Courthouse Steps Decision: Starbucks Corp. v. McKinney

Chayila Kleist: Hello and welcome to this FedSoc forum webinar call. Today, June 21st, 2024, we're delighted to host a Courthouse Steps Decision on Starbucks Corp. v. McKinney, an interesting case at the intersection of administrative regulation and labor law that was recently decided by the court. My name is Chayila Kleist and I'm Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's program as the Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, I'll keep my introduction of our guest today brief, but if you'd like to know more, you can access his impressive full bio at fedsoc.org. Today we are fortunate to have with us Roger King, who is Senior Labor and Employment Council with the HR Policy Foundation where he specializes in labor and employment, healthcare, collective bargaining, collective administration, and representation campaigns.

Before coming to the Association, Roger was a partner with Jones Day. He also formerly served as a Captain and Legal Services Officer in the United States Air Force, on the staff of the United States Senator Robert Taft Jr, he was appointed as Professional Staff Counsel to the United States Senate Labor Committee and has done many other roles. He's testified before the United States Senate and House labor committees and is a Fellow of the College of Labor and Employment Lawyers, as well as serving on the Advocacy Committee of the American Society for Healthcare Human Resources Association and on the Executive Committee of the Ohio State Bar Association Labor and Employment Law Section Council. And I'll leave it there, a last note and then I'll hand it over to Mr. King for a set of opening remarks. If you have any questions, please do submit them via the question-and-answer feature found at the bottom of your Zoom screen because we'll have an extended portion of today's webinar where we can address those. With that, Roger, thanks so much for joining us today. The floor is yours.

Roger King: Well, thank you. Thank you for having me, and welcome everybody. I am speaking to you from Boise, Idaho where it's 10 o'clock-ish Mountain Daylight Time. I know we have attendees from all over the country and we welcome your attendance but we also welcome your questions or comments. So as we talk about this case, I really want to have a conversation and this is not a lecture format by any means. So again, feel free to share in the chat feature or the Q&A feature any questions or comments you may have. Alright, so the case at hand is Starbucks v McKinney, the Regional Director of Region 15, and the issue that was presented to the Supreme Court was really quite direct and I think fairly easy for anyone to intellectually and practically get their arms around. Specifically, what standards should the US district courts and federal district courts apply when the National Labor Relations Board applies for and seeks a Section 10-J of the NLRA Act injunction? Should the district court apply what has been known in many circuits or at least six circuits beyond the current grouping of circuits?

On the other hand, the just and proper approach as we'll discuss, was a reasonably easy standard to meet under traditional injunction standards. So "just and proper standard" is what certain circuit courts were applying, and in fact, to be specific, that standard was applied by the Second, the Third, the Fifth, the Sixth, the Tenth, and the Eleventh Circuits. On the other side though of the application of 10-four-partJ was the traditional four-part test that one utilizes when looking at whether an injunction should be issued. And the circuit courts that applied the traditional test were the Fourth, Seventh, Eighth, and Ninth Circuits. So we have a substantial split in the circuits. And just to level-set our conversation and take us all back to law school for a moment, the traditional four-part test that was applied by the circuits I just mentioned has the following four parts. Part one, as we're all familiar, the individual seeking the PI or preliminary injunction must make a clear showing that the party is likely to succeed on the merits. A very important point, which I'll come back to. That's part one. Part two is that if the injunction is not issued, the party seeking the injunction will suffer irreparable harm. Part three is that the balance of equities tips in favor of the party seeking the injunction, and part four, the injunction is in the public interest. So that's the traditional four-part test that was being applied with respect to 10-J applications. And then on the other side, again, the circuit courts that I mentioned were applying a "just and proper" test or a lower standard, if you will. So again, the issue before the Supreme Court was "Which of these two approaches should federal district court judges apply in the 10-J injunction area?"

