No. 23-367
`
`
`
`In the Supreme Court of the United States
`
`
`STARBUCKS CORPORATION,
`
`Petitioner,
`
`v.
`M. KATHLEEN MCKINNEY, REGIONAL DIRECTOR OF
`REGION 15 OF THE NATIONAL LABOR RELATIONS
`BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR
`RELATIONS BOARD,
`
`Respondent.
`
`
`
`On Writ Of Certiorari To The United States
`Court Of Appeals For The Sixth Circuit
`
`
`BRIEF OF COALITION FOR A DEMOCRATIC
`WORKPLACE, ASSOCIATED BUILDERS AND
`CONTRACTORS, HR POLICY ASSOCIATION,
`NATIONAL ASSOCIATION OF WHOLESALER-
`DISTRIBUTORS, AND NATIONAL RETAIL
`FEDERATION AS AMICI CURIAE IN SUPPORT
`OF PETITIONER
`
`
`STEPHANIE SCHUSTER
`Counsel of Record
`JONATHAN C. FRITTS
`JOHN F. RING
`AMANDA L. SALZ
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Ave., NW
`Washington, DC 20004
`(202) 739-3000
`stephanie.schuster
`@morganlewis.com
`
`G. ROGER KING
`HR POLICY ASSOCIATION
`4075 Wilson Blvd., Suite 818
`Arlington, VA 22203
`(202) 789-8670
`rking@hrpolicy.org
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`STARBUCKS CORPORATION,
`
`Petitioner,
`
`v.
`M. KATHLEEN MCKINNEY, REGIONAL DIRECTOR OF
`REGION 15 OF THE NATIONAL LABOR RELATIONS
`BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR
`RELATIONS BOARD,
`
`Respondent.
`
`
`
`On Writ Of Certiorari To The United States
`Court Of Appeals For The Sixth Circuit
`
`
`BRIEF OF COALITION FOR A DEMOCRATIC
`WORKPLACE, ASSOCIATED BUILDERS AND
`CONTRACTORS, HR POLICY ASSOCIATION,
`NATIONAL ASSOCIATION OF WHOLESALER-
`DISTRIBUTORS, AND NATIONAL RETAIL
`FEDERATION AS AMICI CURIAE IN SUPPORT
`OF PETITIONER
`
`
`STEPHANIE SCHUSTER
`Counsel of Record
`JONATHAN C. FRITTS
`JOHN F. RING
`AMANDA L. SALZ
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Ave., NW
`Washington, DC 20004
`(202) 739-3000
`stephanie.schuster
`@morganlewis.com
`
`G. ROGER KING
`HR POLICY ASSOCIATION
`4075 Wilson Blvd., Suite 818
`Arlington, VA 22203
`(202) 789-8670
`rking@hrpolicy.org
`
`
`
`
`
`i
`
`
`QUESTION PRESENTED
`Under the National Labor Relations Act, the
`National Labor Relations Board (NLRB) issues,
`prosecutes, and adjudicates complaints alleging that
`employers committed unfair labor practices. 29 U.S.C.
`§ 160(b). Section 10(j) of the Act authorizes federal
`district courts, while the NLRB adjudication remains
`pending, to grant preliminary injunctive relief at the
`NLRB’s request “as [the court] deems just and proper.”
`29 U.S.C. § 160(j).
`The question presented, on which the courts of
`appeals are openly and squarely divided, is:
`Whether courts must evaluate the NLRB’s
`requests for Section 10(j) injunctions under the
`traditional, stringent four-factor test for preliminary
`injunctions or under some other more
`lenient
`standard.
