Supreme Court Toughens Test For NLRB To Obtain Injunctions Against Employers

The U.S. Supreme Court implemented a stricter four-factor test that courts must apply when the National Labor Relations Board (NLRB) seeks an injunction against an employer allegedly engaging in unfair labor practices (ULPs). The case is Starbucks Corp. v. M. Kathleen McKinney, case number 23-367, U.S. Supreme Court.

Section 10(j) of the National Labor Relations Act (NLRA) authorizes the NLRB to seek injunctive relief against employers for committing serious ULPs while prosecutors challenge them in the NLRB's internal courts. The NLRB seeks only a few 10(j) injunctions among the thousands of cases it routinely handles yearly.

In McKinney, the NLRB successfully sought a 10(j) injunction requiring Starbucks to rehire seven workers fired from a Memphis store during a union organizing campaign in 2022. A federal district court and a split panel of the U.S. Court of Appeals for the Sixth Circuit upheld the injunction. The Sixth Circuit was one of only a few circuits that relied on a two-factor test to determine whether the NLRB had "reasonable cause" to believe that an employer committed a ULP and it was "just and proper" for the Court to intervene.

On appeal by Starbucks, the Supreme Court ruled that federal district courts considering the propriety of such injunctions must apply the same standard as for other forms of injunctive relief, as outlined in the Court's 2008 ruling in Winter v. Natural Resources Defense Counsel to prove the necessity of an injunction. Therefore, district courts must analyze NLRB requests for 10(j) injunctions by considering the following four factors:

Whether the board is likely to succeed on the merits of the underlying case.
• Whether the board's power to fix the violation will be "irreparably harmed" without an injunction.
• The balance of the board's interest and the targeted employer's interest.
• Whether an injunction would serve the public interest.

The high Court's decision resolved conflicting decisions across the circuits with a uniform standard requiring the NLRB to show "substantial proof" to win 10(j) injunctions. Before this ruling, some circuits, like the Sixth Circuit, used a two-factor test; some already used the four-factor analysis outlined above, while others used a hybrid approach.

The NLRB conceded during oral arguments that the four-factor analysis applied but had pushed for a more lenient application of the factors that left the agency with some degree of discretion. However, the Court disagreed, finding that a "reasonable cause" test lowered the standard for seeking a preliminary injunction and gave too much deference to the NLRB's preliminary findings regarding the facts, law, and equities of the case. Under those circumstances, the Court continued, it would be "hard to imagine how the board could lose" a request for a 10(j) injunction.

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