Kreisberg v. Pressroom Cleaners, Inc.

Filing 42

CORRECTED ORDER granting 25 MOTION for Preliminary Injunction by Jonathan B. Kreisberg. Signed by Judge Warren W. Eginton on 12/12/12. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JONATHAN B. KREISBERG, Regional
Director of Region 34 of the National
Labor Relations Board, for and on behalf
of the NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
PRESSROOM CLEANERS, INC.,
Respondent.

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3:12-cv-01013-WWE

MEMORANDUM OF DECISION ON PETITIONER’S MOTION FOR PRELIMINARY
INJUNCTION
Petitioner Jonathan Kreisberg, Regional Director of Region 34 of the National Labor
Relations Board, seeks injunctive relief pursuant to Section 10(j) of the National Labor Relations
Act (“NLRA”), pending the final disposition of its unfair labor practices suit against respondent,
Pressroom Cleaners, Inc., before the National Labor Relations Board. For the following reasons,
petitioner’s motion will be granted.
BACKGROUND
Pressroom began cleaning the offices of the Hartford Courant at 285 Broad Street in
Hartford, Connecticut, on December 12, 2011. The offices were previously cleaned by Capitol
Carpet & Specialty, Inc. (“Capitol”). Local 32BJ had long represented the Capitol workers, and
Capitol and Local 32BJ were parties to a collective bargaining agreement covering the workers at
the Courant site. There were eight Capitol employees at the site, including Epifania DeJesus,
Emilio Figueroa, Razmik Hovhannisayn, Daniel Korzeniecki, Mariana Lubowicka, and Anahit
Zhamkochyan. DeJesus had worked at the Courant for fifteen years; Lubowicka had worked

there fourteen years; Hovhannisayn had worked there nine years; Zhamkochyan had worked there
eight years. Both Hovhannisayn and Zhamkochyan testified that they are planning to retire
within a year.
Before taking over the account, Pressroom held a meeting with the Capitol workers.
Pressroom’s Vice President and half-owner, Steve Lilledahl, and his daughter, Sierra McSharry,
described this meeting as an interview. However, neither Lilledahl nor McSharry asked the
workers any questions, and several workers said nothing during the meeting. DeJesus and
Lubowicka testified that Lilledahl told them that Pressroom doesn’t work with unions and
doesn’t want the Union. Lilledahl made the following admission regarding his comments at the
meeting: “I would have introduced us and explained that we were non-union because I know that
they were [union]. I didn’t want them disillusioned or not understanding what we were offering
them.”
Pressroom admits that the Capitol workers made clear their interest in working for
Pressroom. Instead of hiring the Capitol workers, who had applied one month earlier, Pressroom
scrambled to put a crew together in the week before it took over the account. One worker, Juan
Cruz, who had no prior experience as a cleaner, was hired based on the recommendation of his
neighbor Elias Rosario, but Rosario had not started working for Pressroom and had never
previously worked with Cruz. Pressroom couldn’t even locate applications or any documents for
two of the workers it hired, Wesley Mendez and Joel Buhanji. Another worker, Heriberto
Ramirez, was placed on the payroll and then fired following a background check mandated by
the Courant. Several of the workers Pressroom initially hired either quit or were fired within a
few weeks.
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In January and February of 2012, Local 32BJ tried to reach out to the newly hired
Pressroom employees, approaching them in front of the Courant building. Pressroom’s on-site
supervisor, Francisco Teran, responded by repeatedly threatening workers with termination if
they spoke to Local 32BJ representatives. A former Pressroom employee, Madelyn Castro,
testified that Teran told her that the employees who previously worked at the Courant were fired
because of their union activity. Union representative Wojciech Pirog testified that Teran told
him that Pressroom would fire any worker who signed a Union authorization card. Pressroom
contends that Mr. Teran’s union threats, “although unfortunate,” do not indicate anti-union
animus by Pressroom in its decision not to hire the union applicants - because that decision
preceded Mr. Teran’s threats.
Pressroom has offered shifting explanations for its refusal to hire Capitol employees. Its
February 2012 position statement focused on Pressroom’s concern about the Capitol employees’
flexibility. However, Pressroom made no inquiry as to the Capitol employees’ flexibility.
Furthermore, when pressed by Judge Fish, McSharry, who oversaw the hiring process, admitted
that flexibility played no role in Pressroom’s decision.
Petitioner has moved for an injunction predicated on the conclusion that there is
reasonable cause to believe that respondent engaged in, and is engaging in unfair labor practices,
and that to prevent nullification of the purposes of the NLRA, an interim order should issue
requiring respondent to cease and desist from engaging in such unfair labor practices and to take
certain affirmative actions, namely, offering employment to the former Capitol employees.