`
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`
`
`Page
`
`
`QUESTION PRESENTED ........................................... i
`TABLE OF AUTHORITIES ....................................... iv
`INTEREST OF AMICI CURIAE ................................. 1
`INTRODUCTION AND SUMMARY OF
`ARGUMENT .......................................................... 4
`ARGUMENT ................................................................ 6
`I. The standards applied by the majority of
`the courts of appeals are not the correct
`standard for the NLRB to obtain a
`Section 10(j) injunction. ................................. 6
`A. The traditional, four-factor test—and in
`particular, the likelihood-of-success
`factor—reserves preliminary relief for
`extraordinary cases. ................................ 6
`B. Congress intended Section 10(j)
`injunctions to be at least as—if not
`more—extraordinary than other
`preliminary injunctions. .......................... 8
`C. The two-prong standard makes Section
`10(j) injunctions easier to obtain than
`other preliminary injunctions. .............. 11
`II. Requests for Section 10(j) injunctions
`should be governed by a standard at least
`as demanding as the four-factor test that
`applies to all other requests for
`preliminary relief. ........................................ 13
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS—continued
`
`
`Page
`
`A. Section 10(j)’s unique context makes a
`district court’s searching review even
`more necessary. ..................................... 13
`B. Even greater scrutiny is required when
`the NLRB’s Section 10(j) petition is
`based on novel or shifting
`interpretations of the NLRA. ................ 17
`C. The deferential two-prong standard has
`serious ramifications for employers. ..... 20
`CONCLUSION ........................................................... 22
`
`
`
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
` Page(s)
`
`CASES
`Am. Steel Constr., 372 N.L.R.B. No. 23 (Dec. 14,
`2022) ..................................................................... 17
`Arlook v. S. Lichtenberg & Co., 952 F.2d 367
`(11th Cir. 1992) ............................................... 12-13
`Atlanta Opera, Inc., 372 N.L.R.B. No. 95 (June
`13, 2023) ............................................................... 19
`Benisek v. Lamone, 138 S. Ct. 1942 (2018) ................ 7
`Bexar Cnty. Performing Arts Ctr. II, 372 N.L.R.B.
`No. 28 (Dec. 16, 2022) .......................................... 17
`Bloedorn v. Francisco Foods, Inc., 276 F.3d 270
`(7th Cir. 2001) ...................................................... 11
`Boire v. Pilot Freight Carriers, Inc., 515 F.2d
`1185 (5th Cir. 1975) ............................................. 12
`Cemex Constr. Materials Pac. LLC, 372 N.L.R.B.
`No. 130 (Aug. 25, 2023) ........................................ 17
`Chester v. Grane Healthcare Co., 666 F.3d 87 (3d
`Cir. 2011) .............................................................. 12
`Consol. Commc’ns, Inc. v. NLRB, 837 F.3d 1
`(D.C. Cir. 2016) .................................................... 19
`D. L. Baker Inc., 351 N.L.R.B. 515 (2007) ................ 18
`Denholm v. Smyrna Ready Mix Concrete, LLC,
`2021 WL 297571 (E.D. Ky. 2021) ................... 20-21
`Dunbar v. Carrier Corp., 66 F. Supp. 2d 346
`(N.D.N.Y. 1999) .................................................... 20
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES—continued
`
`
`Page(s)
`
`
`eBay Inc. v. MercExchange, LLC, 547 U.S. 388
`(2006) ................................................................ 7, 15
`Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018) .......... 19
`FedEx Home Delivery v. NLRB, 563 F.3d 492
`(D.C. Cir. 2009) .................................................... 18
`FedEx Home Delivery v. NLRB, 849 F.3d 1123
`(D.C. Cir. 2017) .................................................... 18
`Gonzales v. O Central Espirita Beneficente Uniao
`do Vegetal, 546 U.S. 418 (2006) ............................. 7
`Gottfried v. Frankel, 818 F.2d 485 (6th Cir. 1987) .. 12
`Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243 (3d
`Cir. 1998) .............................................................. 20
`Hoffman v. Inn Credible Caterers, Ltd., 247 F.3d
`360 (2d Cir. 2001) ................................................. 12
`Hooks v. Nexstar Broad., Inc., 54 F.4th 1101 (9th
`Cir. 2022) .............................................................. 11
`Jacksonville Bulk Terminals, Inc. v. Int’l
`Longshoremen’s Ass’n, 457 U.S. 702 (1982) .......... 9
`King v. Amazon.com Servs. LLC, 2022 WL
`17083273 (E.D.N.Y. Nov. 18, 2022) ............... 16, 21
`Kobell v. Suburban Lines, Inc., 731 F.2d 1076 (3d
`Cir. 1984) .............................................................. 16
`Lion Elastomers, 372 N.L.R.B. No. 83 (May 1,
`2023) ............................................................... 17, 19
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES—continued
`
`
`Page(s)
`
`
`McKinney v. S. Bakeries, LLC, 786 F.3d 1119
`(8th Cir. 2015) ...................................................... 11
`McLaren Macomb, 372 N.L.R.B. No. 58 (Feb. 21,
`2023) ..................................................................... 17
`Miller v. Cal. Pac. Med. Ctr., 991 F.2d 536 (9th
`Cir. 1993) .............................................................. 16
`Muffley v. Spartan Mining Co., 570 F.3d 534 (4th
`Cir. 2009) .............................................................. 11
`Munaf v. Geren, 553 U.S. 674 (2008) ....................... 6-8
`Nken v. Holder, 556 U.S. 418 (2009) ................. 6-7, 12
`NLRB v. Robbins Tire & Rubber Co., 437 U.S.
