Hunton Employment & Labor Perspectives

On June 13, 2024, the Supreme Court issued its opinion in Starbucks v. McKinney and, in doing so, clarified the standard applicable to the National Labor Relations Board’s (the “Board”) requests for preliminary injunctions under Section 10(j) of the National Labor Relations Act (the “Act”). In an 8-1 opinion authored by Justice Clarence Thomas, the Court held that the four-factor test applicable to preliminary injunctions in other contexts and articulated in Winter v. Natural Resources Defense Council, Inc., governs requests for preliminary injunctive relief under Section 10(j).

As discussed in our previous article, the issue came before the Court after a federal district court granted the Board’s request for a Section 10(j) injunction requiring Starbucks to reinstate several employees. Those employees had been terminated because they allowed a news crew into a store after hours in order to promote their effort to unionize. Starbucks appealed the preliminary injunction and argued that the district court incorrectly applied a standard that only required the Board to establish that “there is reasonable cause to believe that unfair labor practices have occurred” and that injunctive relief is “just and proper.” Starbucks argued that the Board should have to meet the higher, more exacting standard used to obtain a preliminary injunction in non-labor contexts.

The Supreme Court agreed with Starbucks.  The Court first noted that nothing in the text of Section 10(j) indicates that Congress intended for the Board’s burden under Section 10(j) to be lower than the burden required under Winter for other preliminary injunctions. The Court further observed that the “reasonable cause” standard used by the district court granted too much deference to the Board, noting that “it is hard to imagine how the Board could lose under the reasonable-cause test if courts deferentially ask only whether the Board offered a minimally plausible legal theory, while ignoring conflicting law or facts.”  As a result of this decision, in order to obtain Section 10(j) relief, the Board will now be required to show that (1) the Board is likely to succeed on the merits; (2) the Board’s ability to remedy the violation will be “irreparably harmed” if a preliminary injunction is not granted; (3) the balance of equities tips in the Board’s favor; and (4) an injunction would serve the public interest.

Justice Ketanji Brown Jackson wrote separately, concurring in the judgment but dissenting in part. Justice Jackson agreed that the four-factor Winter test should govern, but her dissent argued that the context of the Act establishes that the Board should be given more deference on its determination of the likelihood of success on the merits. The majority clearly disagreed.

The Starbucks decision ushers in a new, nationwide standard for Section 10(j) injunctions and replaces what had previously been a variety of differing standards across the federal circuits.  As a result, employers now have clarity and security in the fact that the extraordinary equitable remedy of a preliminary injunction will only be issued if the Board can demonstrate a likelihood of success on the merits (both factually and legally) and meet the strict irreparable harm standard.