As the New York Times reported, workers, who called themselves the "Memphis Seven," said that they were fired for their unionization efforts and that the company didn’t typically enforce the rules they were accused of violating. The National Labor Relations Board found that Starbucks had violated federal law by engaging in protected “concerted activity” which led to a federal judge ordering their restitution.
In response, AFL-CIO President Liz Shuler rightly noted the court had “sided with corporate power… in a direct attack on the fundamental freedom to organize a union on the job. The NLRB exists to resolve labor disputes and ensure workers can exercise our right to join a union, free from intimidation and retaliation. The board obtained an injunction in federal district court to reinstate the Memphis Seven while deciding the case. The system worked as it is supposed to—until the Supreme Court got involved.”
The court "sided with corporate power… in a direct attack on the fundamental freedom to organize a union on the job."
Similarly, Starbucks Workers United President Lynne Fox noted that “working people have so few tools to protect and defend themselves when their employers break the law. That makes today’s ruling by the Supreme Court particularly egregious. It underscores how the economy is rigged against working people all the way up to the Supreme Court.” Starbucks workers, Fox added, “are continuing to organize…Workers’ momentum is unstoppable and they will not let the Supreme Court slow them down.”
In its decision, the Court majority held that the NLRB was imposing a stricter standard than other agencies requiring a finding of “irreparable harm” for a preliminary injunction, not just “reasonable cause” that that the case would ultimately be won.
Section 10(j) of federal labor law was added under the infamous 1947 Taft-Hartley Act as an amendment to the1935 National Labor (Wagner) Act while implementing multiple impediments to undermine the 1935 NLRA. It permits the National Labor Relations Board (NLRB) to seek an injunction to prevent irreparable harm while the NLRB’s administrative processes determines whether a violation has occurred. But there was also a consequence of a lengthy legal process for workers seeking justice while battling intransigent employers.
The Court decision was 8–1, with a dissenting concurrence by Justice Ketanji Brown Jackson. She accepts the majority position that a “regulatory enactment” must meet a “clear and valid legislative command” for “equity relief” in ascertaining “congressional intent” of the Taft-Hartley statute for issuing an injunction. But in a textbook analysis, Jackson rightly explains what is so fundamentally wrong with the ruling.
“To put it bluntly,” Justice Jackson writes, “courts exercising their equitable discretion amidst labor disputes today do so against the backdrop of an ignominious history of abuse.” The NLRA she notes, was directly enacted to “eliminate the causes of certain substantial obstructions to the free flow of commerce” by protecting workers’ rights, codifying the right of workers to form and join unions, collectively bargain, and to strike. It’s a valuable reminder.
To address rampant employer abuses against those rights, Congress did not “leave it up to the courts” to protect those rights, but specifically “created an expert agency, the (NLRB) to investigate, adjudicate, and stop unfair labor practices.” However, “delay in vindicating labor rights during the ‘notoriously glacial’ course of NLRB proceedings can lead to their defeat.”
In the Starbucks case, the employer fired members of the organizing committee in February 2022, “just as a campaign for unionization was building momentum,” and the case remains pending “now more than two years later.” It was precisely “to respond to situations such as this one,” says Jackson, that Congress “gave the Board specific power to seek preliminary injunctive relief” with a 10(j) preliminary injunction.
And, she adds, “there is broad consensus about why Congress allowed the Board to seek §10(j) injunctions.” The Senate Report on Taft-Hartley stated:
“Time is usually of the essence in [labor disputes], and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives — the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices.”
In fact, 10(j) injunctions are exceedingly rare, as Jackson adds. Of some 20,000 unfair labor practice charges filed last year, the NLRB only sought a 10(j) injunction 14 times. In contrast to the majority decision arguing a 10(j) should only be issued when there is conclusive evidence the union will ultimately prevail in the final decision, Jackson concludes, that “means that, by the time the district court gets a (rare) §10(j) request, the Board has already deemed an unfair labor charge likely meritorious, and has determined that preservation of the status quo is needed to facilitate its own likely judgment.”
The current Supreme Court and judges appointed by Trump in his first term, and his commitment to appoint many more if he wins again. It is an important reminder of why the presidential election in November is critical for worker’s rights.
Historically, the “irreparable harm” is more often to a union’s campaign to win a fair collective bargaining agreement more than just re-instating workers fired for union organizing. Employers know full well they can exploit the delays baked into what Jackson calls the “glacial” legal hurdles allowing them to stall, delay, and sabotage bargaining for years even after a union has won an organizing election in the face of massive union busting by employers and the millions of dollars they spend on anti-union campaigns.
For decades under every Republican president, the NLRB has been stacked with management attorneys who protect corporate interest not workers and their ability to form unions to improve their lives and their workplace conditions. The current NLRB, with a pro-worker, pro-union majority appointed by President Biden reversed that trend, replacing the hostile management attorneys appointed by ex-President Trump.
That’s why the Washington Post reports, “legal experts say the decision could have a chilling effect on union drives during a period of heightened labor activism.” Further, the decision could fuel an increasing reluctance of NLRB Regions to even consider efforts to seek 10(j) relief, thus effectively chilling the exercise of rights purportedly guaranteed by the NLRA.
Rutgers University labor law professor James Cooney tells the Post, “this could hurt unions from obtaining relief through the board, particularly if you have a district court judge who doesn’t know labor law or quite frankly is a real conservative and is going to always back the business.”
In other words, the current Supreme Court and judges appointed by Trump in his first term, and his commitment to appoint many more if he wins again. It is an important reminder of why the presidential election in November is critical for worker’s rights, and why real legislation, such as the Protecting the Right to Organize (PRO Act) bill, is essential to redress the injustices of decades of anti-union neoliberal policies.
