U.S. Supreme Court Reaffirms Traditional Equitable Principles for Preliminary Injunctions under Section 10(j) of the National Labor Relations Act

Rob Thomas, Of Counsel

On May 8, 2024, in the Starbucks Corp. v. McKinney litigation, the United States Supreme Court resolved federal Courts of Appeals' split on the standard that the National Labor Relations Board (the “Board”) must satisfy when seeking a federal court preliminary injunction to enjoin the alleged unfair labor practices of employers under Section 10(j) of the National Labor Relations Act (“NLRA” or the “Act”).[1]  In a near-unanimous opinion,[2] the Court held that the Board must demonstrate the necessity for Section 10(j) injunctive relief under traditional equitable principles—including by demonstrating a likelihood of success on the merits and a threat of irreparable harm that would occur absent injunctive relief.     

Starbucks Corp. v. McKinney – Background

In 2022, certain Starbucks employees at one of the company’s locations in Memphis, Tennessee, announced plans to unionize, and the employees invited the local news to visit the store after hours in order to promote their unionization efforts.  Once store management learned of the event, the company fired several employees who were involved.  The union working with the employee organizers filed unfair labor practice charges, and the Board issued a complaint against Starbucks for interfering with the employees’ right to organize under the Act. 

As germane to the Court’s opinion, the Board also filed a Section 10(j) petition in federal District Court seeking injunctive relief to remedy the alleged unfair labor practices—including reinstatement of the affected employees.  Applying precedent from the Court of Appeals for the Sixth Circuit, the District Court granted the requested injunctive relief because it found that the Board satisfied a two-part test to show that 1) there was reasonable cause to believe that unfair labor practices had occurred (meaning that the Board’s legal theory was substantial and not frivolous), and; 2) injunctive relief was just and proper because it was necessary to return the parties to the status quo pending the Board’s proceedings on the complaint.  The Sixth Circuit affirmed the District Court’s order, and the Supreme Court granted certiorari to resolve whether the two-part standard articulated by the Sixth Circuit was supported by law or the Act itself. 

The Court’s Opinion: No Special Treatment for Injunctions Under Section 10(j)

In his opinion, Justice Thomas first noted that preliminary injunctions are, historically, extraordinary remedies that are never awarded as a matter of right, and that the “default rule” under federal law is that a party seeking a preliminary injunction must demonstrate 1) it is likely to succeed on the merits of its claim; 2) the party is likely to suffer irreparable harm absent the requested injunctive relief; 3) the balance of equities favors the moving party; and 4) the requested relief is in the public interest.  Justice Thomas noted that while Congress did expressly alter this standard in certain statutory contexts,[3] it did not do so within the Section 10(j) context, which only grants federal courts the power to issue temporary injunctive relief pending an unfair labor practice complaint before the Board when it is otherwise “just and proper.”  Thus, the Court saw no reason or justification to deviate from established equitable principles in the Section 10(j) context, as the District Court and the Court of Appeals for the Sixth Circuit did.

The Board argued that because Congress gave the Board itself the authority to resolve unfair labor practice complaints (to which courts must give substantial deference on appeal), then courts are likewise obligated to give deference to the Board’s preliminary review of the facts, law, and equities when seeking injunctive relief under Section 10(j).  The Court rejected this logic, and saw no reason to lessen the Board’s burden to show the necessity of preliminary injunctive relief in court simply because the Board would ultimately decide the unfair labor practice complaint on the merits.[4]     

Employer Considerations

The Court’s decision marks a significant defeat for labor organizations and the Board itself, particularly since unfair labor practice charges may take years to be resolved on the merits.  The Court’s decision in McKinney lessens the possibility of employers being compelled by federal courts to act (or not act) in a manner to remedy alleged unfair labor practices when such practices are simply alleged, rather than substantially proven.  In essence, the Court has put the Board on the same playing field as any other party seeking preliminary injunctive relief in federal court, and the burden to obtain such relief remains exceptionally difficult to satisfy.

[1] 29 U.S.C. § 160(j).

[2]The Court’s opinion is available at https://www.supremecourt.gov/opinions/23pdf/23-367_f3b7.pdf. 

[3]For example, the NLRA itself contemplates injunctions against union strikes and lockouts, but the government must additionally prove that the strike or lockout would affect the entire industry or a substantial portion thereof. Conversely, the Lanham Act grants plaintiffs seeking injunctions of alleged trademark violations a rebuttable presumption of irreparable harm when there is a finding of a likelihood of success on the merits. 

[4] The Court also noted that the standard articulated by the Sixth Circuit would render preliminary injunctions under Section 10(j) nearly automatic, given that the Board need only show that it’s theory of the case is “substantial and not frivolous” in order to secure injunctive relief, and nothing in Section 10(j) itself warrants such a departure from traditional equity.