Now before getting into the decision of the court, I want to level-set our conversation also by talking about the 10-J process and there may be attendees on the call this morning that are not acquainted with 10-J procedures under the National Labor Relations Act. So just a quick refresher course even for those of us who do practice in this area. An unfair labor practice charge could be filed by a union, by employees, or by an employer, but that's how the process starts before the board, the general counsel, the board, and the board overall jurisdictionally does not have the authority to self-initiate charges. But when an interested party or a stakeholder does file a charge, the board then conducts an investigation and determines that the charge has merit, i.e. the "merit factor." If the regional office of the board that's investigating the charge determines that the charge has merit, the regional director will take on a prosecutorial role and issue a complaint.

In this setting that we're talking about today, the regional director or the charging party can also request that the board consider filing for an injunction, a 10-J injunction, and a regional director that believes a 10-J injunction is appropriate and necessary then will file a memorandum with the General Counsel of the board. The General Counsel will review the matter and determine whether they will seek authorization from the five-member board to proceed to go into federal district court and see conjunctive relief. And there's always been a debate as to exactly what standards the General Counsel should review to determine whether an injunction is to be pursued and whether such a request is to be made to the board. 

Generally speaking, we've had a number of cases that what many have called "nip in the bud", these are case situations, fact situations where the General Counsel of the board and ultimately the board, in authorizing a 10-J, determines that the acts of the party that's being questioned, the respondent if you will, are so egregious or in need of immediate attention that they need to be stopped in their tracks - they need to be "nipped in their bud." And I'll get to the facts of this case in a moment. There are other situations where the allegations are such that the General Counsel believes that unless an injunction is issued, the union organizing campaign or the activities of the respondent are so egregious that they need immediate attention and any long-term relief will simply not be appropriate to keep the jurisdictional integrity of the board and the intent and objective of the act in place. So that's the procedural framework of how a 10-J system works. There are various steps that the board has initiated before a 10-J injunction is ever sought. As mentioned in the dissent in the Starbucks case, there are relatively few 10-J injunctions that are sought by the board. I believe the count that Justice Jackson in her dissent mentioned was 14 out of roughly 2,000 cases that she put in the microscope for review.

All right, so that's the background of 10-J. Let's go to the facts of this case. Always important to look at the facts of any matter. Here, as you are well aware, the Starbucks company was facing a union organizing drive at one of its stores - this store was in Memphis, Tennessee. The union organizing committee had been very active and had initiated a very active drive to secure the support of the workers and ultimately get an election. Part of that organizing committee's campaign involved bringing in a TV crew from a local news station after the store had closed and having interviews with Starbucks employees at this store stating their reasons and rationale to bring in a union to that store, i.e. why they were engaging in the union organizing drive. Now that group of employees did not seek prior permission to come into the store after it was closed and according to Starbucks, there were a series of violations of company policies by letting in members of the media without authorization, particularly after the store had been closed for the day.

Starbucks launched an investigation the following day after this evening event and ultimately terminated a number of employees at the store and indeed terminated five of the six members of the union's organizing committee. The union files an unfair labor practice charge, the regional office of the board investigates, a complaint is issued, and in that process, the union and the regional director of the board pursue a 10-J injunction theory. As I just stated, the regional director then files a memorandum with the General Counsel of the board seeking authority to go into federal district court to get a 10-J injunction. The General Counsel reviews this request and in this case, agrees and submits a memorandum to the five-member board and the five members of the National Relations Board. The board considers the 10-J request and approves it and that's how this case gets into the courts.

So the Regional Director and the General Counsel of the board go forward with a complaint and the case is argued in federal district court and the district court judge agrees and issues a 10-J injunction. Now we're in the Sixth Circuit and the Sixth Circuit as I mentioned previously, is one of the circuits that applies the "just and proper standard", not the traditional four-part injunction test, and under the "just and proper" standard, many have at least from a management perspective, argued that it's way too lenient and doesn't require the district court to go through a rigorous analysis of what a four-part injunction test would require. The district court applied the "just and proper" test and issued, as I noted, the injunction. Starbucks takes an appeal to the Sixth Circuit. The Sixth Circuit's three-member panel is obligated to apply circuit case law and as I noted again, the Sixth Circuit is a "just and proper" circuit, applies the "just and proper" standard, and finds the district court acted appropriately and denies Starbucks' appeal and the injunction remains intact.