`214 (1978) ............................................................. 14
`Rivera-Vega v. ConAgra, Inc., 70 F.3d 153 (1st
`Cir. 1995) .............................................................. 11
`Sharp v. Webco Indus., Inc., 225 F.3d 1130 (10th
`Cir. 2000) .............................................................. 12
`Sherry v. Perkins, 17 N.E. 307 (Mass. 1888) .............. 8
`Silverman v. MLB Players Rels. Comm., 880 F.
`Supp. 246 (S.D.N.Y. 1995) ................................... 10
`Springhead Spinning Co. v. Riley, L. R. Eq. 551
`(1868) ...................................................................... 8
`Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2,
`2023) ..................................................................... 17
`Truax v. Corrigan, 257 U.S. 312 (1921) .................. 8-9
`
`
`
`
`
`vii
`
`TABLE OF AUTHORITIES—continued
`
`
`Page(s)
`
`
`United States v. Hutcheson, 312 U.S. 219 (1941) ....... 9
`Weinberger v. Romero-Barcelo, 456 U.S. 305
`(1982) ...................................................................... 6
`Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7
`(2008) ................................................................ 6, 13
`STATUTES
`Clayton Antitrust Act of 1914
`
`29 U.S.C. § 52 ......................................................... 9
`
`National Labor Relations Act
`29 U.S.C. § 160(a)–(d) .................................... 10, 14
`29 U.S.C. § 160(c) ............................................ 14-15
`29 U.S.C. § 160(e) ........................................... 10, 15
`29 U.S.C. § 160(h) .................................................. 9
`29 U.S.C. § 160(j) ......... 1-2, 4-6, 8-11, 13-17, 20-22
`
`Norris-La Guardia Act of 1932
`29 U.S.C. § 101 .................................................. 9-10
`RULES
`Fed. R. Civ. P. 65 ....................................................... 10
`OTHER AUTHORITIES
`11A Charles Alan Wright & Arthur Miller,
`Federal Practice & Procedure § 2948.3 (3d ed.) .... 7
`
`
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES—continued
`
`
`Page(s)
`
`
`G. Roger King, The Biden Administration “All of
`Government” Approach to Increasing Union
`Density in the Country and the NLRB’s Cemex
`Decision, FEDSOC BLOG (Nov. 21, 2023),
`https://fedsoc.org/commentary/fedsoc-blog/the-
`biden-administration-all-of-government-
`approach-to-increasing-union-density-in-the-
`country-and-the-nlrb-s-cemex-decision ............... 17
`JOHN R. COMMON, ET AL., HISTORY OF LABOUR IN
`THE UNITED STATES, Vol. 2 (1918) ......................... 8
`Memorandum 21-05 from NLRB General
`Counsel Jennifer A. Abruzzo to All Regional
`Directors, et al. (Aug. 19, 2021) ........................... 16
`
`
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`Amici respectfully ask the Court to reverse the
`Sixth Circuit’s erroneous decision and clarify that, to
`receive an injunction under Section 10(j) of the
`National Labor Relations Act (NLRA), the NLRB
`must satisfy the traditional, stringent four-factor test
`for preliminary injunctive relief.
`The Coalition for a Democratic Workplace (CDW)
`is composed of hundreds of organizations representing
`millions of businesses that employ tens of millions of
`workers nationwide in nearly every industry. CDW’s
`members are joined by their mutual concern over
`regulatory overreach by the NLRB that threatens
`employees, employers, and economic growth.
`Associated Builders and Contractors (ABC) is a
`national construction industry trade association
`representing more than 23,000 member companies.
`ABC’s membership represents all specialties within
`the U.S. construction industry and is comprised
`primarily of general contractors and subcontractors
`that perform work in the industrial and commercial
`sectors.