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DISCUSSION
To issue a preliminary injunction under Section 10(j) of the NLRA, a court must find (1)
“reasonable cause to believe that unfair labor practices have been committed,” and (2) “that the
requested relief is just and proper.” Hoffman v. Inn Credible Caterers, Ltd., 247 F.3d 360, 36465 (2d Cir. 2001).
Reasonable Cause
In deciding whether there is reasonable cause to find and NLRA violation, courts
generally defer to the Board’s assertions. Accordingly, with regard to issues of fact, courts will
sustain the Board’s position “unless the court is convinced that it is wrong.” Danielson v. Int’l
Org. Of Masters, 521 F.2d 747, 751 (2d Cir. 1975). Likewise, courts accept the Board’s
statement of the law unless such a position is clearly incorrect. Id. Although courts accord the
Board deference due to its expertise, “to give the Regional Director’s position great weight is not
to make it dispositive.” Silverman v. Imperia Foods, Inc., 646 F. Supp. 393, 398 (S.D.N.Y.
1986). Rather, the Board must “come forward with evidence sufficient to spell out a likelihood
of violation” in order to demonstrate reasonable cause. Danielson v. Joint Bd. Of Caoat, Suit and
Allied Garment Workers’ Union I.L.G.W.U., 494 F.2d 1230 (2d Cir. 1974). The Board’s
allegation of an NLRA violation is supported by reasonable cause where the factual assertions
and legal positions are rational. See Danielson, 521 F.2d at 1245.
In considering whether to grant the requested section 10(j) relief, “[t]he court need not
make a final determination that the conduct in question is an unfair labor practice. It need find
only reasonable cause to support such a conclusion. Appropriate deference must be shown to the
judgment of the NLRB, and a district court should decline to grant relief only if convinced that
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the NLRB's legal or factual theories are fatally flawed.” Hoffman v. Polycast Tech. Div. of
Uniroyal Tech. Corp., 79 F.3d 331, 333 (2d Cir.1996).
Here, respondent has offered contrary explanations for its refusal to hire Capitol
employees and does not deny that their supervisor discouraged labor organization membership.
There is reasonable cause to believe that Pressroom unlawfully discriminated against the Capitol
employees in order to avoid a bargaining obligation with Local 32BJ in violation of 29 U.S.C.
Section 158(a)(3): “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.”
Therefore, petitioner has satisfied the first prong of Section 10(j).
Just and Proper
In the Second Circuit, Section 10(j) is deemed just and proper “when it is necessary to
prevent irreparable harm or to preserve the status quo.” Inn Credible Caterers, 247 F.3d at 368.
“The appropriate test for whether harm is irreparable in the context of § 10(j) successorship cases
is whether the employees' collective bargaining rights may be undermined by the successor's
unfair labor practices and whether any further delay may impair or undermine such bargaining in
the future.” Id. at 369.
Respondent argues that “even if Pressroom’s conduct is found unlawful, it will cause no
irreparable harm.” Respondent also asserts that the Union employees “have expressed no desire
to return to their previous employment.” However, petitioner maintains that this assertion is
“simply false.” The Union employees want to return to their jobs at the Hartford Courant.
Indeed, prior to submitting a petition to this Court requesting injunctive relief, it was incumbent
on the Regional Director to discern the status of the displaced workers and to inquire about their
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interest in taking a position with respondent if an injunction was granted. All six of the eligible
Union employees expressed to the Regional Director that they would accept the opportunity to
work for respondent under the same terms and conditions of employment subject to collectivebargaining.
Furthermore, petitioner makes clear that, as time elapses, the likelihood increases that the
workers will scatter and find themselves in different circumstances that prevent them from
returning to the Courant, despite their current desire to do so. The Court agrees that an
injunction is just and proper in order to prevent such irreparable harm. Therefore, petitioner has
satisfied the second prong of Section 10(j).
CONCLUSION
For the foregoing reasons, petitioner’s motion for preliminary injunction is GRANTED.
The injunction order will be filed concurrently.

Dated this 12th day of December, 2012, at Bridgeport, Connecticut.

_____________/s/________________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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