NLRB Injunctions Are Now More Difficult to Obtain, At Least in Some Jurisdictions


In Starbucks Corp. v. McKinney, the Supreme Court held that a more stringent test applied to lawsuits filed by the National Labor Relations Board (the “Board”) that seek injunctions to halt serious labor violations.  While the decision directs district courts to adopt the tightened standard, several circuits, including the Fourth Circuit, have already been consistently applying the higher standard.


This case began in February 2022 when Starbucks terminated the employment of seven workers who were attempting to unionize their store.  The NLRB obtained a court order forcing Starbucks to rehire the workers while the unfair labor practice case progressed through administrative proceedings, which can often take up to two years to resolve.  The case was appealed to the 6th Circuit Court of Appeals which upheld the lower court’s ruling, and Starbucks ultimately appealed to the Supreme Court.

The Standard

Under the now-nationally-applied standard, district courts are to consider: 1) whether the Board is likely to succeed on the merits of the underlying case, 2) whether the Board’s power to remedy the violation will be “irreparably harmed” without an injunction, 3) the balance of the Board’s interest and the employer’s interest, and 4) whether an injunction would serve the public interest.  Previously, many courts considered whether the NLRB’s request for an injunction was “just and proper”.

What Now?

While this 8-1 decision does not change the law of the land for courts that have been applying this standard, the decision should prevent or at least reduce inconsistent decisions by outlier lower courts by applying a consistent federal standard.  Practically, the decision will likely not have an impact on the evidence presented to courts when the Board seeks an injunction, as the Board has and will continue to put on its best case to show it is likely to succeed on the merits.  However, a uniform standard should prevent different outcomes in different circuits under the same facts, as was possible when using the two different standards.  This is crucial given the current Board’s aggressive approach of seeking injunctions under Section 10(j) of the National Labor Relations Act.