`The HR Policy Association is a public policy
`advocacy organization that represents the chief
`human resource officers of nearly 400 of the largest
`corporations doing business in the United States and
`globally. Collectively, their companies employ more
`
`
`1 Counsel for amici affirms that no counsel for a party
`authored this brief in whole or in part, that no such counsel or
`party made a monetary contribution intended to fund the
`preparation or submission of this brief, and that no person other
`than amici and their counsel made such a monetary contribution.
`
`
`
`
`2
`
`than 10 million employees in the United States—
`nearly 9 percent of the private sector workforce.
`National Association of Wholesaler-Distributors
`(NAW) is an employer and a non-profit, non-stock,
`incorporated trade association that represents the
`wholesale distribution industry—the essential link in
`the supply chain between manufacturers and
`retailers, as well as commercial, institutional, and
`governmental end users. NAW is made up of direct
`member companies and a federation of national,
`regional, state, and local associations, which together
`include approximately 35,000 companies operating
`nearly 150,000 locations throughout the nation. The
`overwhelming majority of wholesaler-distributors are
`small-to-medium-size, closely held businesses. The
`wholesale distribution industry generates more than
`$8.2 trillion in annual sales volume and provides
`stable and well-paying jobs to more than 6 million
`workers.
`The National Retail Federation (NRF) represents
`discount and department stores, home goods and
`specialty stores, Main Street merchants, grocers,
`wholesalers, chain restaurants, and internet retailers.
`It is the world’s largest retail trade association, and
`retail is the nation’s largest private-sector employer.
`The retail industry supports one in four U.S. jobs, or
`52 million American workers, and contributes $3.9
`trillion per year to the national Gross Domestic
`Product.
`the
`to allow
`The Sixth Circuit’s decision
`extraordinary remedy of Section 10(j) injunctive relief
`to issue without requiring the NLRB to demonstrate
`a likelihood of success on the merits of the underlying
`
`
`
`
`
`3
`
`dispute or otherwise satisfy the traditional, equitable
`criteria for preliminary relief, encourages overreach
`by the NLRB. Amici are uniquely situated to
`highlight, as they do in this brief, how the Sixth
`Circuit’s deferential standard enables the NLRB to
`seek and obtain broad, long-lasting “temporary”
`injunctions that can have significant adverse impacts
`on employers.
`
`
`
`
`
`
`4
`
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`The four-factor test a plaintiff must satisfy to
`obtain a preliminary injunction is well-established.
`Chief among those four factors is that the plaintiff
`must demonstrate a likelihood of success on the
`merits. This likelihood-of-success requirement is
`critical. The preliminary injunction is a drastic
`remedy that affords relief to one party before it ever
`proves its case and before its adversary has the
`opportunity to mount and present its defense that
`basic principles of due process demand. Requiring a
`plaintiff to demonstrate a likelihood of ultimate
`success on the merits ensures that such extraordinary
`relief is preserved for extraordinary cases.
`Preliminary injunctions are extraordinary even in
`the typical civil action. This case is about an especially
`extraordinary type of preliminary injunction—one
`issued pursuant to Section 10(j) of the NLRA. Section
`10(j) exists to provide preliminary relief before the
`merits of the case are litigated through the NLRB’s
`administrative process. Only the NLRB can seek a
`Section 10(j) injunction.
`When evaluating the NLRB’s requests for Section
`10(j) injunctions, four courts of appeals (the Fourth,
`Seventh, Eighth, and Ninth Circuits) rightly apply the
`same four-factor test that applies to every other
`request for preliminary equitable relief. But other
`courts of appeals (the Second, Third, Fifth, Sixth,
`Tenth, and Eleventh Circuits) apply a too-lenient
`standard that does not evaluate the NLRB’s likelihood
`of success on the merits or the other traditional
`equitable factors. These courts of appeals demand
`
`
`
`
`
`5
`
`only that the NLRB’s legal theories be “coherent” and
`“substantial” in the sense that they are “not frivolous.”
`If these minimal hurdles are cleared, these courts
`defer to the NLRB’s legal theory based on a limited
`evidentiary presentation. As a result, the strength (or
`lack thereof) of the NLRB’s case on the merits rarely
`impedes the agency’s ability to obtain Section 10(j)
`injunctions in the Second, Third, Fifth, Sixth, Tenth,
`and Eleventh Circuits.
