Earlier this week, in Starbucks v. McKinney, 602 U.S. ____ _2024), the Supreme Court resolved a disagreement among federal appeals courts on how requests for injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA”) should be evaluated. The Supreme Court confirmed that courts must follow the traditional, more stringent test to review such requests from the NLRB, not the lenient standard pushed by the Board.
Specifically, the Supreme Court noted that injunctive relief pursuant to Section 10(j) is an extraordinary measure that can only be applied if the requesting party establishes that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest” as held in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (emphasis added).
Case Background
In 2021 and 2022, Jennifer Abruzzo, the NLRB’s General Counsel, issued memoranda stressing the importance of seeking 10(j) injunctions and attempting to focus the NLRB field offices on utilizing this remedy more frequently.
In February 2022, Starbucks terminated the employment of seven workers in a Tennessee store during a union campaign for violating company policy when they invited a news crew to visit the store. Shortly thereafter, the NLRB sought a preliminary injunction under section 10(j) of the NLRA, demanding that the employees be returned to work pending resolution of the unfair labor charges filed against Starbucks.
The United States District Court for the Western District of Tennessee granted the NLRB’s request for reinstatement in August 2022. In doing so, the District Court applied the two-part test established by Sixth Circuit precedent (as well as by other Circuits), instead of the four-part test set forth in Winter. The two-part test applied asks whether “there is reasonable cause to believe that unfair labor practices have occurred,” and whether injunctive relief is “just and proper.” McKinney v. Ozburn-Hessey Logistics, LLC, 875 F. 3d 333, 339 (2017) (internal quotation marks omitted). Starbucks appealed the District Court’s order, arguing that the four-part test should apply instead. After the Sixth U.S. Circuit Court of Appeals upheld the District Court’s ruling, Starbucks appealed to the Supreme Court.
In resolving the Circuit split, the Supreme Court noted “there is an obvious difference between having the Board show that it is “likely” to succeed on the merits and having it show only that its theory of the case is “substantial and not frivolous,” without having to convince the court that its theory is likely meritorious…. Section 10(j)’s statutory context does not compel this watered-down approach to equity.”
Impact On Employers
The Supreme Court’s ruling is certainly a win for employers as it sets a clear, more stringent standard for courts considering whether to grant the extraordinary relief that is a temporary injunction. Nevertheless, employers should continue to ensure that their policies and practices are not susceptible to challenge, particularly when dealing with workforces looking to unionize.
If you have questions or concerns about the potential unionization of your business and/or would like guidance on compliance strategies and training relating to potential organizing efforts, or need advice related to the National Labor Relations Act, please reach out to your favorite CDF attorney, the author of this blog post, Carolina Schwalbach, or Mark S. Spring, Chair of CDF’s Traditional Labor Law Practice Group.
