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The National Labor Relations Board (NLRB or Board) is the agency authorized to bring enforcement proceedings against employers and labor unions for unfair labor practices in violation of federal labor law. The Board also may go to federal court and seek a preliminary injunction while the Board’s enforcement proceedings are still ongoing. Although these injunction requests used to be rare, they have become more frequent under the Biden Administration.
Several federal courts of appeals applied an extremely lenient standard to the Board’s injunction requests, which meant they were routinely granted. However, on June 13, 2024, the United States Supreme Court rejected those decisions, and instead ruled that federal courts must apply the same standard for the NLRB’s injunction requests as they do under federal law in general and specifically must conclude that the NLRB is “likely” to successfully prove an unfair labor practice. The Court’s decision in Starbucks Corp. v. McKinney will make it considerably more difficult for the Board to obtain injunctions going forward.
Background. The Board’s authority for requesting injunctions comes from Section 10(j) of the National Labor Relations Act (NLRA). That law states a federal district court may grant “such temporary relief … as it deems just and proper” while NLRB administrative proceedings are pending—a process that may take several years in some cases.
In the Starbucks case, multiple employees invited a television news crew to a Starbucks store in Memphis, after hours, to promote their union organizing effort. Starbucks later fired several of these employees for violating company policy—including some members of the union organizing committee. The union responded by filing unfair labor practice charges with the NLRB, claiming these terminations violated the employees’ right to unionize and discriminated against union supporters.
The NLRB investigated the union’s charges and concluded that they appeared to have merit, so it issued a formal complaint against Starbucks. The Board’s Regional Director then filed a petition in a Tennessee federal court to seek a preliminary injunction. Among other things, this injunction would have required Starbucks to reinstate the terminated employees, rather than waiting for the Board’s proceedings to conclude.
A federal district judge granted an injunction to the NLRB, and an appeals court upheld this ruling. Both courts followed a lenient standard that authorizes injunctions that are “just and proper” whenever “there is reasonable cause to believe that unfair labor practices have occurred.” Under this test, “reasonable cause” means only that the Board’s “legal theory” was “substantial and not frivolous.”
However, in most cases under other federal laws, the Supreme Court has established a tougher standard for granting injunctions, as stated in a 2008 case titled Winter v. National Resources Defense Council. The plaintiff must clearly establish it is “likely” to “succeed on the merits” of the claim and will “suffer irreparable harm” without a preliminary injunction. The plaintiff also must show an injunction is supported by “the balance of equities” and would be “in the public interest.” Similar standards are used by many state courts, including in California.
The Supreme Court’s Decision. Federal appellate courts were split on whether NLRB requests for injunctions under Section 10(j) are governed by the usual standards stated in the Winter case, or whether the far more generous standard used by the lower courts in the Starbucks case applies. All nine Supreme Court justices sided with Starbucks on this important question, with eight of them joining the majority opinion by Justice Clarence Thomas. Only Justice Ketanji Brown Jackson disagreed with the majority’s conclusion that the NLRB’s assessment on whether it is likely to win on the merits of its unfair labor practice charge is irrelevant to injunction requests by the Board. The Court unanimously agreed to send the case back to the lower courts to reconsider whether the Board is entitled to an injunction requiring Starbucks to reinstate the fired employees.
Takeaways for Employers. The Supreme Court’s decision in Starbucks basically preserves the status quo for California employers, because our Ninth Circuit U.S. Court of Appeals already had been applying the more stringent Winter standard to injunction requests by the NLRB. In other parts of the nation, however, it will be considerably more difficult for the NLRB to obtain preliminary injunctions against employers (or unions) alleged to have committed unfair labor practices.
On the other hand, the Starbucks decision does not impact NLRB unfair labor practice proceedings outside the context of injunction requests. Although courts will no longer defer to the Board on whether or not to grant injunctions, the law continues to give strong deference to the Board’s eventual decisions in unfair labor practice cases. In particular, if the Board were to find that Starbucks violated the NLRA when it terminated the employees involved in promoting union organizing, it would be very difficult for Starbucks to overturn such a decision in an appellate court.
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