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NAM to SCOTUS: Disavow Test That Harms Employers

The U.S. Supreme Court should reject a lenient test used to grant the National Labor Relations Board temporary injunctions for the duration of board administrative proceedings, the NAM said in an amicus brief filed Monday.

What’s going on: The NAM and several other business groups filed briefs “telling the high court to reverse a split 6th Circuit ruling that upheld a district court’s [temporary] injunction against Starbucks [in a case concerning seven fired Starbucks employees in Memphis, Tennessee]. The organizations argued that the 6th Circuit relied on a legal standard that makes it easier for the NLRB’s general counsel to win their … injunction bids,” Law360 (subscription) reports.

  • Starbucks was forced to reinstate the terminated workers pending completion of the NLRB’s administrative proceedings on unfair labor charges against the company. 

Why it’s important: At the heart of the issue is the two-pronged test used by some federal courts to award interim relief while administrative proceedings are pending.

  • The test “looks at whether there is ‘reasonable cause’ to think an employer violated the [National Labor Relations Act] and whether the requested injunctive relief is ‘just and proper,’” according to the article.
  • If the NLRB determines that there is such cause, it may—without considering competing facts presented by the employer—grant the employee(s) preliminary relief.
  • This relief may consist of forced employment reinstatement, union recognition or other measures.
  • The board is seeking temporary relief more frequently—while also rapidly overturning existing legal standards to tip the playing field in unions’ favor. This underscores the need for the Supreme Court to review the 6th Circuit’s ruling.

The NAM says: “The 6th Circuit’s watered-down rule for preliminary relief means that employers are unable to meaningfully challenge either the one-off union favoritism or [NLRB] policy changes in the context of [these] injunctions,” the NAM writes in its brief.

  • The test “poses a significant threat to businesses … [by] enabl[ing] the board to control an employer’s core operations—e.g., which employees it hires and fires, and what shifts they work; what an employee manual requires and permits; and what plants it opens and closes.”​​​​​​
  • The injunctions can last years, “assur[ing] unwarranted, long-term meddling in employers’ lawful business practices,” the NAM continued.

What should be done: The NLRB should use a more stringent test to approve injunctions in these cases, the NAM told the Supreme Court.

  • “Under the [recommended] test, board attorneys must prove that they are likely to succeed on the merits of the case, that not granting an injunction would lead to ‘irreparable harm,’ that the balance of interest is favorable to the NLRB and that the injunction would be in the public interest,” according to Law360.
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