& Sons, Inc. v. National Labor Relations Board, 103 F.3d 1366, 1372 (7" Cir. 1997). The greater
the likelihood the NLRB can establish these two elements, the heavier this factor weighs in favor of
the NLRB for purposes of injunctive relief. Electro-Voice, Inc., 83 F.3d at 1568.

If respondents do not present evidence to the NLRB showing their lawsuit raises genuine
issues of material fact or issues of state law, then the NLRB may properly find that the suit is baseless.
Bill Johnson’s Restaurant, Inc. V. National Labor Relations Board, 461 U.S. 731, 745-46 (1983);
Geske & Sons, Inc., 103 F.3d at 1372. Kinney contends that during the March 13th hearing before
the administrative law judge, respondents refused to present any evidence showing the former
employees lied in their unfair labor charge. This is not entirely accurate. Respondents correctly
asserted they were not required to prove during the hearing that the former employees lied. Kinney’s
Petition (“Petition”), Ex. 1, Tr. at 38; See also Bill Johnson’s Restaurant, Inc., 461 U.S. at 744-45
(a “virtual trial on the merits” is not required when the NLRB is determining whether a lawsuit is
baseless). However, respondents did present evidence showing there is a genuine issue of material fact
as to whether the former employees lied. James Skryzpek testified that Michael Davenport, a former
Federal Security employee, told him the former employees set Skryzpek up and their labor lawyer
falsified affidavits used in the NLRB charge. Jd. at 127-28. Davenport denied this conversation ever
took place. Id. at 75-76. This discrepancy in testimony creates a genuine issue of material fact as to
whether the former employees lied in their unfair labor charge.

Kinney also attempts to establish respondents’ state case is baseless as a matter of law.
Specifically, Kinney contends statements made in the course ofa NLRB proceeding are privileged and
cannot be the basis for a private cause of action. In addition, Kinney asserts it is likely Illinois law will

not permit a malicious prosecution claim based on the initiation of proceedings before an


Consequently, Kinney has failed to show that irreparable harm would be inflicted if the state case and
enforcement of the default judgments are not stayed pending resolution by the NLRB. Similarly,
respondents fail to show they will be substantially harmed by a temporary injunction. Therefore, the
balance of harms does not weigh in favor of either side.

D. Public interest

Kinney and respondents dispute whether thwarting the remedial purposes of the NLRA is
considered an act that harms the public. Assuming the thwarting of the remedial purposes of the
NLRA causes public harm, the public interest would not be served by injunctive relief because it is
unlikely Kinney can establish the state case is baseless and motivated by retaliation.

CONCLUSION

The petition for a temporary injunction is denied.

ENTER:

Qwetus GC Golo

Suizanfe B, Conlon
April 25, 2001 United States District Judge



engaged in interstate commerce. Respondents assert that Kinney offers no evidence showing the
Skryzpeks engaged in interstate commerce. Kinney asserts this jurisdictional requirement is satisfied
because the Skryzpeks are alter egos of Federal Security. These arguments have no bearing on
whether this court has jurisdiction to grant injunctive relief. Section 10) grants a court the authority
to issue injunctive relief if a case is pending before the NLRB. It will ultimately be the NLRB’s
decision as to whether the NLRA applies to the Skryzpeks.
II. Injunctive Relief Standard

Kinney has the burden of establishing that the extraordinary remedy of injunctive relief is just
and proper. 29 U.S.C. § 160(j). In determining whether this burden is satisfied, courts consider the
following factors: (1) petitioner’s likelihood of success on the merits; (2) whether there is an adequate
remedy at law; (3) whether irreparable harm to the NLRB absent an injunction outweighs the harm
an injunction would inflict on respondents; and (4) whether public harm would result absent the
injunction. NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1566-67 (7" Cir. 1996). Kinney must
establish the second and fourth prongs by a preponderance of the evidence. Jd. at 1567. Additionally,
Kinney must show irreparable harm to the NLRB by a preponderance of the evidence. Jd. However,
Kinney is not required to establish that harm to the NLRB outweighs respondents’ harm if there is a
strong showing that success on the merits is likely. Jd. at 1567-68. In other words, the likelihood of
success and balancing of harms are evaluated on a sliding scale. Jd. at 1568.
TI. Analysis

