The NLRB Gets Supreme Court Review

Starbucks wants the Justices to rein in labor board injunctions

WSJ editorial. 

"The National Labor Relations Board has nearly carte blanche authority to punish businesses, and beware those that get on Big Labor’s wrong side. On Tuesday the High Court will consider in Starbucks v. McKinney whether the board’s diktats deserve special judicial deference. 

Six Starbucks employees in 2022 announced plans to unionize a store in Memphis, Tenn. When the store was closed, off-duty employees unlocked the door and let a news crew in without management's authorization to interview workers. Their break-in violated company policy, and Starbucks fired the employees.

The Workers United union complained to the NLRB that firing the workers was an unfair labor practice. An NLRB regional director issued an administrative complaint and petitioned a federal judge for an injunction ordering Starbucks to reinstate the employees and expunge one of their unrelated disciplinary citations, among other things.

Under the Supreme Court’s four-part test, the party seeking a preliminary injunction must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

Yet the Sixth Circuit Court of Appeals has set a more lenient standard for the NLRB, which must merely show there is “reasonable cause to believe that unfair labor practices have occurred” and “injunctive relief is just and proper.” Following Sixth Circuit precedent, the district court judge deferred to the NLRB on issues of fact and law, which Starbucks contested in an administrative proceeding. The judge held the NLRB had met its “relatively insubstantial burden” because its legal theory that Starbucks had committed an unfair labor practice was “not frivolous.”

Under the Sixth Circuit standard, lower-court judges must defer to the board’s allegations even if they are later contradicted by findings in the administrative proceedings. Injunctions can interfere with an employer’s day-to-day operations, force them to rehire workers at unaffordable wages, and bar them from closing or relocating facilities.

Injunctions remain in effect until the NLRB fully adjudicates charges, which can take years. This gives the board more leverage to force businesses to agree to union demands. The board boasts in its manual that injunctions are a “strong catalyst for settlement.” Nearly half of cases in which the board has sought injunctions since 2010 have resulted in settlements.

Employers have few legal tools to defend against injunctions, so they often agree to settle. NLRB general counsel Jennifer Abruzzo claimed Starbucks’s attempts at legal discovery constituted an unfair labor practice. She has also sought nationwide injunctions to force wholesale changes in employment practices not needed to address particular grievances.

The Sixth Circuit’s deferential standard has emboldened the NLRB and its union allies to demand burdensome remedies based on dubious charges. As a matter of law, it tramples employer due process and the constitutional separation of powers. Judges must bless the NLRB’s punishment as long as its allegations aren’t “frivolous.”

Dozens of other federal agencies must follow the traditional injunctive relief standard. There’s no legal reason the NLRB shouldn’t have to do the same."