Starbucks then seeks review in the US Supreme Court and files a petition for cert. The cert petition is granted, primarily on the split of circuits issue that I outlined with you a few minutes ago. So the court takes the case, and again really the sole question before the Supreme Court is what test should the district courts utilize? Should the district courts utilize the "just and proper" standard - a more lenient standard - to determine whether injunctive relief should be issued, or should the district court apply the traditional four-part injunction test that we reviewed at the top of this discussion?

The Supreme Court, as you now know, issued its decision a few weeks ago and it was really interesting to me and others that watched the Supreme Court closely. We had eight and a half votes in favor of the Starbucks position, in favor of requiring the traditional four-part test to be utilized in 10-J injunction proceedings. And why do I say eight and a half? Well, even Justice Jackson in this case agreed that the traditional four-part injunction test had to be utilized, and must be utilized by the district courts. But interestingly, she then filed a, I believe it was a sixteen-page part-affirmance, part-dissent, and most of her rationale and most of her partial dissent. It takes up the part of the opinion that we're going to talk about. However, the majority opinion is only 11 pages and it's straightforward, and it goes right to the heart of the matter and talks about injunctive relief and the requirements for the same.

So let's go to the majority opinion then we will certainly talk about Justice Jackson's one-half dissent, as I label it in this case. So first the court - and properly so I believe - looks at the history of injunctive relief and looks at how Congress has authorized injunctive relief in certain situations in other statutes and then ultimately, of course, gets to the National Labor Relations Act. And Justice Thomas writes the majority opinion. I should note for the record that my organization, the HR Policy Association along with the Coalition For A Democratic Workplace, filed an amicus brief in the case - I co-authored the Amicus Brief, but the Morgan Lewis law firm was the primary drafter and they just did an excellent job. I was very pleased to be associated with the drafting process. So just for the record, that was the position that HR Policy took in this case.

So going back to Justice Thomas's opinion, and I believe probably many of you have read the opinion, but as you'll see, Justice Thomas really does I think an excellent job in setting the table if you will, talking about the fact that any injunction including 10-J injunctions of course, are extraordinary relief. I mean anytime we're talking about injunctions, whether it be state court or federal court, we're talking about courts exercising their jurisdiction in the matters of equity. We are looking at situations, examining situations where by either common law or by statute, the court has been granted considerable powers to use its discretion to formulate what it believes to be an appropriate interim remedy. But in doing so, the jurisprudence is very clear that the courts have to exercise extraordinary caution and have to look at the request in the vein of the impact upon the other party, and as we get to the four-part tests, again we will examine that analysis in more depth.

But again, the history of jurisprudence in this area of injunctions and active relief really is without question. And even Justice Jackson in her partial concurrence readily acknowledges that, to her credit. I mean there really isn't from my perspective any room for debate here on the issue or question of extraordinary relief in the injunction area. So after the court disposes of that analysis, it then talks about how the 10-J injunction process works, and again I think does a good job in articulating how the 10-J process actually works in the federal courts and of course, lays out the split in the circuits. And then the majority opinion looks at the government's case and examines the government's arguments. The first really major area I think that we should talk about is the argument that the government makes that if the Supreme Court goes too far in its opinion and puts so much of an imprint upon how the 10-J injunction process works, it will essentially open the doors for federal district courts to become in essence members of the National Labor Relations Board and that they will be intimately involved in deciding the case before they make a decision on the injunction request. The court dismisses that and I believe properly so. And the court essentially says - and I'm paraphrasing from the majority opinion - "No matter how searching the district court's merits inquiry may be - or what evidence it considers or credits - the board remains free to proceed on its own administrative procedures and processes and determine the case as it, assuming the case ultimately gets to the board, as it deems appropriate."