A. Likelihood of success on the merits

The NLRB may order the cessation of a state lawsuit when the lawsuit is baseless and brought

for the purpose of retaliating against an employee for exercising rights protected by the NLRA. Geske


administrative agency. The likelihood of Kinney succeeding on these claims is minimal. The state
judge clearly disagreed because there is no evidence he dismissed respondents’ claims on these
grounds. Furthermore, the case law cited by Kinney does not support her absolute privilege argument.
The cited cases refer to absolute privilege from libel charges, not perjury.?

Kinney further contends respondents did not offer sufficient evidence to support the elements
of malicious prosecution. However, respondents are not required to present their entire case to the
NLRB. If they do not have sufficient evidence to sustain a malicious prosecution claim, the state judge
will dismiss the case.

Even if there were a likelihood Kinney could establish respondents’ state case was baseless,
it is unlikely Kinney could show respondents brought the lawsuit for a retaliatory purpose. Janice
Skryzpek testified at the administrative hearing that the state case was filed to recover Federal
Security’s legal fees. Petition, Ex. 1, Tr. at 114-15. Kinney contends this testimony is insufficient to
overcome the evidence that the state case was filed “in retaliation for the guards’ [sic] having asserted
their statutory right to use the Board’s processes, as admitted repeatedly in the Verified Complaint.”
Petition at p. 11. Kinney fails to specify where in the verified complaint these admissions are allegedly
made, nor does a review of the complaint support Kinney’s characterizations. In fact, the complaint
appears to clearly state the lawsuit was filed to recover legal fees caused by the former employees’
false allegations. Cmplt. at Count I, § 55; Count II, § 51; Count III, § 50. Respondents also allege
damage to reputation. However, this damage was allegedly caused by the former employees

conspiring to give false testimony during the NLRB hearing, not merely by filing charges.

°Thomas v. Petrulis, 465 N.E.2d 1059 (Ill. App. Ct. 1984); Walker v. Gibson Jr., 633 F.Supp.
88 (N.D. Ill. 1985); Lykowski v. Bergman, 700 N.E.2d 1064 (Ill. App. Ct. 1998).

5


Minute Order For (06/97)

Sb

United States District Court, Northern District of Illinois

Name of Assi; Judge Sitting dge if Oth
ae Magenets Judge Suzanne B. Conlon than ahead Judge
CASE NUMBER 01 C 838 DATE 4/25/2001
CASE ELIZABETH KINNEY vs. FEDERAL SECURITY, et al.
TITLE

the motion being presented.]

MOTION:

DOCKET ENTRY:

a)
Q)
(3)
(4)
G)
(6)
a”
(8)
(9)

(10)

qd)

a Filed motion of [ use listing in “Motion” box above.]

o Brief in support of motion due

a Answer brief to motion due__. Reply to answer briefdue___

Oo Ruling/Hearing on__—_sset fort

o Status hearing[held/continued to] [set for/re-set for] on setfor at

oO Pretrial conferencefheld/continued to] [set for/re-set for]on__setfor__—sat__—.

0 Trial[set for/re-set for]on at.

oO [Bench/Jury trial] [Hearing] held/continuedto___—_at

im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).

a [Other docket entry] The petition for a temporary injunction [1-1] is denied. ENTER

MEMORANDUM OPINION AND ORDER.

3, Corde

| [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
No notices required. number of notices

{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

Notices mailed by judge’s staff.
Notified counset by telephone. dete dockoned
Docketing to mail notices,

Mail AO 450 form.

docketing deputy initials

Copy to judge/magistrate judge.
a 4725/2001

courtroom on iee ei Bev iste maited notice
SB deputy’s par ik

initials int

Date/time received in
central Clerk’s Office maiting deputy initials



In addition, Kinney contends filing a baseless lawsuit is evidence of retaliation. However,
Kinney is unlikely to establish the lawsuit is baseless. Therefore, she is unlikely to establish retaliation
onthis basis. The unlikelihood of Kinney’s success on the merits of her claim does not weigh in favor
of an injunction. ,

B. Adequate remedy at law

For the reasons discussed in this court’s March 2, 2001 order, the defaulted employees were
not denied an adequate remedy at law. Kinney does not dispute the factual basis for the default orders.
The defaulted employees failed to appear and failed to respond to the complaint. Injunctive relief may
not be granted if an employee has failed to pursue available and adequate legal remedies.

