Labor News & Commentary January 14, 2024 the Supreme Court agrees to hear a 10(j) injunction case

[Omaha Steve]

https://onlabor.org/january-14-2023/

Swap Agrawal

Swap Agrawal is a student at Harvard Law School.

In this weekend’s news and commentary, the Supreme Court agrees to hear a 10(j) injunction case; the House votes to repeal the NLRB’s joint-employer rule; and NYU launches a new labor initiative focusing on state and local government action.

On January 12, the U.S. Supreme Court agreed to hear a labor case brought by Starbucks challenging a lower court’s order to reinstate seven pro-union employees, dubbed the Memphis Seven, who were discharged from a Memphis store amid a union campaign in 2022. The central issue in this case is the standard used by federal courts to issue Section 10(j) injunctions under the NLRA. Starbucks contends that federal courts are split on the appropriate standard to apply when the NLRB is seeking preliminary injunctions. Five circuits currently employ a two-factor “reasonable cause” test for 10(j) injunctions, while four circuits use a more stringent four-factor “likelihood of success” test. The NLRB used the two-factor test to obtain an injunction on behalf of the Memphis Seven. The Board argued in its response to Starbucks’ petition for cert that any differences between the criteria employed by circuit courts “are essentially terminological rather than substantive.” Starbucks argued that the differences between circuit standards are “outcome-determinative.” This case could create new challenges to NLRB General Counsel Abruzzo’s efforts to increase the agency’s use of 10(j) injunctions. Starbucks applauded the grant of cert, stating that “[s]ince the NLRB began more aggressively pursuing 10(j) injunctions, more than a third of cases have involved Starbucks.” Meanwhile, Starbucks Workers United said the company was seeking “a bailout for its illegal union busting” from the Supreme Court.

On January 12, the U.S. House of Representatives voted to repeal the NLRB’s joint-employer rule. The resolution was passed pursuant to the Congressional Review Act, which allows Congress to repeal agency rules through legislation. The proposal is now headed to the Senate where Democrats hold a one-seat majority. Although West Virginia Sen. Joe Manchin has said he opposes the rule, President Joe Biden said that he will veto the resolution if it passes both houses. As Greg reported last year, the NLRB’s joint-employer rule expands the definition of control and would force many large companies to bargain with contract and franchise workers’ unions. The Board issued its final rule in October of 2023, and the rule is set to go into effect on February 26, 2024.

FULL story at link above.