So simply stated, that the board retains complete jurisdiction ultimately on how to decide the case. And no matter how deeply involved a district court might get into a case and applying the four-factor test, the board nevertheless retains complete jurisdiction as to its ultimate disposition, at least at the agency level. So I believe that the argument advanced by the government was fairly easily dismissed and the court goes on to say in that discussion that irreparable harm and the other three parts of the traditional test are not part of the board's decisional process or part of the NLRB decision making approach to cases, i.e. the board has its own approach to the case will apply its case law and make its decision.

Second, the argument that the board is going to be somehow disadvantaged here if the court doesn't agree with the government's case and stated alternatively that the courts including the Supreme Court owe the National Labor Relations Board and its interpretation of the National Air Relations Act, great deference because Congress has delegated to that executive agency the jurisdiction to form and utilize its so-called expertise in deciding matters under the National Labor Relations Act, and that the four-part test diminishes or unnecessarily underpins the board's jurisdiction as the expert in labor relations matters. The court dismisses that argument also, indicating that the injunction approach doesn't represent the board's formal position or final position in the case, i.e. the board's ultimate decision will speak for itself and this is a preliminary part of the case. So there's no undermining of an ultimate board, excuse me, decision or jurisdiction here. That test comes later if and when the case at issue gets to the board for decision.

So that's a completely different discussion and again, there is no undermining or any attempt whatsoever, going to the four-part test, to diminish the ultimate decisional authority of the National Labor Relations Board. So with those basic approaches and responses to the government's argument, the court has a relatively easy time in finding that there was no intent by Congress when it enacted 10-J to not apply the traditional four-part jurisdictional approach and requirement before a preliminary injunction is issued. And even though the words "just and proper" do appear in the Section 10-J statute - or 10-J section I should say, of the National Labor Relations Act, those words merely inform the district court that it uses its equitable approach. Its equitable discretion In applying the traditional four-part injunctive relief test. The court really disposes rather quickly of any statutory argument to the contrary. And again, just to conclude the majority side of the discussion, eight justices totally agree with the majority approach. Justice Jackson agrees in part, concurs in part, and does agree that the traditional four-part test must be utilized by the district courts in granting 10-J relief. Let's spend just a few minutes talking about Justice Jackson's partial dissent.

She indicates that when federal district court judges now are going to be applying the four-part test, they must take into consideration the statutory context in which 10-J appears in the National Labor Relations Act and that they must consider the expertise of the board and they must take an approach in deciding whether to grant the request for objective relief and particularly on the first prong of the test, the potential likelihood of success on the merits, that federal district court judges should consider how the board would likely decide the case. I do not agree with that approach by Justice Jackson. I know many of my management side colleagues don't either. The rationale for not agreeing is that a decision of the National Labor Relations Board is subject to appeal by any adversely affected party, and as we have seen most recently there have been numerous instances where decisions of the National Labor Relations Board have not been upheld by the circuit courts, and board orders have not been enforced.

So this is going to be an issue for those that practice in this area - the substantial likelihood of success on the merits as part one of the four-part traditional injunction test, the likelihood of success being decided by the board or ultimately the courts. And since the courts have ultimate authority on NLRA issues of interpretation, I believe the better argument is that the federal district court judge should also consider circuit court case law, Supreme Court case law, and the overall jurisprudence of the National Labor Relations Act, not just how the NLRB would interpret the act in a given situation, but that's one area of contention and discussion in this partial dissent, we'll see how it plays out in the federal district courts. Justice Jackson goes on to indicate that the board and its expertise really is owed and has been given considerable deference by the Federal Court of Appeals and Supreme Court.

So that deference factor by the courts should be factored into the federal district court judge's analysis in deciding the likelihood of success on the merits, and she cites a traditional approach to this case law that those of us who practice in the area are well acquainted, where the courts will give substantial deference to decisions of the National Labor Relations Board if the evidence on the record as a whole considering all elements of the record supports the board's position, and the board has given a reasoned and thoughtful interpretation, a rational interpretation of the act, that its decision is not arbitrary or capricious, and that those standards favor the National Labor Relations Board interpretation of the act.