In regard to the employees actively defending themselves, the NLRB has failed to show by a
preponderance of the evidence that they lack the financial resources to oppose the lawsuit. In fact,
the evidence establishes the lawsuit is proceeding and they are represented by an attorney. The NLRB
offers financial affidavits from only two of the eight non-defaulted employees. These affidavits fail to
explain why pro se appearances are nota viable option. Furthermore, although the affidavits state the
affiants’ salaries, they do not state the rate of their attorney’s fees. Moreover, the affiants do not state
they are unable to pay the costs of litigating the state case. Accordingly, there is insufficient evidence
that any of the former employees do not have an adequate remedy at law.

C. Balance of harms

Kinney contends irreparable harm will occur if an injunction is not granted because the
remedial purpose of the NLRA will be threatened. The remedial purpose of the NLRA is undermined
when employers bring baseless and retaliatory actions. Geske, 103 F.3d at 1379. As discussed above,

it is unlikely Kinney can establish Federal Security’s state case is baseless and retaliatory.


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,

v.

DOCKETED

FEDERAL SECURITY, INC., AND ITS ALTER APR 30 2001

EGOS OR AGENTS, JAMES R. SKRYZPEK
AND JANICE M. SKRYZPEK, INDIVIDUALS,

Defendants.

MEMORANDUM OPINION AND ORDER
Elizabeth Kinney (“Kinney”), on behalf of the National Labor Relations Board (“NLRB”),

seeks a temporary injunction to restrain Federal Security, Inc. (“Federal Security”), James R.
Skryzpek, and Janice M. Skryzpek (collectively “respondents”) from pursuing an ongoing Illinois case
against 17 former Federal Security employees.' Skryzpek, et al. v. Brewer, et al, No. 00 L 06317
(Circuit Court of Cook County) (“the state case”), Kinney contends respondents’ suit is baseless and
brought in retaliation against the former employees for filing of charges with the NLRB, in violation

of § 8(a)(1), (4) of the National Labor Relations Act (“NLRA”).

‘On March 2, 2001, this court denied the NLRB’s petition for a temporary restraining order
pertaining to the enforcement of default judgments against the former employees.

25


BACKGROUND

The state case is based on allegations that the former employees conspired to give false
testimony against Federal Security in a NLRB unfair labor charge. In October 2000, the state court
issued a default order against 11 of the former employees. The state court subsequently vacated two
of these defaults. The non-defaulted former employees are actively defending the action.

On March 6, 2001, the state judge dismissed Federal Security’s abuse of process and related
conspiracy claim. The judge further instructed Federal Security to file an amended complaint for the
remaining malicious prosecution and conspiracy claims. Respondents amended their complaint on
March 23, 2001.

On March 13, 2001, the NLRB held a hearing to determine whether respondents’ filing of the
state case is an unfair labor practice. The administrative judge has not yet issued a ruling. Kinney
requests that the state case and enforcement of default judgments be stayed until the NLRB reaches
a final decision on this matter.

DISCUSSION
I. Jurisdiction

Section 10() of the NLRA authorizes district courts to grant temporary injunctions pending
the NLRB’s resolution of unfair labor practice proceedings. This provision reflects Congress’ desire
to prevent unfair labor practices from causing substantial injury while NLRB proceedings are “making
their stately progress to conclusion.” NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 891 (7" Cir.
1990).

Respondents contend they are not bound by the NLRA and, thus, the NLRB lacks jurisdiction

over the Skryzpeks. It is undisputed that the NLRA only applies to individuals and entities that have