majority of former Peace Plus
The undisputed evidence shows that with respect to the Cross Point property defendant initially hired six former Peace Plus employees and a total of 17 employees, and, as to the Nagog Park property, defendant hired five former Peace Plus employees and a total of 10 to 11 employees. At first glance, the hiring data suggest that defendant did not hire a majority of former Peace Plus employees at either property which, in turn, would lead to the conclusion that no successor obligation ever arose.
Plaintiff convincingly contends, however, that the Court should nevertheless infer majority hiring because defendant intentionally discriminated against former Peace Plus employees in order to avoid the 51% threshold that would trigger its successor obligation. The Board has held that
Defendant's attempts to rebut that inference of majority hiring are without merit. First, defendant argues that it
The Court is puzzled by that argument because 1) it improperly refers to the percentage of the workforce of its predecessor instead of the percentage of its own workforce and 2) it appears to strengthen rather than rebut the inference of majority hiring.
Moreover, defendant contends that the proper bargaining unit for calculating the percentage of former Peace Plus employees that it hired at Cross Point and Nagog Park is statewide rather than facility-specific. Defendant suggests that Peace Plus had an "area-wide" bargaining unit that geographically encompassed two states and that it did not have a successor obligation because it did not employ 50% of all the Peace Plus employees represented by SEIU Local 32BJ. Defendant claims that defining its bargaining unit as area-wide is warranted because that was the approach taken by the Board in the
The Court also declines to apply the "accretion" doctrine as a justification for defining defendant's bargaining unit as company-wide rather than facility-specific. The accretion doctrine applies only when
In sum, defendant has not rebutted the inference of majority hiring created by its unlawful discrimination and must comply with its successor obligation.
Accordingly, plaintiff has shown that it will likely prevail on its claims of successor status and successor obligation. For that reason and for the reasons set forth in the "reasonable cause" discussion, the Court finds that plaintiff will likely prevail on its claims that defendant unlawfully 1) refused to hire former Peace Plus employees, 2) refused to recognize and bargain with SEIU Local 32BJ, 3) imposed employment conditions and terms without consulting SEIU Local 32BJ, 4) recognized Teamsters Local 25 as the collective bargaining representative and 5) assisted Teamsters Local 25.
Plaintiff alleges the following forms of irreparable harm in the absence of a temporary injunction: 1) a chilling effect on employee willingness to participate in protected union activity, 2) employee fear of employer retaliation based on the actions of defendant in discharging or refusing to hire union supporters, 3) the reluctance of discriminated-against employees to accept offers of reinstatement when a significant period of time has passed between the unlawful labor practice and the offer and 4) a conferral of "unwarranted prestige" on Teamsters Local 25 which defendant can use to further erode employee support for SEIU Local 32BJ and solidify employee support for Teamsters Local 25. In support of its final argument, plaintiff cites the decision in
Plaintiff also claims that a final order by the Board in the administrative proceedings would be meaningless unless the Court issues a temporary injunction 1) to restore union supporters to the bargaining unit by ordering defendant to hire former Peace Plus employees and 2) to rescind the unilaterally imposed employment conditions and terms so that defendant cannot use the possibility of rescission as leverage in future collective bargaining negotiations with SEIU Local 32BJ.
Defendant, in turn, submits that a temporary injunction would effectively prevent it from exercising its right of appeal and would unleash the following parade of horribles upon it: 1) forced hiring of former Peace Plus employees who defendant chose not to hire in March, 2015, 2) forced termination of current employees in order to accommodate the newly hired workers, 3) payment of full back pay, including wages and fringe benefits with daily compounded interest, to the former Peace Plus employees who were not hired in March, 2015, 4) forced refunds of the Teamsters dues paid by the former Peace Plus employees who were hired in March, 2015, and 5) a duty to recognize and negotiate with SEIU Local 32BJ despite the standing, company-wide collective bargaining agreement between defendant and Teamsters Local 25. Defendant insists that, even if it were to prevail in the administrative proceedings before the Board and/or the First Circuit, it would not be able to recover the payments made to the former Peace Plus employees and would be locked into a collective bargaining agreement with SEIU Local 32BJ "far beyond the appeal period."
Defendant has exaggerated the extent of the harm that it would face under a temporary injunction. A temporary injunction would not affect the ability of defendant to exercise its right to appeal. Plaintiff does not seek back pay or monetary relief in its request for a temporary injunction in this Court. The harm that defendant faces as a result of hiring the discriminated-against employees, discharging existing employees if necessary and bargaining in good faith with SEIU Local 32BJ is not irreparable because such burdens "will only last until the Board's final determination."
Accordingly, the Court finds that the irreparable harm factor weighs in plaintiff's favor.
Plaintiff asserts that defendant would suffer little to no hardship under a temporary injunction because 1) the former Peace Plus employees are experienced in cleaning services and are qualified for the positions at Cross Point and Nagog Park such that mandatory instatement would not cause defendant harm, 2) the rights of discriminated-against workers to those positions are protected by the NLRA and thus outweigh the rights of any workers who must be discharged or reassigned in order to make room for the newly hired workers and 3) directing defendant to bargain in good faith with SEIU Local 32BJ would restore the lawful status quo and promote stable labor relations
Defendant contends that its burdens under a temporary injunction would "far out-weigh[]" any injuries to plaintiff or the former Peace Plus employees in the absence of a temporary injunction. Defendant stresses that, if plaintiff were to prevail on the administrative claim, defendant could provide the discriminated-against employees with back pay and could start negotiating with SEIU Local 32BJ at that later date. Because the interest on the back pay payments is compounded daily, defendant notes, the former Peace Plus employees would not be prejudiced by the delay.
The Court disagrees with defendant. Any delay in reinstatement or reaching a new collective bargaining agreement would amplify the chilling effect on protected union activity that resulted from defendant's unlawful conduct. Temporary injunctive relief under § 10(j)
Accordingly, the balance of hardships tips in plaintiff's favor.
Plaintiff contends that a temporary injunction is in the public interest because it furthers the purposes of the NLRA in strengthening the bargaining process, stabilizing labor relations and ensuring that employees receive the benefits of legitimate union representation. In response, defendant suggests that a temporary injunction would not further the public interest because it would force defendant to violate its existing collective bargaining agreement with Teamsters Local 25 and terminate current employees in order to make room for the new employees.
Defendant, however, misunderstands the nature of the public interest factor. The purpose of that factor is to incorporate the overarching objectives of labor law, not the specific goals of a particular party, into the analysis of whether a temporary injunction would be "just and proper." See
Accordingly, the Court finds that plaintiff has demonstrated "reasonable cause to believe" that defendant violated the NLRA and that temporary injunctive relief would be "just and proper." The Court will thus allow plaintiff's motion for temporary relief under § 10(j) of the NLRA.
For the foregoing reasons, plaintiff's motion for temporary injunctive relief (Docket No. 7) is
For the reasons set forth in the Memorandum and Order entered herewith, defendant Emerald Green Building Services, LLC is hereby temporarily enjoined, pursuant to § 10(j) of the National Labor Relations Act ("NLRA"), pending a final determination of the administrative proceedings
