Supreme Court clarifies standard for injunctions under NLRA

On June 13, 2024, the U.S. Supreme Court issued an 8-to-1 decision in Starbucks Corp. v. McKinney, which clarified the legal standard—and made it uniform nationwide—when federal courts are asked to grant a preliminary injunction, or court order, under §10(j) of the National Labor Relations Act (NLRA) based on allegations of unfair labor practices. Let’s take a closer look.

Seeking preliminary injunctions

NLRA §10(j) provides the National Labor Relations Board’s (NLRB) general counsel with a powerful remedy while administrative proceedings over unfair labor practice allegations are pending. Specifically, the NLRB’s prosecutors may seek a preliminary injunction to reinstate allegedly unlawfully discharged employees or to prohibit alleged changes to working conditions motivated by unlawful animus against union activity before any actual findings of fact or order are issued.

The NLRB can seek this temporary remedy to preserve what it views as the proper status quo in the relationship between a company, its employees, and a union during an organizing campaign and in other contexts by petitioning a federal court “to grant . . . such temporary relief . . . as it deems just and proper.”

The Board traditionally pursues this temporary remedy so that the remedial purpose of the much longer administrative law process under §§10(b),(c) isn’t frustrated (and can run its course, often taking many months if not years).

Decision

Writing for the majority in Starbucks Corp. v. McKinney, Justice Clarence Thomas explained that when the Supreme Court interprets a statute, it won’t “lightly assume that Congress has intended to depart from established principles.” In this case, the issue was that different courts were applying different standards for granting an injunction—some based on wide-ranging equitable principles and others based on a simpler, more permissive standard for the NLRB to meet.

The general rule for an injunction, however, requires a party to demonstrate the four criteria that are found in the Supreme Court case Winter v. Natural Resources Defense Council, Inc.:

• The NLRB is “likely to succeed on the merits.”
• Affected employees are “likely [to] suffer irreparable harm.”
• “The balance of equities tips in [the NLRB’s and/or employees’] favor.”
• “An injunction is in the public interest.”

According to the Supreme Court, application of the less demanding two-part test used by the U.S. 3rd, 5th, 6th, 10th, and 11th Circuit Courts of Appeals was a departure from the four criteria and the ordinary interpretation of §10(j) and reflected a more relaxed standard. In issuing its decision, the Supreme Court clarified that §10(j) requires that—regardless of the federal court in which the injunction is sought—the NLRB must meet the four criteria for a preliminary injunction to be granted.

Takeaway

The NLRB may be more selective in pursuing an injunction after steadily trying to increase its use of §10(j) over the past decade. Notably, the Court’s ruling doesn’t mean the Starbucks employees who were fired—and then ordered to be temporarily reinstated by the U.S. District Court for the Western District of Tennessee—are now out of a job again pending the outcome of the NLRB proceedings. Instead, the Supreme Court’s opinion simply directed the district court to apply the more exacting standard in determining if §10(j) relief was warranted.

Martin J. Regimbal and Amiel Provosty are attorneys with The Kullman Firm. Martin represents employers in labor and employment law matters and has litigated collective actions under federal and state statutes in a variety of courts. Amiel advises employers on traditional labor and employment law drawing from 12 years as a prosecutor at the National Labor Relations Board (NLRB). You can reach them at mjr@kullmanlaw.com or ajp@kullmanlaw.com.