The New National Standard for Temporary Injunctions in Labor Disputes 

For decades, the National Labor Relations Board (Board) has had a better chance of foregoing its own administrative processes and obtaining immediate relief against employers and unions. The Supreme Court put a stop to that this summer. In a landmark decision, the Court leveled the playing field. The Board now faces the same standards that apply to all litigants seeking the extraordinary relief of a temporary injunction. 

History of Injunctions in Labor Disputes 

The injunction has a long history in labor relations. Before 1932, it was primarily used as a tool by employers to prevent employees from organizing. With the passage of the Norris-LaGuardia Act in 1932, Congress effectively outlawed injunctions in labor disputes. And in 1935, the National Labor Relations Act (NLRA) further curtailed court intervention in labor disputes [i]. But in 1947, with the Taft-Hartley amendments to the NLRA, Congress restored limited federal-court authority to issue temporary injunctions under Section 10(j). [i] 

The need for a mechanism to obtain interim relief in labor disputes is no different from the need for it elsewhere. When the speed with which harm is inflicted outpaces the inefficiencies inherent to the adjudicative process, any redress may come too late, and the harm incurred may be irreversible. In labor disputes, that time imbalance can be especially acute. 

That is because a party pursuing an unfair-labor-practice claim faces a long road through the administrative process. The complaining party must first file a charge with the Board, alleging an unfair labor practice has occurred. At that point, the Board’s authority kicks in, the appropriate regional director launches an investigation, and, if the charges appear meritorious, issues a complaint. That complaint is brought first before an administrative law judge, with an automatic right of appeal to the Board. After the Board makes a final determination, either party may appeal to a federal circuit court, or the Board may seek enforcement of its order. [ii] A final, enforceable determination frequently takes years to reach. 

Before the adoption of Section 10(j), the Board had to wait until the next-to-final step of petitioning a circuit court of appeals for enforcement of its order before it could seek equitable relief. [viii] Because the process to arrive at that step is so lengthy and substantial, irreparable injury could occur by the time the Board obtained a circuit-court ruling. 

Section 10(j) provides a mechanism for the Board to impose interim relief pending the outcome in the administrative process. Under Section 10(j), the Board need only investigate the charge and file a complaint before seeking interim relief. [viii] In other words, the defending party typically has no right to an evidentiary hearing or to the benefit of cross-examination before facing the possibility of immediate consequences. [iii] 

Although Section 10(j) refers to the power of the United States Courts, the Board has long contended that Section 10(j) injunctions exact a lower burden than typical injunctive relief. Since its adoption, courts diverged on this point in their interpretation and application of Section 10(j). Among other points of contention, courts disagreed about which factors applied to evaluate the merits of a petition. The Third, Fifth, Sixth, Tenth, and Eleventh Circuits adhered to a two-prong test that weighed only whether there was reasonable cause to believe that a violation of the NLRA had occurred and whether relief was “just and proper.”[vii]That two-prong test relied heavily on the notion that the Board deserved considerable deference in seeking relief because it was in the best position to determine whether such relief was warranted. The approach relied on the Board’s investigatory role and labor-law expertise, and permitted it to circumvent the more traditional, stringent equitable requirements for an injunction.  

At least two circuit courts tried to reconcile Section 10(j) with equitable principles and adopted a hybrid approach, by which they extrapolated the “just and proper” prong to include the remaining factors of the more traditional test applicable to preliminary injunctions. The remaining circuits applied the traditional four-part test that has governed temporary injunctions in the U.S. for hundreds of years. That four-factor test, known colloquially as the Winter test, is set forth in the 2008 Supreme Court decision Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). [v]  

Winter involved an environmental-protection dispute in which the Supreme Court clarified that a plaintiff seeking interim relief must establish not only that they might suffer irreparable harm, but that they are likely to suffer irreparable harm. The Winter test thus reinforced that temporary injunctions are an extraordinary and drastic remedy which may never be awarded as of right. 