`The deferential standard applied by these courts
`has significant
`impacts on employers across
`industries. The resulting injunctions can affect a
`range of business activity—from employment of
`particular workers, to closing or relocating facilities,
`to selling financially draining assets. Amici therefore
`respectfully request that the Court reverse the Sixth
`Circuit’s decision and clarify that the four-factor test
`for preliminary
`injunctive
`relief applies
`to
`Section 10(j) injunctions.
`
`
`
`
`
`
`
`
`6
`
`ARGUMENT
`I. The standards applied by the majority of the
`courts of appeals are not the correct
`standard for the NLRB to obtain a Section
`10(j) injunction.
`
`A. The traditional, four-factor test—and in
`particular,
`the
`likelihood-of-success
`factor—reserves preliminary relief for
`extraordinary cases.
`“It goes without saying that an injunction is an
`equitable remedy. It is not a remedy which issues as
`of course, or to restrain an act the injurious
`consequences of which are merely
`trifling.”
`Weinberger v. Romero-Barcelo, 456 U.S. 305, 311
`(1982) (cleaned up). Preliminary injunctions, in
`particular, are “extraordinary and drastic” and are
`“never awarded as of right.” Munaf v. Geren, 553 U.S.
`674, 689–90 (2008) (cleaned up).
`Courts may exercise their discretion to issue such
`extraordinary and drastic relief only when a plaintiff
`satisfies the well-established four-factor test: “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.” Winter v.
`Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
`These same, generally applicable principles of equity
`govern requests for other forms of preliminary or
`temporary relief. See, e.g., Nken v. Holder, 556 U.S.
`418, 434 (2009) (stay pending appeal). For, as this
`Court has explained, “a major departure from the long
`tradition of equity practice should not be lightly
`
`
`
`
`
`7
`
`implied.” eBay Inc. v. MercExchange, LLC, 547 U.S.
`388, 391 (2006) (cleaned up).
`The four-factor test ensures that preliminary
`injunctions do not become ordinary. All four factors
`must be considered and, on balance, found to favor the
`plaintiff before a preliminary injunction may issue.
`See Benisek v. Lamone, 138 S. Ct. 1942, 1943–44
`(2018) (“As a matter of equitable discretion, a
`preliminary injunction does not follow as a matter of
`course from a plaintiff’s showing of a likelihood of
`success on the merits.”); Munaf, 553 U.S. at 690
`(preliminary injunction improper where the opinions
`below lacked “any mention of a likelihood of success
`as to the merits”). This Court has described the first
`two factors—likelihood of success and irreparable
`harm—as “the most critical.” Nken, 556 U.S. at 434.
`The
`likelihood-of-success factor
`is especially
`important “because the need for the court to act is, at
`least in part, a function of the validity of the
`applicant’s claim.” 11A Charles Alan Wright & Arthur
`Miller, Federal Practice & Procedure § 2948.3 (3d ed.).
`“It is not enough that the chance of success on the
`merits be better than negligible” or “a mere
`possibility.” Nken, 556 U.S. at 434 (cleaned up). The
`party seeking a preliminary injunction—relief before
`the party has proved its claim and before its adversary
`has been given a full and fair opportunity to present
`its defense—must at least make out a convincing
`prima facie case based on compelling facts and well-
`established legal principles. See Gonzales v. O Central
`Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
`428 (2006). Otherwise, “preliminary
`injunctions
`
`
`
`
`
`8
`
`would be the rule, not the exception.” Munaf, 553 U.S.
`at 690.
`10(j)
`Section
`intended
`B. Congress
`injunctions to be at least as—if not
`more—extraordinary
`than
`other
`preliminary injunctions.
`The injunctions contemplated by Section 10(j) of
`the NLRA are a form of preliminary or temporary
`injunction. Indeed, the evolution of U.S. labor law
`shows that Congress intended the Section 10(j)
`injunction to be a super-extraordinary remedy—an
`extraordinary form of the already extraordinary
`remedy of a preliminary or temporary injunction.
