In a win for employers facing unfair labor practice charges, the Supreme Court’s holding in Starbucks v. McKinney makes it more difficult for the National Labor Relations Board (NLRB) to obtain Section 10(j) injunctions.
Section 10(j) of the National Labor Relations Act (NLRA) provides the NLRB the authority to petition “any United States district court for appropriate temporary relief,” which the court may grant “as it deems just and proper,” during the pendency of unfair labor practice proceedings. This process has often allowed the NLRB to obtain temporary injunctions against employers before hearings on the underlying unfair labor practice occur.
In Starbucks v. McKinney, several Memphis-based Starbucks employees held a media event at their store in an attempt to bolster their unionizing efforts. The employees were subsequently discharged for violating company policy. The union coordinating with the employees then filed unfair labor practice charges with the NLRB, leading the NLRB to issue a complaint against Starbucks.
The NLRB then filed a petition for a Section 10(j) preliminary injunction in the U.S. District Court for the Western District of Tennessee that sought, among other things, reinstatement of the terminated employees to their prior positions pending litigation of the underlying unfair labor practice complaint. In determining whether to grant the relief, the District Court applied a two-part test that had been adopted by the Sixth Circuit, whereby the NLRB needed only to establish that (a) there was “reasonable cause to believe that unfair labor practices have occurred,” and (b) temporary injunctive relief was “just and proper.” Applying that test, the District Court granted the NLRB its requested injunction, and the Sixth Circuit subsequently affirmed.
The Supreme Court granted review. Writing for the eight-member majority of the Court, Justice Clarence Thomas rejected the Sixth Circuit’s two-step test for determining whether a Section 10(j) injunction should issue. The Court concluded that, absent a clear command from Congress, which is lacking in the National Labor Relations Act, courts determining whether to grant equitable relief must apply the traditional, four-factor test articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Under that test, a Section 10(j) injunction is only available when the plaintiff clearly shows: (1) there is a likelihood of success on the merits; (2) there is a likelihood of irreparable harm absent preliminary relief; (3) the balance of equities favors an injunction; and (4) an injunction is in the public interest.
In issuing Starbucks v. McKinney, the Supreme Court has resolved the split that had developed in the circuit courts of appeal regarding whether courts should apply a two- or four-factor test in determining whether to grant a Section 10(j) injunction. There is now no doubt that the more rigorous, four-factor test applies. Rather than simply demonstrating that reasonable causes exist to believe that an employer committed an unfair labor practice and that relief is just and proper, the Board must be able to show, among other things, that it is likely to succeed on the merits. Moreover, as Justice Jackson suggested in her dissent, courts no longer need to defer to the NLRB’s view of the facts and theory of the case. Rather, courts must conduct an exacting search based on the evidence presented.
Section 10(j) injunctions remain available to the NLRB to attempt to prevent unfair labor practices pending resolution of an unfair labor practices complaint. Whether, and to what extent, Starbucks v. McKinney deters the NLRB from seeking Section 10(j) injunctions remains to be seen. It seems likely, though, that the Supreme Court’s decision will make it more difficult for the NLRB to obtain such relief on a going forward basis, particularly in jurisdictions that had previously adopted the deferential, two-part test for determining the appropriateness of injunctive relief.