So again, getting back to the substantial likelihood of success on the merits factor, the federal district court judges should be cognizant of the so-called "limited ability" of the federal courts to set aside board decisions. I wouldn't agree with the word "limited", but there certainly are constraints on how far a court of appeal or the Supreme Court can go in reversing the decisions of the National Labor Relations Board, and she makes that point and I think she makes it quite well. And then she really goes on to make more of just a policy argument that injunctions in the jurisprudence history of this country were initially misused and abused by employers and utilized to suppress worker rights and/or suppress the ability of unions to engage in organizing activity. That resulted in the Norris–LaGuardia Act and other initiatives by Congress to limit the ability of the courts to interfere with employee rights and union organizing campaigns. So accordingly, there was a need for 10-J relief and there was a compelling need for the National Labor Relations Act and the National Labor Relations Board to be aggressive in asserting the rights of employees, hence 10-J should be looked at in that historical context of protecting employee rights.

I think that's essentially her take on 10-J and that federal district courts then should interpret their ability to grant equitable relief in that historical context and in the context of the objectives of the National Labor Relations Act. Well again, I think that's certainly a valid point, but that's irrespective of the point of whether the case before the judge meets the four-part test, and while historical context can maybe inform to a limited degree why we have 10-J, it is not dispositive. So I think it will be difficult for federal district court judges frankly to utilize any part of the partial dissent to undermine the traditional four-part test. Do we have a comment or a question?

Chayila Kleist: We do, yes. I was going to let you finish out your comments on the dissent in case there were any but we are happy to transition to a time of Q&A if that's useful to you.

Roger King: Okay. Shall I keep proceeding?

Chayila Kleist: Feel free, yes. And then we can do questions whenever you're done.

Roger King: All right. So that's the legal part of this discussion and for those of us again that follow the court, having the court have near - almost near unanimity on any issue is I think somewhat surprising, right? Given the divisiveness of the defensiveness of issues that the court has to decide. So I think in conclusion on the legal side of this discussion, the matter is well settled federal district court judges are going to be required to strictly comply with the traditional four-part test. Now the practical significance, and before I go into that, I'm happy to entertain a question or comment.

Chayila Kleist: Yes. Oh, we have a non-lawyer in the audience who's going to ask if you could explain briefly the concept of balance of equities.

Roger King: The balancing of the equities?

Chayila Kleist: Yes.

Roger King: So you look at the arguments on one side, how strong are they, how compelling are they? You measure that against the arguments being advanced on the other side and you weigh which set of arguments has the greater weight, has the more persuasive weight, and has the path toward reaching a conclusion that the injunction in this case should either be granted or denied. So it's a totality of circumstances test weighing the merits or lack thereof, of arguments on either side. Hopefully, that's responsive.

So let's just put aside the legal issue here, which I think is well-decided and well-articulated by the Supreme Court. What's the practical significance? The General Counsel of the board at present, Jennifer Abruzzo, a very bright, very competent lawyer, knows the NLRA inside out quickly based on her past service at the board prior to becoming General Counsel. But that said, she has pursued a very aggressive agenda and she is testing in many cases novel theories of interpretation of the act almost exclusively on behalf of the employee or union side to the detriment of employers.

And she has taken some of those theories where she's been given permission by the board in 10-J cases to the district courts. If we did not have the result of the Starbucks case, certain federal district court judges may believe they would've had the leeway to be very flexible in interpreting requirements of whether a 10-J injunction should be granted and side with the General Counsel. And lemme give you just one specific example of that. In a case called Sacks v. I.N.S.A. out of the federal district court in Massachusetts, the General Counsel of the board sought an injunction against a company that had terminated two members of the union organizing committee and had allegedly engaged in other inappropriate and illegal actions.

