Ian Hutchinson, Unsplash
A unanimous decision from the United States Supreme Court, issued on June 13, 2024, settles the split among the circuit courts concerning the factors to be considered by a court in considering a request by the National Labor Relations Board (“NLRB”) to obtain an injunction under Section 10(j) of the National Labor Relations Act (“NLRA”) against an employer during the pendency of NLRB administrative proceedings and raises the bar that must be satisfied by the NLRB for such injunctive relief
The decision in in Starbucks Corp. v. Mckinney, Regional Director of Region 15 of the NLRB, No. 23-367, was a highly anticipated opinion by parties on both sides of the labor aisle, unions, employers and the NLRB. The Supreme Court found that the United States District Court, District of Western Tennessee and the Sixth Circuit Court of Appeals improperly applied a two-factor “reasonable cause” test, instead of the traditional four-factor test articulated in Winter v. Natural Resources Defense Council, Inc, 555 U.S. 7 (2008), when granting and upholding the issuance of a §10(j) injunction against Starbucks. In so ruling, the Supreme Court resolve the circuit split as to the test to be applied when evaluating NLRB requests for §10(j) injunctions.
By way of background, this matter arose after several Starbucks employees announced plans to unionize and invited a news crew from a local television station to visit the store after hours to promote their unionizing efforts. Starbucks fired the employees for violating company policy. The NLRB filed an administrative complaint against Starbucks for engaging in unfair labor practices. Thereafter, the NLRB filed a petition pursuant to §10(j) of the NLRA seeking a preliminary injunction that would require Starbucks to reinstate the employees during the determination of the administrative complaint.
The District Court of Western Tennessee utilized the two-factor “reasonable cause” test, followed by the Third, Fifth, Sixth, Tenth, and Eleventh Circuits, in issuing the injunction. Notably, the two-factor test imposes a low burden upon the NLRB when seeking §10(j) injunctions, only requiring a court to determine 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. This standard requires courts to adopt the Board’s preliminary view of the facts, law, and equities – thereby giving the NLRB an advantage over its employer-adversaries. Given the minimal thresholds set forth in the two-factor test, the District Court granted, and the Sixth Circuit affirmed, the NLRB’s request for injunctive relief. 2022 WL 5434206, at *12 (WD Tenn., Aug. 18, 2022); 77 F. 44th 391, 400-401 (2023).
Starbucks petitioned for a Writ of Certiorari from the Supreme Court following the Sixth Circuit’s decision, arguing that the four-part standard for preliminary injunctions articulated in Winter v. Natural Resources Defense Council, Inc, 555 U.S. 7 (2008) is the proper standard for §10(j) injunctions – not the two-factor “reasonable cause” criteria. The Winter test requires a plaintiff to make a clear showing 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.” Winter, 555 U.S. at 20, 22. The First, Second, Fourth, Seventh, Eighth, and Ninth Circuits already use the Winters factors in §10(j) proceedings.
The Supreme Court agreed with Starbucks that the four-factor Winters test sets the correct legal standard for 10(j) proceedings and vacated the Sixth Circuit’s decision. The Supreme Court reasoned that without a clear command from Congress, courts must adhere to the traditional four-factor test prescribed by Winter because, “[n]othing in §10(j)’s test overcomes the presumption that the four traditional criteria govern a preliminary-injunction request by the Board.” Starbucks Corp., 23-367 at *6. The Supreme Court further found that by using the two-factor reasonable cause standard, “it is hard to imagine how the Board could lose [ . . .].”
This decision is a win for employers with employees in the Third, Fifth, Sixth, Tenth, and Eleventh Circuits, as the NLRB is now tasked with meeting the more burdensome Winters factors when seeking §10(j) injunctions in those jurisdictions.
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