The United States Supreme Court ruled on June 13 in a case that has been of interest to observers of labor policy because it has wide implications for employers. The case involves Starbucks, and it tightens the standard federal courts must use when deciding whether to issue a so-called “10(j) injunction” at the behest of the National Labor Relations Board (NLRB). [The term 10(j) refers to the section of the National Labor Relations Act that permits the agency to seek such an injunction.]
As this blog recounted previously, the controversy began in February 2022, when Starbucks laid off seven workers for entering their Tennessee store after hours and allowing a news crew inside, all without authorization and in violation of corporate policy. Five of those workers were actively trying to unionize their store. Following that, the NLRB stepped in and obtained a 10(j) injunction compelling the company to rehire the workers while the case proceeded through the agency’s usually very lengthy administrative proceedings.
In determining whether the NLRB was entitled to a preliminary injunction, the federal district court applied a two-part test used in the Sixth Circuit, which asks whether “there is reasonable cause to believe that unfair labor practices have occurred” and whether injunctive relief is “just and proper.” That standard made it pretty easy for the NLRB to obtain an injunction, and the Sixth Circuit upheld the lower court's decision to issue it.
While some other circuits have used the same standard, not all of them have. The rest have used a traditional four-factor test that includes whether the NLRB has a likelihood of success on the merits, whether it faces irreparable harm, whether the balance of hardships is in the agency’s favor, and whether an injunction is in the public interest. The use of these different standards created a so-called “circuit spit,” and Starbucks challenged the more lenient standard used in its case and asked the Supreme Court to resolve the split.
The U.S. Chamber filed an amicus brief urging the Court to do so as well. After the Court agreed to consider the case in January, the U.S. Chamber similarly filed a brief forcefully urging it to reject the Sixth Circuit’s watered-down standard for issuing 10(j) injunctions.
With last week’s ruling, which did just that, the Supreme Court has established the proper standard federal courts must use when considering the NLRB’s injunction requests. Given that the agency has all but weaponized the use of Section 10(j) in recent years, that is good news for employers.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
