U.S. Supreme Court Weakens NLRB's Injunctive Powers Against Employers

In a big win for employers and a loss for unions, the U.S. Supreme Court unanimously held that the National Labor Relations Board (NLRB) is to be held to the same standards as other litigants when it files for injunctive relief pursuant to Section 10(J) of the National Labor Relations Act (NLRA). In so doing, the Supreme Court rejected more lenient standards, making it much harder for the NLRB  to win injunctions against employers in the federal courts.

Under the NLRA, the NLRB is authorized to seek temporary injunctions against employers and unions to stop alleged unfair labor practices from continuing to occur while a case is being litigated in administrative courts. In the past, the analysis that courts used to determine whether a preliminary injunction was appropriate was murky, with different circuit courts employing different tests. However, in Starbucks Corp. v. McKinney, U.S., No. 23-367, 6/13/24, the Supreme Court confirmed that the factors used to evaluate whether the NLRB is entitled to a preliminary injunction are the same as those used to evaluate other litigants.

Specifically, the Supreme Court employed the four-part test for granting a preliminary injunction that it previously established in Winter v. Natural Resources Defense Council. The factors include:

• The NLRB’s likelihood of success on the merits.
• The chance of irreparable harm if the temporary injunction is not granted.
• The parties’ interests and
• The public’s interests.

This four-factor test will make it more difficult for the NLRB to succeed in bringing a claim for a Section 10(j) injunction.

Although the decision was unanimous, Justice Ketanji Brown Jackson filed a concurrence. She argued that courts should give deference to the NLRB on whether the agency is likely to succeed on the merits of its claim. Justice Jackson reasoned that Congress intended to give the NLRB deference as experts on matters relating to labor and therefore the courts should give deference to the agency as well.

This decision is positive for employers, as the NLRB will be held to a uniform standard for proving that it is entitled to a preliminary injunction.

Please contact Caroline Perlis or any member of the Phelps Labor and Employment team if you have any questions about this recent development.