06/14/2024: Supreme Court Clarifies Section 10(j) Preliminary Injunction Standard

The circuit split is over but also did not matter.

Starbucks Corp. v. McKinney, 23-367,  (Supreme Court)

Under Section 10(j) of the NLRA, while the formal NLRB process over an unfair labor practice is pending, the General Counsel is empowered to go straight into a federal district court to get a preliminary injunction against the employer.

What exactly the General Counsel must demonstrate in order for a court to issue a 10(j) injunction is not spelled out in the NLRA. As a result, different circuit courts came up with different tests, creating a “circuit split.” Yesterday’s Supreme Court decision resolved that split by declaring that, to secure a 10(j) injunction, the General Counsel must make a clear showing (1) that they are likely to succeed on the merits, (2) that they are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and that (4) an injunction is in the public interest.

Of the tests used by the circuit courts, this is the most strict, at least nominally. But in practice, I doubt it matters all that much. Perhaps a handful of 10(j) cases clear the lower “reasonable-cause” standard while not clearing this standard, but the vast majority of such cases either clear both or neither. Additionally, the number of 10(j) injunctions secured each year is limited first and foremost by the capacity of the General Counsel to actually bring these cases. For instance, last year, the General Counsel only brought seventeen of these cases.

Starbucks Corporation, JD-34-24, 06-CA-297994 (ALJ Decision)

The ALJ found that Starbucks violated Sections 8(a)(5) and (1) of the National Labor Relations Act by unilaterally implementing a shift coverage ratio policy in February 2023 that reduced the scheduled work hours of shift supervisors at its Greensburg, Pennsylvania store, without notifying the union and giving it an opportunity to bargain over the change.

Key points in the legal analysis:

• An employer violates 8(a)(5) and (1) by making unilateral changes to employees' terms and conditions of employment, unless it has an established past practice of doing so that employees could reasonably expect to continue. Sunoco, Inc. 349 NLRB 240, 244 (2007).

• The ALJ found Starbucks did not prove it had an established past practice of limiting shift supervisors' hours under the ratio policy before the union was certified in June 2022. At most, the policy existed before but was not followed during COVID.

• An employer cannot make unilateral changes based on a past practice that predates the union certification. Wendt Corporation, 372 NLRB No. 135 (August 26, 2023); Amsterdam Printing & Litho Corp., 223 NLRB 370, 372 (1976).

The ALJ dismissed allegations that Starbucks managers made coercive statements and held mandatory meetings with employees before the June 2022 union election in violation of 8(a)(1). He found these allegations moot given the union's certification and lack of evidence of later anti-union statements.

The ALJ also dismissed 8(a)(3) allegations that Starbucks discriminated against employee Dakota Toughlian based on her union activity, finding insufficient evidence that any adverse actions were motivated by anti-union animus rather than other factors. He concluded Starbucks did not unlawfully deny Toughlian Weingarten representation rights during an investigatory interview.

J.O. Mory, Inc., JD-36-24, 25-CA-309577 (ALJ Decision)

The ALJ found that J.O. Mory, Inc. (Respondent) violated Sections 8(a)(1) and (3) of the National Labor Relations Act by firing employee David McClure because he was a union salt, and 8(a)(1) by maintaining employment agreement provisions that chill employees from engaging in protected activities.

Key points in the legal analysis:

Discharge of McClure:

• Under Wright Line, 251 NLRB 1083 (1980), the General Counsel must show protected activity, employer knowledge, and animus. The burden then shifts to the employer to prove it would have taken the same action absent the protected activity.

• McClure engaged in protected activity as a union salt. Respondent had knowledge when he announced he was a union organizer.

• Respondent's claim it fired McClure for lying about working for non-union employer Deem was pretext, as he was qualified and a good worker. Surrounding facts, including timing of the discharge one day after revealing himself as a salt, showed union animus was the true motive.

• Cases finding unlawful discharges of salts who lied to conceal union affiliation: Leiser Constr., LLC, 349 NLRB 413 (2007) (false claim worked for non-union employer); Solvay Iron Works, Inc., 341 NLRB 208 (2004) (used fake name).

Employment agreement provisions:

• Under Stericycle, 372 NLRB No. 113 (2023), a facially neutral rule is presumptively unlawful if it chills Section 7 activity, unless the employer proves it has a legitimate business interest that can't be served by a narrower rule.

• Provisions barring involvement with a competitor, soliciting employees to leave, and requiring disclosure of job offers chill protected activities like salting.

• Respondent did not show the provisions serve a legitimate business interest.

"Union Free Statement":

• Statement that unionization brings workplace hostility and could hurt business and customer relationships was an unlawful threat absent objective facts. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

• Direction to report coercive union card solicitations was unlawful as it encompassed protected solicitations. Bloomington-Normal Seating Co., 339 NLRB 191 (2003).

• Requiring handbook acknowledgment agreeing to comply with the Statement under threat of termination made it an unlawful condition of employment.

BRIDGEWELL, INC., 01-RC-336421 (Regional Election Decision)

The Regional Director found that the Employer failed to establish that the petitioned-for Registered Nurses (RNs) are statutory supervisors under Section 2(11) of the National Labor Relations Act and therefore included them in the voting unit for a union representation election.

Key points in the legal analysis:

• The party asserting supervisory status bears the burden of proving it by a preponderance of the evidence. Kentucky River Community Care, 532 U.S. 706 (2001).

• Mere paper authority, job descriptions, and conclusory statements are insufficient to establish supervisory status. Golden Crest Healthcare Center, 348 NLRB 727 (2006) (job descriptions and titles alone do not demonstrate supervisory authority).

• The Employer failed to show the RNs have authority to hire or effectively recommend hiring of LPNs. Mere participation in interviews is insufficient where admitted supervisors also participate. The Republican Co., 361 NLRB 93 (2014) (interview participation alone does not show effective recommendation of hire where supervisors also interview candidates).

• The Employer failed to prove the RNs' involvement in evaluating LPNs' clinical competencies leads to discipline. The ability to report substandard work is not enough to show supervisory status absent evidence the reports directly affect job status or wages. Tracy Auto, L.P., 372 NLRB No. 101 (2023).

• Secondary indicia like higher pay and different hours are insufficient to establish supervisory status absent possession of primary Section 2(11) indicia. Golden Crest Healthcare Center, 348 NLRB 727 (2006).

Based on this analysis, the Regional Director directed a mail ballot election in the petitioned-for unit, with professional and non-professional employees voting in separate groups on whether they wish to be represented by the Union and included in the existing bargaining unit.