`Courts issued injunctions in labor disputes long
`before Congress enacted Section 10(j) or the NLRA
`itself. The equitable remedy was first granted in labor
`suits by the English Court of Chancery and, by the
`1880s, was adopted in American courts of equity. See
`Truax v. Corrigan, 257 U.S. 312, 366 (1921) (Brandeis,
`J., dissenting) (citing Springhead Spinning Co. v.
`Riley, L. R. Eq. 551 (1868); Sherry v. Perkins, 17 N.E.
`307 (Mass. 1888); JOHN R. COMMON, ET AL., HISTORY
`OF LABOUR IN THE UNITED STATES, Vol. 2, pp. 504–05
`(1918) (collecting cases)).
`For decades before the establishment of a federal
`labor law, courts’ ability to issue injunctions in labor
`disputes was contentious. Injunction opponents
`introduced bills to legally limit the courts’ equitable
`power. Id. at 369. Some focused on rights, and others
`on remedy. “[S]ome undertook practically to abolish
`the use of the injunction in labor disputes, while some
`merely limited its use either by prohibiting its issue
`
`
`
`
`
`9
`
`under certain conditions or by denying power to
`restrain certain acts.” Ibid.
`After limiting courts’ ability to issue injunctions in
`a subset of labor disputes through the Clayton
`Antitrust Act of 1914, 29 U.S.C. § 52, Congress
`enacted the Norris-La Guardia Act of 1932, which,
`except under specific circumstances, stripped district
`courts of jurisdiction to “issue any restraining order or
`temporary or permanent
`injunction
`in a case
`involving or growing out of a labor dispute,” 29 U.S.C.
`§ 101
`(emphasis added). See United States v.
`Hutcheson, 312 U.S. 219, 229–31 (1941). This Court
`has
`interpreted
`the Norris‑La Guardia Act’s
`anti‑injunction provision broadly,
`“recognizing
`exceptions only in limited situations where necessary
`to accommodate the Act to specific federal legislation
`or paramount congressional policy.” Jacksonville Bulk
`Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S.
`702, 708 (1982).
`limited
`Congress carved out a specific and
`exception to the Norris-La Guardia Act when courts
`grant injunctive relief pursuant to Section 10 of the
`NLRA. See 29 U.S.C. § 160(h). But this exception
`must be understood
`in
`the context of
`the
`jurisprudence which predated the Norris-La Guardia
`Act.
`Section 10(j) provides that, when the NLRB seeks
`injunctive relief related to an alleged unfair labor
`practice, a district court “shall have jurisdiction to
`grant to the Board such relief or restraining order as
`it deems just and proper.” 29 U.S.C. § 160(j). By
`instructing courts to apply the equitable “just and
`proper” standard, Congress indicated its return to the
`
`
`
`
`
`10
`
`traditional principles that preceded the Norris-La
`Guardia Act. See Pet’r’s Br. 23 (“‘Just’ means
`‘righteous’ and
`‘equitable.’ And
`‘proper’ means
`‘appropriate,’ ‘suitable,’ or ‘right.’” In sum, ‘just and
`proper’ is another way of saying ‘appropriate’ or
`‘equitable.’” (cleaned up)).
`Through Section 10(j), courts are intended to play
`an important, but limited, role in labor litigation
`today. The NLRB adjudicates unfair labor practice
`charges through its own administrative procedures.
`See 29 U.S.C. § 160(a)–(d). However, even when those
`administrative procedures yield a final decision, the
`NLRB’s order is without effect unless and until the
`NLRB successfully petitions to enforce it. 29 U.S.C.
`§ 160(e). Because the administrative process can take
`months or years to complete, Congress created a
`special proceeding to permit the NLRB to petition for
`“appropriate temporary relief or restraining order,”
`29 U.S.C. § 160(j), just as parties to a civil action may
`seek appropriate temporary relief or restraining
`order, see Fed. R. Civ. P. 65. By invoking traditional
`equitable principles through the “just and proper”
`standard, Congress indicated that this “temporary
`relief or restraining order” is a form of preliminary or
`temporary injunctive relief. Cf. Silverman v. MLB
`Players Rels. Comm., 880 F. Supp. 246, 253 (S.D.N.Y.
`1995) (Sotomayor, J.) (“Provision 10(j) of the Act
`authorizes district courts
`to grant
`temporary
`injunctions pending the outcome of unfair labor
`practice proceedings before
`the Board.”). The
`Section 10(j) injunction therefore should be subject to
`the same standard as any other preliminary
`injunction.