The “Memphis 7” Case and the Supreme Court’s Ruling 

In late 2023, Starbucks challenged the legitimacy of the two-prong test when it appealed a Board injunction in the now-famous “Memphis 7” case. The dispute arose from an incident in which several employees invited a news crew into a Memphis Starbucks store for a media event to promote their union-organizing efforts. The event occurred after hours, which was a violation of company policy. The employees were fired for the violations, after which the union with which they had been coordinating filed unfair-labor-practice charges against Starbucks. The Board investigated the charges and issued a complaint. [ii] 

While the case was making its way through the lengthy adjudication process, the Board pursued a Section 10(j) injunction. The district court, applying the two-part test, granted the injunction—notably concluding, among other things, that the Board need only present a non-frivolous theory of a violation and deferring to the Board’s contentions about harm. On appeal, the Sixth Circuit applied the same standard and affirmed. [iii] 

The Supreme Court accepted the case to review the question of whether the Winter standard should apply to Section 10(j) injunctions. In early 2024, the inimitable Lisa Blatt—who has won 86% of the 50 Supreme Court cases she has argued to date—gave a master class in oral argument before the Court in support of Starbucks. [ix] Ms. Blatt walked the justices through the history of injunctions in the U.S., the equitable considerations at stake, and the need for national continuity for defendants facing the Board’s outsized deference. She argued, and the Supreme Court agreed, that the Board was entitled to no more deference than any other litigant seeking the extraordinary relief of a temporary injunction prior to a full adjudication on the merits. [iii] 

Countless statutes provide litigants with the option of seeking temporary relief, and the traditional four-factor test applies to most of them. Only where Congress has specifically included language to alter the test has a different standard been applied. Despite the Board’s urging, nothing in the language of the NLRA led the justices to believe that Congress intended a different standard to apply to Section 10(j) injunctions. [ii] 

In an 8-1 decision issued on June 13, 2024, with only Justice Jackson concurring in part and dissenting in part, the Supreme Court agreed with Starbucks. [ii] The new national standard for all interim relief pursuant to Section 10(j) of the NLRA conforms with the traditional four-factor test for temporary injunctions, generally.  

The Board, like any other litigant, must now prove that they are likely to succeed on the merits of their case; they are likely to suffer irreparable harm in the absence of interim relief; the balance of equities tips in their favor; and an injunction is in the public interest. 

In the summer of 2021, Board General Counsel Jennifer Abruzzo identified Section 10(j) injunctions as one of the most important tools available to enforce workers’ rights under the NLRA. She vowed to aggressively seek them. At that time, the Board reported a 100% success rate on the Section 10(j) injunctions it pursued in 2020, including settlements. [vi] 

Following the Supreme Court’s epic correction of the standard, GC Abruzzo doubled down on her position, stating that the Court’s ruling had no effect on her intention to continue aggressively seeking Section 10(j) injunctions. [vii] If nothing else, the Court’s ruling will likely adjust the Board’s rate of success, if not its efforts to short-circuit the administrative process through this drastic remedy. 

Endnotes

[i] Hoffman v. Inn Credible Caterers, Ltd., 247 F.3d 360 (2nd Cir. 2001) 

[ii] Starbucks Corp. v. McKinney, 144 S. Ct. 1570 (2024) 

[iii] Petitioner’s Brief, Starbucks Corp. v. McKinney, No. (22-5730) (U.S. Supreme Court, 2024) 

[iv] Lomax v. Longmont United Hosp., 2023 U.S. Dist. LEXIS 205732 (D. Colo. Nov. 16, 2023) 

[v] Winter v. NRDC, Inc., 555 U.S. 7 (2008) 

[vi] Memorandum GC 21-05, August 19, 2021, Utilization of Section 10(j) Proceedings.pdf  

[vii] Memorandum GC 24-05, July 16, 2024, General Counsel Jennifer Abruzzo Releases Memorandum on Importance of 10(j) Injunctions | National Labor Relations Board (nlrb.gov) 

[viii] Levine v. C & W Mining Co., 610 F.2d 432, 436-437 (6th Cir. 1979) (citing Senate Report No. 105, 80th Congress, 1st Sess., 27 (9147).  

[ix] Lisa Blatt – Williams & Connolly LLP (wc.com) 

ABOUT THE AUTHOR

Monica Frascona is a litigator and labor and employment attorney in the Denver office of Foley Hoag LLP. She specializes in breaking down complex issues for everyday application to employers’ business practices. As a former prosecutor in Southern California, and civil litigator in Los Angeles, Monica has represented clients in state and federal court in disputes spanning a wide range of issues and industries. Since joining the Colorado Bar, she has been actively involved in pro bono work, assisting vulnerable migrant populations. When she’s not practicing law, Monica enjoys spending time in nature with her family.