The Supreme Court recently standardized the procedure governing how federal courts issue injunctions, or court orders directing a company to do or stop doing something, in National Labor Relations Board (NLRB) cases. After the decision, courts should not issue an injunction unless the Regional Office of the NLRB shows that the full NLRB will likely rule that the company committed an unfair labor practice. These court orders are known as 10(j) injunctions, from section 10(j) of the National Labor Relations Act (NLRA).
As a practical matter, this is not a significant change, although the Supreme Court’s standardized procedure is more demanding than the procedure a few courts were previously applying.
Under the less demanding procedure, the region only had to make a reasonable legal argument that the company violated the NLRA to convince courts to issue injunctions. In other words, the less demanding procedure did not require the region to show that the NLRB would likely ultimately rule against the company, while the standardized procedure does require the region to show that.
The Supreme Court’s ruling will not result in a significant change because:
• For most courts, the Supreme Court decision makes either no change at all or a minimal change. Five out of seven courts of appeals already applied a substantially similar procedure prior to the decision.
• Regions should be in a position to easily meet the new standardized procedure requirements because the NLRB only petitions for 10(j) injunctions in the strongest cases. Before a region can request a court to issue an injunction, the NLRB carries out a rigorous, thorough process in which, first, the region must make a strong case to the General Counsel of the NLRB that an injunction is appropriate. Then, the General Counsel must make a strong case to the full NLRB. Only if the General Counsel persuades the full NLRB that an injunction is warranted does the NLRB authorize the region to file for an injunction. Thus, the NLRB’s process ensures that, even prior to the Supreme Court decision, regions had strong cases to meet the new standardized requirements, even in the courts that previously applied the less demanding procedure.
• The three liberal Justices – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – all agreed with the standardization of the rule. These Justices would have strongly dissented in a case that seriously harmed workers.
The case is Starbucks v. McKinney, 602 U.S. slip opinion (June 13, 2024). If you have any questions regarding this case, contact George Wiszynski at gwiszynski@ufcw.org.