The Cemex case, which is a recently decided case by the board, a major important policy case just to cut through it, permits the union to obtain representation without an election if the unfair labor practices are deemed to be sufficiently serious and are sufficiently egregious to support a bargaining order, i.e. an order for the employer to recognize and bargain with the union without an election. So this Cemex theory, a very novel theory being tested in the federal courts, very controversial, is put forth in the 10-J request case in the case in Massachusetts and the General Counsel seeks a 10-J order - remedies are so important in these injunction cases - requiring that the respondent employer recognize and bargain with the union on an at least interim basis while this case is proceeding up to final adjudication.

That theory had never been advanced in a 10-J proceeding and as I said, it's on appeal in the Ninth Circuit whether that theory even will be upheld by the courts of appeal. In this 10-J case, the federal district court judge grants the injunction and requires the employer to at least recognize and engage in interim bargaining with the union in question. I was on a panel with the General Counsel at a New York University Law School panel seminar earlier this year and I asked her whether the interim relief that she was seeking at the time case had not yet been decided, made practical sense, let alone legal sense, and she said, "Well it will get the parties together to talk at least and maybe they will find some common ground." Well, my response to that is I don't think you're going to see any success. I think it's a tremendous waste of time, energy, and resources of all parties and it could lead to further divisiveness.

Interim bargaining is not appropriate in this case and certainly, a Cemex relief remedy is not appropriate. So that's just one example of how far this 10-J process could have gone or would go but for the decision of the Supreme Court in the Starbucks case. And there are many other examples where, but for the Supreme Court's decision in Starbucks, this General Counsel and this board would push the outer limits of its new approach or novel approaches in many cases of interpreting the National Labor Relations Act and attempting to convince a federal district court judge to grant the relief. Now just as another practical matter for those of us who practice in this area, federal district court judges see very few cases under the National Labor Relations Act. In fact, I've venture guessed that a very large percentage of the federal district court judges in this country have never decided a case under the National Labor Relations Act.

They simply don't have jurisdiction in the area. Courts of appeal are where the decisional process takes place. So without some definitive standard or blueprint to follow, many federal district court judges are left - would've been left but for the Supreme Court's decision, or have been left prior to the decision - really on their own. And the government can come in and in many cases just overwhelm the federal district court judge with case law citations, et cetera, argue its special expertise and the federal district court and its limited clerk resources, et cetera, doesn't have the ability perhaps to rebut the case or really properly analyze it. And in many cases, some of the employers that are faced with these injunction requests don't have the resources to hire experienced legal counsel to rebut the government's position. So the so-called "just and proper", the easier standard that the Supreme Court rejected in interpreting 10-J, has been an out for the government in my opinion, and others that practice the management side, to prevail in cases here where they perhaps should not have and that the four-part injunction request case analysis will stem that tide and prevent it. So those are just two practical issues that will give federal district courts and really all parties a much clearer blueprint of how this 10-J process is to work. Are there comments or questions?

Chayila Kleist: Yes. An audience member following up on the conversation in the case on deference to the NLRB asks whether or not there could be ramifications from Loper Bright Enterprises v. Raimondo and the potential end of Chevron deference on this case and its potential future impacts.

Roger King: I thought about that, and a number of us discussed that - how much deference would come into the Supreme Court's decision in Starbucks and the court doesn't really get deeply in - the majority, really doesn't get into the deference issue, somewhat surprisingly, they're saving their powder I suppose for Loper, which I thought was going to issue this morning by the way, but it didn't apparently. But of course, Justice Jackson takes deference the other way. She argues that considerable deference should be given to the National Labor Relations Board in 10-J proceedings. But back to Loper, back to the question, I think if Loper comes out the way many of us hope and predict at least six-three, setting aside Chevron and substituting a new modality of analysis that that will help rebut the Justice Jackson partial dissent theory or rebut it maybe in its entirety that the board is to be given limited or no difference in this area, that the case that it's going to present requesting adjunctive relief just has to stand on its own factual and legal merits period and that the board is owed no special expertise or special deference. But this whole deference issue in administrative law is going to continue to surface until we get clear guidance from the Supreme Court, which we will get hopefully in Loper. But I think it does have an aspect in 10-J and frankly, I'm glad that Justice Jackson raised it because post-Loper, hopefully, the deference issue will not come into play or come into play in a very minimal way in federal district court 10-J proceedings. Any other questions?

