satisfied. NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1566-67 (7" Cir. 1998). Accordingly, the
NLRB must show by a preponderance of the evidence (1) some likelihood of success on the merits;
(2) that there is no adequate remedy at law and irreparable harm will result if the injunction is denied;
(3) irreparable harm to the NLRB outweighs threatened harm an injunction would inflict on
respondents; and (4) the public interest is served by injunctive relief. Jd. The likelihood of success
and balancing of harms are evaluated on a “sliding scale:” a strong showing under one clement may
offset a weaker showing under the other. Jd. at 1568.
B. Analysis

(1) Likelihood of success on the merits

In determining whether the NLRB is likely to prevail inits pending administrative proceedings
against respondents for bringing the state case against former employees who previously filed NLRB
charges, this court does not resolve the merits of the unfair labor practices claim. Rather, the court’s
inquiry is limited to a decision whether there is a better than negligible chance the NLRB will succeed
on the merits. To satisfy this burden, the NLRB must produce some evidence to support the unfair
labor charge, together with an arguable legal theory. Here, this means that the NLRB must
demonstrate (1) the state case has no disputed issue of material fact or no genuine legal issues; and
(2) the state case was improperly brought with a retaliatory motive. Bill Johnson’s Rest., Inc. v.
NLRB, 461 U.S. 731, 748-49 (1983). Respondents should be allowed to proceed with the state case
if there is any realistic chance their legal theories might be adopted by the state court. Id. at 747.

It must be noted that the NLRB presently moves to restrain only one aspect of the state case:
enforcement and collection of any default judgments that respondents obtain. The NLRB does not

seek to restrain the state court from determining the merits of the non-defaulting former employees’


CONCLUSION

The motion for a temporary restraining order is not siipported by sufficient evidence to
establish that irreparable harm will otherwise result or that the public interest is at stake. Nor has it
been established that the state case is baseless and was filed for retaliatory purposes. Accordingly, it

is not proper and just on the present record to restrain respondents from pursuing their rights in the

state case.
ENTER:
Suzan B. Conlon
March 2, 2001 United States District Judge


Federal Security.? No affidavits from the defaulted former employees were submitted, nor were any
witnesses called to testify at the hearing on the NLRB’s TRO motion. The NLRB simply asserted
during argument and in its brief that a temporary restraining order is required because the defaulted
employees will otherwise suffer irreparable harm. That harm is characterized as financial ruin and
injury to reputation. In addition, the NLRB contends that its own administrative processes and
credibility with aggrieved employees will be irreparably injured if a TRO is not issued.
DISCUSSION

A. Section 10(j) injunctive relief

For purposes of resolving the motion for a TRO, the court assumes jurisdiction under Section
10(j) of the National Labor Relations Act, 29 U.S.C. § 160().? Section 10(j) authorizes the court to
grant injunctive relief pending the NLRB’s resolution of the former employees’ pending unfair labor
practices charge. This interim remedy prevents potential frustration or nullification of the NLRB’s
remedial authority caused by delays inherentin NLRB administrative proceedings. Kinney v. Pioneer
Press, 881 F.2d 485, 493-94 (7" Cir. 1989). The burden is on the NLRB to establish that the
extraordinary remedy of injunctive relief is just and proper in a particular case. 29 U.S.C. § 160(j).

Traditional equitable standards are applied to determine whether the just and proper standard has been

? The affidavit of the NLRB’s Regional Director (and nominal petitioner) Elizabeth Kinney
was submitted with the initial petition for a temporary injunction. Kinney’s factual assertions are
based on “information and belief,” and not on her personal knowledge. Thus, the court finds the
Kinney affidavit lacks probative value on the TRO issues.

3 Respondents challenge this court’s jurisdiction. Because the TRO motion lacks a sufficient
evidentiary foundation, the court need not reach the jurisdiction issue until that issue is adequately
briefed. The court presumes jurisdiction because the NLRB has provisionally shown that the present
charge may be grounded on retaliation for protected activity by Federal Security’s former employees
in filing the original charge eight years ago.


fully-briefed motion to dismiss the state case. Indeed, were the state court to grant the dismissal
motion, the NLRB would have compel. ling evidence to satisfy its threshold requirement that the state
case presents no genuine legal issue. Dismissal of the state case would likely moot this injunctive
action. Conversely, if the state court denies the pending motion to dismiss, respondents would have
convincing evidence that their case presents genuine legal or factual issues. Thus, the NLRB’s
conclusory assertion that there is no good faith basis for the state case is both premature and
unsupported,

(2) Adequate remedy at law and irreparable harm

The NLRB does not challenge the factual basis for the default orders entered more than four
months ago. It is uncontested that the defaulted former employees failed to appear (either pro se or
by counsel) and failed to respond to the complaint; they did not oppose the default motion; they have
taken no action to vacate the default order; and they have not filed any objection to the motion for
a prove-up hearing. Clearly, the defaulted former employees have an adequate remedy at law, as
demonstrated by the two former employees who promptly had their defaults vacated by simply filing
a motion with the state court. The remaining defaults are undisputedly the result of the defaulters’
own inaction in failing to pursue their legal rights and remedies in the state case. Injunctive relief is
unwarranted if an employee has chosen not to pursue available and adequate legal remedies.

The NLRB argues that without a TRO, the defaulting former employees would be required
to expend their “scarce resources” to defend themselves in the state case and to satisfy any judgment
that is entered against them. The record is barren as to the financial resources of the former employees
and their present employment circumstances. They are entitled to appear pro se, they could have

asked the state court to set aside the defaults, and they could have opposed the motion for a prove-up


Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Judge Sitting Judge if Other
ae Magistrate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 01 C 838 DATE 3/2/2001
CASE ELIZABETH KINNEY vs. FEDERAL SECURITY INC., et al.
TITLE
{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of
the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” box above.]