`
`
`
`
`
`11
`
`C. The two-prong standard makes Section
`10(j) injunctions easier to obtain than
`other preliminary injunctions.
`Whereas the Fourth, Seventh, Eighth, and Ninth
`Circuits correctly evaluate Section 10(j) preliminary
`injunctions under the same four-factor test that
`governs other preliminary injunctions—requiring the
`NLRB to show (among other things) a likelihood of
`success on the merits2—several circuits apply a more
`lenient,
`two-prong standard
`that
`is patently
`inconsistent with congressional intent.
`The Second, Third, Fifth, Sixth, Tenth, and
`Eleventh Circuits permit Section 10(j) injunctions to
`be issued without evaluating the NLRB’s likelihood of
`success on the merits. These courts of appeals instead
`require a minimal showing of “reasonable cause” to
`believe that the alleged unfair
`labor practice
`occurred—a low standard that often can and will be
`satisfied by excessive deference to the NLRB’s
`allegations and legal theories alone.
` The Second Circuit holds that district courts “must
`give considerable deference to the Board or
`Regional Director when making a determination of
`
`
`2 See, e.g., Muffley v. Spartan Mining Co., 570 F.3d 534, 543
`(4th Cir. 2009); Bloedorn v. Francisco Foods, Inc., 276 F.3d 270,
`286 (7th Cir. 2001); McKinney v. S. Bakeries, LLC, 786 F.3d
`1119, 1122 (8th Cir. 2015); Hooks v. Nexstar Broad., Inc., 54
`F.4th 1101, 1106 (9th Cir. 2022). The First Circuit also applies
`the traditional four-factor test, requiring the NLRB to satisfy
`that test in addition to showing there is reasonable cause to
`believe an unfair labor practice occurred. Rivera-Vega v.
`ConAgra, Inc., 70 F.3d 153, 158, 164 (1st Cir. 1995).
`
`
`
`
`
`12
`
`reasonable cause.” Hoffman v. Inn Credible
`Caterers, Ltd., 247 F.3d 360, 370 (2d Cir. 2001).
` The Third Circuit requires that the agency’s legal
`theory be merely “substantial and not frivolous.”
`Chester v. Grane Healthcare Co., 666 F.3d 87, 100
`(3d Cir. 2011) (cleaned up).
` The Fifth Circuit instructs district courts that they
`“need only decide that the Board’s theories of law
`and fact are not insubstantial or frivolous.” Boire
`v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1189
`(5th Cir. 1975).
` The Sixth Circuit demands only that the Board
`have a “not frivolous” legal theory. Gottfried v.
`Frankel, 818 F.2d 485, 493 (6th Cir. 1987).
` The Tenth Circuit requires “deference to the
`Board” and that the evidence be viewed “in the
`light most favorable to the Board.” Sharp v. Webco
`Indus., Inc., 225 F.3d 1130, 1134–36 (10th Cir.
`2000) (cleaned up).
` The Eleventh Circuit requires only that the
`NLRB’s legal theory be “coherent.” Arlook v. S.
`Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir.
`1992).
`likelihood-of-success
`Contrast that with the
`burden imposed on any other litigant seeking
`extraordinary, preliminary relief. Demonstrating “a
`mere possibility” of success would not suffice for any
`other litigant. Nken, 556 U.S. at 434. Yet, the Second,
`Third, Fifth, Sixth, Tenth, and Eleventh Circuits defer
`to the NLRB’s legal theories, so long as they pass the
`exceedingly low bars of “coherent” and “not frivolous.”
`
`
`
`
`
`13
`
`
`
`These courts also lower the bar for injunctive
`relief under the “just and proper” prong of the Section
`10(j) standard. They do not adhere to the traditional
`equitable factors of irreparable harm, balance of the
`equities, and the public interest. Instead, these courts
`focus on the effectiveness of the NLRB’s remedial
`authority. See, e.g., Arlook, 952 F.2d at 374 (reversing
`district court’s denial of injunctive relief, finding that
`Section 10(j) relief “would have been much more
`effective than waiting for a final Board order”).
`The less-demanding burden these courts of
`appeals afford the NLRB is irreconcilable with the
`fact that preliminary injunctions, like Section 10(j)
`injunctions, are supposed to be extraordinary, see,
`e.g., Winter, 555 U.S. at 24, and with Congress’s
`manifest reluctance
`to vest
`the courts with
`jurisdiction to issue injunctive relief in labor disputes.