Chayila Kleist: Yes. Continuing on the question of deference and sort of how it affected the conversation at oral argument, both the "likelihood of success" prong and the "irreparable harm" prong of the four-part injunction test were raised and discussed fairly heavily, but only the "reasonable chance of success" prong really seems to have been addressed at least in the majority opinion, if not in both opinions. Is there anything worth noting on the fact that irreparable harm is kind of set aside or is assumed to have been addressed?

Roger King: It's a good question. I frankly had thought there would be more attention to irreparable harm. So we should just dissect that in the time we have here. I mean to me irreparable harm is if you don't grant the injunction, there's no way that the requesting party will ever be placed back in the position it would've been, but for the alleged illegal act - that there's no way the status quo could ever be put back in place. So in a termination case, the terminated employee can be reinstated with back pay in the final decision of the board and/or the courts. 

Now I suppose the response to that argument is, but here five of the six members of the union's organizing committee were terminated and the chill factor that then would occur or did occur allegedly at this place of employment on any other employee wanting to support the union would be so substantial that we could never have the status quo. I mean you go back and forth, I mean what is irreparable harm? I think the irreparable harm factor should have been given more consideration by both the majority and also Justice Jackson in her partial dissent frankly. So I think it's a legitimate question to ask and it's going to be an area for continued debate for sure.

Chayila Kleist: Got it, thank you.

Roger King: Other questions before I go to my next point?

Chayila Kleist: Oh, one other question on oral argument and then we'd love to hear - so oral argument and as you mentioned the statistics surrounding the rate at which the NLRB requests these injunctions were raised, and then Justice Jackson obviously cites it in her opinion that doesn't dissuade the majority, but how could it affect the way that substantial likelihood of success on the merits is understood for future injunction applications? Could it affect the way lower courts think about will this case fulfill that prong - or those future cases fulfill that prong?

Roger King: Right. Again, a good area for discussion. I mean the government said to the court, "Look what's really the big problem here? We very seldom ever go in and ask for injunctive relief." Well, that begs the question as I just mentioned, in the Massachusetts case, it's not the quantity, it's the type of injunction you're asking for. And if you're asking for injunctive relief and some of these novel cases that push the outer limits of the NLRA, even one or two decisions are particularly harmful and inappropriate. So I am not persuaded that the relatively few number of 10-J requests has any bearing on the issues that were addressed in Starbucks. So putting that aside, it's interesting that the question takes me to the very end of Justice Jackson's partial dissent. She seemed to suggest in our last paragraph that the majority decision will somehow chill the board and discourage the board from seeking 10-J relief because they now are going to have to face a much more difficult standard, and if they're not given deference, and if federal district court judges don't believe they have great expertise, the board's going to have a difficult time getting 10-J relief and they simply won't pursue 10-J injunctions. 

I frankly don't think this General Counsel is going to be chilled in any way, shape, or form. She hasn't so far in arguments that the employer community has made and the circuit courts have put forth in refusing to agree with her theories. But I mean, it's an interesting area. Will the general counsel - will the board seek fewer 10-Js in the future? Maybe. So I guess all I would say is if they're going to go into court and seek an injunction, be prepared, NLRB, to satisfy all four parts of the test including irreparable harm, but most importantly likelihood of success on the merits. Any other questions before I go to a final point?

Chayila Kleist: One last one and then would love to hear the final point. The board - this is from an audience member - the board has sought 10-J injunctions requiring employers to continue recognizing unions that a majority of employees have repudiated in board-conducted secret ballot elections. Could the court's decisions affect such cases?

