A Key Blow to Employee Rights and a Possible Reprieve for Unions in the Wake of Starbucks Corp. v. McKinney (2024)

Evan Bournazian is a senior in the Georgetown College of Arts & Sciences majoring in English.

The Supreme Court of the United States’s decision in Starbucks Corp. v. McKinney (2024) continues the Court’s repeated subversion of the powers of labor unions in favor of tilting the balance toward corporations.¹

On June 13, 2024, Starbucks Corp. v. McKinney enacted a constraining interpretation of §10(j) of the National Labor Relations Act (“NLRA”), which limited the criteria for the National Labor Relations Board (“NLRB”) to seek temporary injunctions during litigation in federal courts.² Under §10(j) of the NLRA, the NLRB attempted to obtain a temporary injunction to prevent unfair labor practices from occurring during litigation. 

Prior to Starbucks Corp., no exact standard applied when the NLRB sought a preliminary injunction. Instead, the individual circuit courts either utilized a more lenient reasonable-cause standard or a traditional four-factor standard detailed in Winter v. Natural Resources Defense Council, Inc. (2008).³ The reasonable-cause standard consisted of a two-part test that entailed that the injunction would be granted if there was a reasonable-cause to believe “unfair labor practices” had occurred and if the injunction was “just and proper.” The four-factor criteria include principles that call for a plaintiff to establish a likelihood that they are to succeed on merits, a likelihood to face harm in the absence of relief, that the “balance of equities” falls in its favor, and that the temporary injunction serves the public interest. ⁴

In Starbucks Corp., the district court and Sixth Circuit applied the reasonable-cause standard when examining the NLRB’s request for a temporary injunction on behalf of several former Starbucks employees who engaged in a unionizing effort and were terminated for violating company policy. However, the Supreme Court’s rejection of the reasonable-cause two-fold test in favor of the sole application of the four-part Winter test in the federal district courts weakened the ability of the NLRB to protect against unfair labor practices. In the majority opinion delivered by Justice Clarence Thomas, the Court argued that the reasonable-cause standard significantly lowers the threshold for preliminary injunctions and develops a “watered-down approach to equity.” This shift toward a standardized set of criteria based on Winter suggests the determination for injunctions will prove to be fairer for all parties.⁵ 

However, Congress has provided the NLRB jurisdiction to identify and quickly remedy certain conduct categorized as unfair labor practices. Andrew Strom writes in OnLabor that when the NLRB seeks a temporary injunction, it works to preserve the jurisdiction granted by Congress by ensuring that its proceedings do not result in labor unfairness but instead protect collective bargaining and employee rights under the NLRA.⁶ 

By replacing the reasonable-cause standard with the stringent Winter test, the Court has severely restricted the NLRB’s ability to temporarily and swiftly resolve aggressive and intrusive labor practices. The Court’s ruling drives a shift in the power balance between employers and employees, allowing employers to utilize aggressive tactics in the district courts without facing immediate repercussions against them. 

As the Starbucks Corp. ruling requires district courts to conduct full investigations using the four criteria outlined in Winter, the NLRB’s ability to efficiently secure employee rights is at risk. In such cases as Starbucks Corp. where an employer fires unionized employees, the NLRB must wait until an Administrative Law Judge hearing concludes, which enables unjust labor practices.⁷ Even if a district court ruling favoring intrusive or unfair labor practices can be overturned on appeal, the NLRB can not issue a temporary injunction until long after the harm has occurred. 

When employers engage in such illegal and unjust efforts as union busting, the NLRB must have the ability to intervene during litigation to protect employees and maintain a fair labor balance. The ruling of Starbucks Corp. established a standardized criterion for the certification of temporary injunctions. The Court determined this criterion would ensure equity, as federal courts have previously deferred to the NLRB’s factual and legal positions in injunction proceedings.⁸ As the NLRA explicitly grants adjudicating authority to the NLRB, not to the courts, the Court adjusted the two-part reasonable-cause test and incorporated elements from Winter to address perceived imbalances. 

