Client Alerts & Insights
Supreme Court Clarifies §10(j) Preliminary Injunction Standard
June 13, 2024
Authored By:
On June 13, 2024, the Supreme Court struck a blow to the NLRB and provided employers a major win in a case involving a preliminary injunction issued against Starbucks under §10(j) of the National Labor Relations Act.
A preliminary injunction under §10(j) is a legal mechanism that the NLRB uses in its efforts to require employers to take certain action (like reinstating a terminated employee) or to refrain from certain action (like engaging in unfair labor practices).
In its opinion (Starbucks Corp. v. McKinney, et al.) the Court held that the traditional preliminary injunction test applies to the NRLB, instead of the much less stringent two-part test that some courts, including the 6thCircuit Court of Appeals (Ohio, Michigan, Tennessee, and Kentucky) had been applying. Given the increased labor activity under the Biden Administration, the Court’s ruling is a welcome win for employers that should result in the NLRB filing fewer §10(j) petitions for preliminary injunction or, at a minimum, in fewer orders granting preliminary injunctions under §10(j).
Going forward, to obtain a preliminary injunction under §10(j) the NLRB must show (1) it is likely to succeed on the merits of its claim against the employer; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest.
The Court, in siding with Starbucks, rejected the NLRB’s argument that it should be held to a less exacting standard than the average plaintiff seeking a preliminary injunction. Instead, the Court found that nothing in the law suggests that the NLRB should be treated differently than any other litigant who requests a preliminary injunction. And while Congress could amend the National Labor Relations Act to allow the NLRB to proceed under a less stringent preliminary injunction test, such a result seems unlikely given Congress’ current party breakdown.
For more information, contact a member of Benesch’s Labor & Employment Practice Group.
Eric Baisden at 216.363.4676 or ebaisden@beneschlaw.com.
Joseph R. Blalock at 614.229.9359 or jblalock@beneschlaw.com.
Latest News
DOJ’s National Fraud Enforcement Division Issues Corporate Enforcement Directive, Signaling Heightened Scrutiny of Corporate Fraud
DOJ’s new enforcement framework reinforces that corporate fraud investigations will remain a significant enforcement priority, particularly in healthcare, government contracting, tax and international trade.
Lessons from Kai Spears v. The New York Times Co.: A Historic Defamation Verdict
The first defamation verdict against The New York Times in more than 50 years highlights the significant litigation risks that can arise when reporting relies on inadequately vetted anonymous sources and critical editorial safeguards are not followed.
Back To Wright Line: NLRB Resets Standards for Workplace Misconduct
Employers have regained greater flexibility to address offensive or abusive employee conduct that occurs during union activity or other activity protected by the National Labor Relations Act. On September 23, 2026, the National Labor Relations Board (the “Board”) issued a significant decision in Lion Elastomers LLC, 375 NLRB No. 41, restoring the prior standard for evaluating discipline when employee misconduct occurs during protected concerted activity from General Motors LLC, 369 NLRB No. 127.
Can an Algorithm Commit a Tort? The Circuit Split Over Section 230
A growing circuit split is reshaping the scope of Section 230 immunity. While the Fourth and Ninth Circuits continue to view algorithmic recommendations as protected publisher conduct, the Third Circuit has taken a narrower approach, holding that certain algorithm-driven content recommendations may constitute a platform’s own conduct and therefore fall outside Section 230’s protections.