NLRB decisions face skeptical courts

During the Biden administration, an ambitious and aggressive National Labor Relations Board (NLRB) has issued several precedent-breaking rulings addressing issues as broad as protected speech and union representation to the specifics of employer handbook provisions and severance agreements. Many of these decisions are now being heard by appellate courts. One unusual case has even made it to the Supreme Court. What follows is a status report on some of the challenges to the Board’s rulings.

Starbucks Corp. v. McKinney

This is the widely reported “Memphis 7” case. The Board accused Starbucks of unfair labor practices during a union election campaign, including the illicit termination of seven employees.

While the case was being litigated, the Board sought a 10(j) injunction, effectively seeking the re-instatement of the employees during the pendency of the litigation. As it happens, there is split among the appeals courts over the appropriate standard for granting 10(j) injunctions.

The Supreme Court is currently considering the case, and once it rules, a subsequent hearing will determine whether Starbucks can be enjoined. Because the NLRB’s General Counsel (GC) Jennifer Abruzzo has stated the Board will seek injunctions more frequently, this case has taken on an importance rarely given to agency procedural matters.

Cemex Construction Materials Pacific, LLC v. NLRB