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As we have been blogging during the Biden presidency, the National Labor Relations Board has become quite aggressive these days. The aggression toward employers has been shown in the types of conduct the Board finds to be unlawful (like simply holding meetings with employees), the types of relief that the Board seeks (like compensatory damages in addition to backpay), and also how often the Board uses its injunctive remedy to correct alleged violations before the administrative process is completed. With regard to this last category of relief, known as a “10(j) injunction,” the United States Supreme Court just recently agreed in a case involving Starbucks to review the standards the courts must use in issuing these injunctions.

Quick Review of the Process

When a union or an employee believes that a company has interfered with their rights to engage in activity protected by the National Labor Relations Act, they often file a charge with the Board. For example, if a worker felt he was disciplined – or discharged – for supporting the union, such as talking with coworkers, organizing meetings, or using social media, he could file an unfair labor practice charge. The normal administrative process is for the Board to investigate the allegations, such as through requesting documents and interviews, and then to decide whether to pursue a remedy through an administrative process within the agency. This process can take time. An alternative though is for the Board to go directly to federal court and seek an immediate 10(j) injunction to reverse the discipline while the administrative process plays out. The Board historically sought 10(j) injunctions when multiple employees were involved – like terminations for everyone who “walked out” – but lately the Board has considered the 10(j) option in many more settings.

What Happened with Starbucks?

In a recent case involving Starbucks, the Board sought 10(j) relief for workers discharged allegedly for engaging in protected activity. Because the incident occurred in Tennessee, the standard for issuing the injunction was the standard applicable in the federal Sixth Circuit Court of Appeals, an easier standard for the Board to meet than in most other areas of the country. Under the Sixth Circuit test, all the Board had to show was (1) that its legal theory was substantial and (2) that the harm inflicted could not be remedied by the Board by the time the longer administrative process was over. The Board applied for and received the injunction, which put the employees back to work pending the administrative process.

In other circuits, however, the courts look at other factors, such as balancing the interests of all the parties and reviewing the public interest at stake. Now, with this current Starbucks appeal, the Supreme Court presumably will review these conflicting standards and issue a single set of criteria for future 10(j) injunctions that will apply throughout the country.

So, stay tuned. How the Supreme Court rules likely will have a strong impact on the NLRB’s increasing use of this 10(j) weapon and the Board’s ability to obtain quick settlements in its many types of enforcement actions.