However, the Court’s ruling subverts the power granted to the NLRB by Congress in favor of a corporate-dominant labor landscape in which employees will be prevented from achieving restitution until long after their initial grievances. In cases where the NLRB pursues formal action, as it did in Starbucks Corp., the case proceeds before an Administrative Law Judge, who issues a decision that the NLRB then reviews.⁹ This process takes years,  during which employers can exploit employees and engage in anti-union and union-busting practices that can even nullify the final order of the NLRB. Furthermore, Justice Clarence Thomas’s opinion in Starbucks Corp. overlooks the reality that district courts often decide on §10(j) injunctions once an Administrative Law Judge has issued their decision.¹⁰ 

Under the Winter test, the NLRB will further delay its use of its labor adjudication authority and leave employees vulnerable to harm from employers seeking to disrupt union efforts. Not only will the NLRB face disruption, but other agencies that seek preliminary injunctions—such as the Federal Trade Commission and Securities and Exchange Commission—will also struggle to secure temporary relief.¹¹ As a result, the Starbucks Corp. ruling delivers a crushing blow to agency power, particularly the NLRB, as well as to employees and unions. While the Court frames the ruling as ensuring equity, it instead weakens §10(j) injunctions, disrupting labor rights enforcement and giving employers broader power to undermine unions through unfair and even illegal practices. 

While the Court’s ruling in Starbucks Corp remains a prominent restriction over the NLRB, the decision is not necessarily inflexible. A possible solution may be found in the proposed Richard L. Trumka Protecting the Right to Organize Act of 2023 (“PRO Act”).¹² The PRO Act aims to amend the NLRA to expand labor protections for employees, specifically in their right to organize and bargain in the workplace.¹³ Although the Senate did not pass the PRO Act in 2020 and 2021 after passing the House of Representatives, the 2023 iteration received bipartisan sponsorship and passed through the House again before being advanced by the Senate Committee on Health, Education, Labor, and Pensions.¹⁴ 

The PRO Act currently faces an obstacle in the Senate due to the filibuster, but the Bill would significantly increase penalties against employers who violate workers’ rights, such as through union-busting. With these strong deterrents, the PRO Act would address the concerns regarding employers’ unchecked efforts to suppress employees and unions in the wake of the Starbucks Corp. ruling. Moreover, while the Court’s ruling in Starbucks Corp introduced ostensibly balanced criteria for injunctions, the PRO Act would strengthen the NLRB’s power by enabling it to impose civil penalties, thereby reducing its reliance on temporary injunctions and mitigating the restraints imposed by Starbucks Corp. Additionally, if the PRO Act included provisions to quickly resolve disputes and enforce timeline requirements for adjudicating labor violations, the bill would offer a promising solution to the Supreme Court’s facilitation of employers’ unfair labor practices. Starbucks Corp. v. McKinney has drastically altered the labor landscape and further constrained employees’ rights, but the potential of the PRO Act as a solution demonstrates that the Court’s ruling is not insurmountable.

1.  Starbucks Corp. v. McKinney, 144 S. Ct. 1570 (2024). ↩︎
2.  National Labor Relations Act of 1935, 29 U.S.C. § 160(j) (1947). ↩︎
3.  Winter v. Natural Res. Def. Council, Inc., 554 U.S. 916 (2008). ↩︎
4.  Id. ↩︎
5.  Starbucks Corp. v. McKinney supra at 1. 
   ↩︎
6.  Andrew Strom, It’s Déjà Vu at the Supreme Court, ONLABOR (June 21, 2024), https://onlabor.org/its-deja-vu-at-the-supreme-court/.
   ↩︎
7. Id. ↩︎
8. Starbucks Corp. v. McKinney ex rel. NLRB, 138, Harv. L. Rev. 416, 416-425 (November 2024). ↩︎
9. Id. ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. Id.; Representative Robert C. Scott, H.R.20 – Richard L. Trumka Protecting the Right to Organize Act of 2023, LIBRARY OF CONGRESS (January 6, 2023), https://www.congress.gov/bill/118th-congress/house-bill/20.
    ↩︎
13. Scott supra at 13. ↩︎
14. Id. ↩︎