`II. Requests for Section 10(j) injunctions should
`be governed by a standard at least as
`demanding as the four-factor test that
`applies to all other requests for preliminary
`relief.
`
`A. Section 10(j)’s unique context makes a
`district court’s searching review even
`more necessary.
`is an
`The deferential
`two-prong standard
`inappropriately low hurdle. The NLRB can clear it
`without establishing the normal requirements for
`preliminary injunctive relief, which makes it easier
`for the NLRB to obtain a Section 10(j) injunction than
`
`
`
`
`
`14
`
`for another litigant to obtain analogous injunctive
`relief. For at least two reasons, it should be as
`difficult—if not more difficult—for the NLRB to
`receive a Section 10(j) injunction.
`First, once a Section 10(j) injunction is issued, a
`district court relinquishes control over the litigation
`on the merits. The NLRB’s administrative litigation
`process determines the pace and the outcome of the
`litigation on the merits, while the Section 10(j)
`injunction remains in place.
`Section 10(j) permits the NLRB to seek a
`preliminary injunction early in the administrative
`litigation process, after a complaint has been issued.
`29 U.S.C. § 160(j) (“The Board shall have the power,
`upon issuance of a complaint….”). Issuance of a
`complaint signifies only that the NLRB’s prosecuting
`attorneys believe they have sufficient evidence and a
`viable legal theory to prosecute the employer. There is
`no hearing to determine whether the evidence is
`credible or sufficient to support the allegations of the
`complaint. Witnesses are not identified to the
`employer; their testimony is treated as a closely
`guarded secret. See NLRB v. Robbins Tire & Rubber
`Co., 437 U.S. 214 (1978).
`After the complaint is issued, the case is litigated
`before an administrative law judge (ALJ) employed by
`the NLRB, who issues a recommended decision and
`order. 29 U.S.C. § 160(c). But the NLRB can, and
`typically does, seek a Section 10(j) injunction before
`the evidence is heard by an ALJ. Thus, when the
`NLRB petitions a district court for a Section 10(j)
`injunction, there typically has been no opportunity for
`the employer to engage in any discovery or even know
`
`
`
`
`
`15
`
`the identity of the witnesses that the NLRB is relying
`upon to prosecute the complaint.
`If the district court grants the Section 10(j)
`injunction, it remains in place while the case is heard
`on the merits by the ALJ. But the ALJ’s decision is not
`a final agency action; it is subject to review by a panel
`of NLRB members if any party files exceptions to the
`ALJ’s decision. 29 U.S.C. § 160(c). The NLRB may
`then petition a circuit court to enforce its decision
`under a deferential “substantial evidence” review.
`29 U.S.C. § 160(e).
`The district court never has jurisdiction to hear
`the case on the merits. The district court’s role is
`limited to determining whether Section 10(j) relief
`should be granted while the case is litigated before the
`NLRB. This is significantly different than the role of
`a district court in ordinary litigation. When a plaintiff
`in a typical civil action seeks a preliminary injunction,
`the relief sought
`is
`just that—preliminary. A
`preliminary injunction is not the district court’s final
`say on the matter. Rather, the court retains control
`over the litigation on the merits. See eBay, 547 U.S. at
`391–92.
`Because the NLRB, not the district court, controls
`the litigation on the merits after a Section 10(j)
`injunction is issued, courts should apply at least the
`same standard of review before issuing a Section 10(j)
`injunction. It is the district court’s only opportunity to
`assess the merits of the case.
`Second, because Section 10(j) injunctions last for
`the duration
`of
`the NLRB’s administrative
`proceedings, they are only as “temporary” as the
`NLRB wants them to be. The NLRB’s adjudicative
`
`
`
`
`16
`
`process is notoriously slow. See Miller v. Cal. Pac.
`Med. Ctr., 991 F.2d 536, 543 (9th Cir. 1993) (“Such
`delay is a recurrent problem in section 10(j) suits, as
`Board proceedings are notorious for their glacial
`speed in adjudicating unfair labor practices.” (cleaned
`up)); Kobell v. Suburban Lines, Inc., 731 F.2d 1076,
`1102 (3d Cir. 198
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