Trouble brewin’ for the feds’ efforts to block unfair labor practices after yesterday’s Supreme Court ruling


I disappeared down a few Google rabbit holes in my attempt to find the right coffee pun to introduce yesterday’s Supreme Court decision in which eight out of nine justices agreed to recalibrate the test for when the National Labor Relations Board seeks an injunction in federal court to curtail what it believes is an employer’s (here, Starbucks) unfair treatment of employees.

I know it was a tall order.

What had the Board so steaming hot in the first place? Some Starbucks employees announced plans to unionize and invited a news crew from a local television station to visit the store after hours to promote their unionizing effort. Concluding that the employees violated company policy, Starbucks deemed it grounds for dismissal and fired them.

So, the Board got involved and filed an administrative complaint against Starbucks, alleging that it had engaged in unfair labor practices.

Some may say good things come to those who au lait, err, wait. But, in this case, the Board’s regional Director then filed a petition under Section 10( j) of the National Labor Relations Act, which authorizes it to seek temporary injunctions against employers (and unions) while a case is pending at the Board.

Until yesterday, courts were split on the ground rules for an injunction. Some applied a two-part test that asks whether there is reasonable cause to believe that unfair labor practices have occurred and whether injunctive relief is just and proper. Others used a traditional four-part test that would apply to your average Joe, asking whether the Board is likely to succeed on the merits, whether it faces irreparable harm, whether the balance of hardships tips in the agency’s favor, and whether an injunction is in the public interest.

The Board’s position was that Congress created the Board, not federal courts, to adjudicate unfair labor practice charges. And since courts of appeals often review Board decisions differentially, 10(j) relief should be less exacting, i.e., the two-part reasonable-cause test, which would require the Board to show that the theory of its case is “substantial and not frivolous.”

The Supreme Court disagreed. It held that nothing in 10(j) of the Act displaces the presumption that the traditional principles of the four-part test apply.

And they didn’t bean around the bush explaining what’s sumatra with the less robust two-part test.

“In fact, it is hard to imagine how the Board could lose under the reasonable-cause test if courts deferentially ask only whether the Board offered a minimally plausible legal theory, while ignoring conflicting law or facts.”

Writing for the Court, Justice Thomas reasoned that “Section 10(j) ‘s statutory context does not compel this watered-down approach to equity. ”

Coffee pun?

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