Roger King: I think it might. I think we may get - to the extent the board wants to engage in 10-J jurisprudence and wants to seek injunctive relief, now that we have the four-part test solidly in place, I think we may get some case law that will help employers in this area and that's sort of, that's a circular type of thinking I suppose. I hate to have any employer have to go through an injunction proceeding - it's costly, it's difficult - and have to make good case law as a result of having an injunction denied. But that's possible. It just depends on how far the federal district court judges are going to get into the NLRB jurisprudence area. Well, one last part I want to just tee up for thought - Pepper Crutcher, who is chair of the Federalist Society Labor and Employment Executive Committee, a committee on which I sit with Pepper, put a question before a committee just yesterday in our monthly conference call.

He brought to the attention of our committee a recently decided NLRB decision. It's NP Red Rock, that's Nancy Paul Red Rock, NP Red Rock 337 NLRB number 67. That's 337 NLRB number 67. The NLRB decided this case on June 17th of this year - a very recent decision, and particularly important is footnote two of the board's decision in that case and the employer in this case raised a constitutional due process argument. Essentially the argument is this: the NLRB - as I said at the outset of this call - ultimately decides whether to grant the General Counsel authority to go into federal district court to seek an injunction so the board members have to vote on that authorization. In this case, two board members, Member-Chair now Chair, McFerran, and Board Member Kaplan voted to authorize a 10-J against this employer, NP Red Rock, and the case goes into court on a 10-J and then the case ultimately gets to the board and it decides the case as I just mentioned on June 17th.

Well, the employer argues that Kaplan and McFerran - McFerran and Kaplan should be disqualified from voting on this case since they already were involved in the case and found against the employer, at least to the point of authorizing a 10-J to issue, i.e, they had prejudged the position to the detriment of the employer and therefore the atmosphere, the environment, the adjudication process if you will, at the board level had already been poisoned by two negative votes on the 10-J issue. Therefore, they should have been disqualified from participating in the case. The board, as you will note, if you read footnote two rejects that due process argument citing the Supreme Court decision in Withrow v Larkin. It's a decision in the Supreme Court in 1975 and 4 21 US 35 is the cite, and the board says, look, this issue has already been decided by the Supreme Court that a court or administrative agency can be involved in a preliminary stage of proceedings and yet still ultimately decide the merits of the case at a later stage or the ultimate decision-making stage of the case.

I think you could argue maybe that Withrow is distinguishable. I'm not sure. I haven't given a lot of thought yet. I know the board in footnote two does cite a number of court of appeals decisions where this theory has been rejected. But for those practitioners on the call today who do get involved in 10-J proceedings and where their client then also ultimately gets to a stage of board proceedings where the board issues their final decision, it's something perhaps to think about. Let me stop there. We've covered a lot of ground and just in summary, we now have clear guidance from the US Supreme Court to the Federal District Courts in 10-J NLRA proceedings. District courts must strictly follow the traditional four-part injunctive relief test. If they don't follow a such test, they're going to be subject to reversal in the circuit courts. This particular case, Starbucks case has been remanded by the Sixth Circuit for the lower courts to decide the case pursuant to the new standard. We'll see how that ultimately comes out. I'll stop there. Any other questions or comments from attendees?

Chayila Kleist: Don't think so. So I mean, you've done a fabulous job of covering the case, how we got here, the decisions, and the impacts. Really, really appreciate it. I mean, both sides said in the OA it was going to be a short decision. It was, but it's certainly an interesting one. You've done an excellent job covering the impacts it may have. Since we have no more questions, I think we can wrap it there. Thank you for joining us today. I really appreciate the time, the expertise, and the breakdown of the case. It's fascinating and always appreciate getting to have experts on to talk about it.

Roger King: Well, thank you for having me. Anybody who wants to spend a Friday morning - or Friday afternoon in this case - maybe talking about 10-J or the National Labor Relations Act, I certainly would enjoy talking to them at a later point, but thank them. Thank you to them for attending and staying with us for sure.

Chayila Kleist: I'll echo those thanks. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected], and as always, keep an eye on our website, and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.