June 18, 2024 – On June 13, 2024, the United States Supreme Court issued an 8-1 decision in Starbucks Corp. v. McKinney, 602 U. S. ____ (2024), which unified the legal standard nationwide for a Federal district court to grant a preliminary injunction under §10(j) of the National Labor Relations Act (29 U.S.C. § 160(j), “NLRA”) based on allegations of unfair labor practices.

NLRA §10(j) provides the General Counsel of the National Labor Relations Board (“NLRB”) a powerful remedy while the administrative proceedings are pending. Specifically, the NLRB’s prosecutors may seek a preliminary injunction to reinstate allegedly unlawfully discharged employees, or to enjoin alleged changes to working conditions motivated by unlawful animus against union activity, before any actual findings of fact or order of the NLRB 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 district court “to grant . . . such temporary relief . . . as it deems just and proper.” The NLRB traditionally pursues this temporary remedy so that the remedial purpose of the much longer administrative law process under §§10(b),(c) is not frustrated (and can run its course, often taking many months if not years).

Justice Clarence Thomas, writing for the majority, explained that when the Supreme Court interprets a statute, the Court will not “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 off a simpler/more permissive standard for the NLRB to meet. The general rule for an injunction, however, requires a party to make a clear showing of the four criteria that are found in the case of Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7 (2008):  (1) the NLRB is “likely to succeed on the merits;” (2) affected employees are “likely suffer irreparable harm;” (3) “the balance of equities tips in [the NLRB’s and/or employees’] favor;” and (4) “an injunction is in the public interest.”  According to the Supreme Court, application of the less demanding two-part test used by the Third, Fifth, Sixth, Tenth and Eleventh 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 Court clarified that §10(j) requires the NLRB to show the four criteria needed to have a preliminary injunction granted.

The practical take-away is that the NLRB may be more selective in pursuing the extraordinary remedy of an injunction, after steadily trying to increase its use of §10(j) over the past decade. Notably, it does not mean the Starbucks employees who were terminated, and then were ordered to be temporarily reinstated by the United States District Court for the Western District of Tennessee, are now out of the job again pending the outcome of the NLRB proceedings.  Instead, the Court’s opinion simply directs that court to apply the more exacting standard in determining if §10(j) relief was warranted.