(2) im) Brief in support of motion due

(3) im Answer brief to motion due . Reply to answer brief due

(4) a Ruling/Hearing on set for at

(5) o Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Qa Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) Oo Trial[set for/re-set for] on at

(8) oO [Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OGeneral Rule2] OFRCP41(aX(1) O FRCP41(a)(2).

(10) Ml [Otherdocketentry] _Petitioner’s motion for a temporary restraining order [12-1] is denied. ENTER
MEMORANDUM OPINION AND ORDER. Status hearing set on March 20, 2001 at 9:00 AM. The
parties shall submit status reports, with scheduling proposals for resolving all remaining issues, to chambers
by March 16, 2001. Q) ]

dint’ ©.

(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber orotices
¥ | Notices mailed by judge’s staff. 0 6 oe
V | Notified counsel by telephone. MAR dredouage #®

Docketing to mai notices.

Mail AO 450 form.

docketing deputy initials

Copy to judge/magistrate judge.

3/2/2001
courtroom oO i date mailed notice
SB deputy’s wt
initials j

Date/time received in
central Clerk’s Office

naling deputy initials



hearing. There is no evidentiary basis to conclude that failure to take these basic steps to protect their
interests was the result of indigence. Rather, any resulting financial Harm appears to be self-inflicted,
Nor is the assertion that the defaulting former employees’ reputations would be injured based on
anything but conjecture.

Similarly speculative is the NLRB’s contention that its administrative processes would be
jeopardized and aggrieved employees would be discouraged from filing charges ifa TRO were denied,
The record is devoid of evidence that any former employee was coerced or intimidated by respondents
in order to discourage participation in NLRB proceedings. In sum, no evidence of irreparable harm
has been shown.

(3) Balance of harms

Just as the NLRB has failed to demonstrate that the defaulting former employees would suffer
irreparable harm if a TRO is denied, respondents do not show they will be substantially harmed by a
TRO that would delay and possibly frustrate their efforts to enforce default judgments. The court
finds the balance of harms does not weigh in favor of either side.

(4) Public interest

The NLRB has failed to demonstrate that restraining respondents from moving forward to
enforce their rights under a default order entered four month ago would damage the public interest.
There is no evidence that any former employee of Federal Security has been discouraged from filing
and prosecuting grievances with the NLRB. Therefore, the public interest is not at stake. Szabo v.

P*I*E Nationwide, Inc., 878 F.2d 207, 210 (7" Cir. 1989).


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ELIZABETH KINNEY, REGIONAL
DIRECTOR OF REGION 13 OF THE
NATIONAL LABOR RELATIONS BOARD,
FOR AND ON BEHALF OF THE NATIONAL
LABOR RELATIONS BOARD,

No. 01 C 0838
Suzanne B. Conlon, Judge
Plaintiffs,

Vv.

DOCKETED

FEDERAL SECURITY, INC., AND ITS ALTER
MAR 0 6 2001

EGOS OR AGENTS, JAMES R. SKRYZPEK

)
)
)
)
)
)
)
)
)
)
}
AND JANICE M. SKRYZPEK, INDIVIDUALS, )
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

BACKGROUND
This action was filed by the National Labor Relations Board (“NLRB”) for a temporary

injunction to restrain Federal Security, Inc., James R. Skrzypek and Janice M. Skrzypek
(“respondents”) from prosecuting an ongoing case in an Illinois court against former employees.
Skrzypek, et al. v. Brewer, et al, Case No. 00 L 06317 (Circuit Court of Cook County)(“the state
case”).' In that case, respondents seek $140,000 in attorneys’ fees and court costs from 17 former
employees, who allegedly conspired to give false testimony against Federal Security in a purportedly

baseless NLRB unfair labor charge they filed eight years ago in retaliation for termination of their

' The Skrzypeks brought the state case as successors-in-interest of Federal Security, a
dissolved corporation.


p

employment. Respondents claim the discharged employees’ conduct constitutes malicious prosecution
and abuse of process under Illinois law.

The state case was filed on June 2, 2000; it triggered a second NLRB charge by the discharged
employees on June 30, 2000. The second NLRB charge contends that the state case is an unfair labor
practice to punish the discharged employees for their participation in the original NLRB charge. The
NLRB apparently took no action on the second charge until January 29, 2001, when it issued a
complaint and notice of hearing. The NLRB hearing is scheduled on March 13, 2001.

Meanwhile, the state court issued a default order against 11 of the former employees in
October 2000. Several weeks later, two defaults were vacated on the unopposed motion of those two
former employees. Nine defaulted former employees remain; they apparently have taken no action to
remedy the defaults entered more than four months ago. Respondents have now moved fora prove-up
hearing to reduce the defaults to judgment. This court has not been advised of the prove-up hearing
date. However, a hearing on a fully briefed motion to dismiss filed by seven former employees who
have appeared in the state case is set on March 6, 2001.

After respondents filed their prove-up motion, the NLRB moved for a temporary restraining
order (“TRO”) to bar respondents from (1) attempting to enforce or collect on any default judgments
obtained in the state case; and (2) “interfering with or coercing” former employees from exercising
their right to file NLRB charges or to give testimony in NLRB proceedings. See NLRB’s proposed
Order Granting Temporary Restraining Order. The NLRB requests that the TRO remain in effect until
it resolves the unfair labor practices charge arising from the state case. In support of the motion, the
NLRB submits only a copy of respondents’ motion for default judgment in the state case and this

court’s scheduling order, and has chosen to rest on the “documentary history” of its litigation against