07/18/2024: GC Responds to Supreme Court Decision on 10(j) Injunctions
No summary judgment for Strippers United.
GC 24-05 Section 10(j) Injunctive Relief and the U.S. Supreme Court’s Decision in Starbucks Corp. v. McKinney, GC 24-05 (GC Memo)
This memorandum from the General Counsel of the National Labor Relations Board (NLRB) addresses the Supreme Court's decision in Starbucks Corp. v. McKinney, which sets a uniform standard for Section 10(j) injunctive relief under the National Labor Relations Act (NLRA).
Background:
Section 10(j) of the NLRA empowers the NLRB to seek injunctive relief from federal courts to prevent unfair labor practices and protect employees' Section 7 rights.
The NLRB has long used this tool to ensure prompt and effective enforcement of the NLRA, particularly to protect workers' rights to unionize and engage in concerted activity.
Prior to McKinney, circuit courts had differing standards for granting Section 10(j) injunctions, with some applying a two-part test and others applying the traditional four-factor test for preliminary injunctions.
Supreme Court Decision in Starbucks Corp. v. McKinney:
The Supreme Court adopted the four-factor test articulated in Winter v. Natural Resources Defense Council, Inc., which requires a petitioner to show:
Likelihood of success on the merits
Likelihood of irreparable harm in the absence of an injunction
Balance of harms favors injunctive relief
Public interest supports the injunction
The Court rejected the two-part test as being too lenient and requiring only "minimally plausible" legal theories, potentially ignoring conflicting facts or law.
Implications for NLRB Enforcement:
The General Counsel emphasizes that the McKinney decision does not change the NLRB's approach to seeking Section 10(j) injunctive relief.
The NLRB continues to seek such relief only in cases with strong legal theories, a thorough evaluation of factual conflicts, and careful consideration of any legal complexities.
The NLRB has extensive experience litigating Section 10(j) injunctions under the four-factor test, and Regions have a high success rate in obtaining relief.
The Injunction Litigation Branch (ILB) will provide ongoing guidance to Regional offices to ensure they are equipped to argue effectively under the four-factor standard.
Conclusion:
The General Counsel expresses confidence that the NLRB will continue to successfully utilize Section 10(j) injunctions to protect employees' rights under the NLRA, despite the change in the legal standard set by McKinney.
21st Century Valet Parking LLC d/b/a Star Garden Enterprise, 373 NLRB No. 76, 31-CA-291825 (Published Board Decision)
This NLRB decision addresses a motion for default judgment filed by the General Counsel against 21st Century Valet Parking, LLC d/b/a Star Garden Enterprise (Respondent). The motion stemmed from an alleged breach of an informal settlement agreement reached between the Respondent and Actors' Equity Association (Union), Lindsey Normington, and Strippers United Inc.
Legal Analysis:
The decision hinges on the application of the default judgment standard, which requires the General Counsel to prove the absence of any genuine issues of material fact regarding the Respondent's breach of the settlement agreement.
The Board concluded that a genuine issue of material fact existed in this case, preventing a final determination on whether the settlement agreement was breached. This factual dispute centered on the Respondent's alleged failure to restore the status quo ante as it existed prior to the closure of Star Garden. The General Counsel argued that the Respondent's actions did not sufficiently restore the pre-closure conditions, while the Respondent maintained that its actions were in full compliance with the agreement's terms.
Based on this unresolved factual dispute, the Board denied the General Counsel's Motion for Default Judgment. The case was remanded to the Regional Director for Region 31 to schedule a hearing before an administrative law judge. This hearing will focus solely on determining whether the Respondent fully complied with the settlement agreement, thus potentially leading to the dismissal of the complaint.
Key Cases Cited
ThyssenKrupp Stainless USA, LLC, 362 NLRB 621 (2015) - The Board denied a default judgment motion where genuine issues of material fact existed regarding whether a settlement agreement had been breached.
Vocell Bus Co., 357 NLRB 1730, 1731 (2011) - The Board denied a default/summary judgment motion due to a factual dispute about noncompliance with a settlement.
International Longshoremen's Association, Local 1526 (Florida International Terminals), JD-43-24, 12-CB-299858 (ALJ Decision)
The case involves charges filed by Tony L. Williams and Lisa Datiste against the International Longshoremen's Association, Local 1526 (the Union), alleging violations of Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (NLRA). The primary issues are the Union's alleged breach of its duty of fair representation in handling Williams' seniority claim and threats made by Union President Johnnie Dixon against members for filing charges or testifying against the Union.
Legal Analysis
The ALJ applied both the duty-of-fair-representation framework and the Wright Line analysis to determine if the Union's actions were unlawful.
Duty of Fair Representation: An exclusive bargaining representative must make an honest effort to serve the interests of all members without hostility. A union breaches this duty when its conduct is arbitrary, discriminatory, or in bad faith.
Arbitrary Conduct: Dixon failed to notify Williams of the scheduled seniority hearings, provided misleading reasons for the denial of Williams' seniority claim, and did not inform him of his right to appeal.
Bad Faith: Dixon's actions demonstrated bad faith, particularly in delaying the resolution of Williams' seniority claim and providing inconsistent and evasive testimony regarding his efforts to assist Williams.
Wright Line Analysis: The General Counsel needed to show that Williams' protected activities (testifying against Dixon) were a motivating factor in the Union's adverse actions. This was demonstrated by:
Protected Activity and Knowledge: Williams testified against Dixon in a previous Board hearing, which is a protected activity under the NLRA.
Union Animus: Dixon made several threatening statements indicating retaliation against members who filed charges or testified against the Union.
The Respondent failed to provide sufficient evidence that the same actions would have been taken regardless of Williams' protected activities.
The ALJ concluded that the Union violated Sections 8(b)(1)(A) and 8(b)(2) by failing to represent Williams fairly and making retaliatory threats. The Union was ordered to cease such practices, make Williams whole for any losses, and take affirmative actions to ensure compliance with the NLRA.
Key Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing discrimination cases under the NLRA.
Vaca v. Sipes, 386 U.S. 171 (1967): Defined the duty of fair representation standard for unions.
NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, Local 22, 391 U.S. 418 (1968): Held that coercion used to discourage access to NLRB processes is beyond legitimate union interests.
Nash v. Florida Industrial Commission, 389 U.S. 235 (1967): Recognized the fundamental policy that persons with information about unfair labor practices should be free from coercion against reporting them to the NLRB.
Providence Health and Services - Oregon d/b/a Providence Benedictine Home Health, 19-RC-342302 (Regional Election Decision)
The document amends a previous Decision and Direction of Election issued on July 10, 2024, for a case involving Providence Health and Services - Oregon d/b/a Providence Benedictine Home Health (the Employer) and the Oregon Nurses Association (the Petitioner).
The main amendment relates to the classification of LPN LVNs (Licensed Practical Nurses/Licensed Vocational Nurses). Initially, the parties had stipulated that LPN LVNs were professional employees. However, after the hearing, the parties agreed that LPN LVNs should be classified as non-professional employees. The Regional Director amended the prior decision and direction of election accordingly.