On June 13, 2024, the United States Supreme Court held in Starbucks Corp. v. McKinney, No. 23-367, that the National Labor Relations Board (NLRB) must satisfy the Winter[1] test to secure a preliminary injunction. The Winter test requires a plaintiff to show that he is likely to:

  1. succeed on the merits,
  2. suffer irreparable harm in the absence of preliminary relief,
  3. that the balance of equities tips in his favor, and 
  4. that an injunction is in the public interest.

Under Section 10(j) of the National Labor Relations Act, the NLRB can apply to a United States District Court to enjoin an employer from committing acts that the NLRB alleges violated Sections 7 and 8 of the National Labor Relations Act. The Supreme Court determined the appropriate standard upon which a district court can enter a preliminary injunction after application from the NLRB.

This case came to the Supreme Court on a grant of certiorari to the Sixth Circuit Court of Appeals. The Sixth Circuit, like several other Circuit Courts of Appeal, applied a “reasonable-cause” standard in evaluating the NLRB’s application for preliminary injunction. The reasonable-cause standard created a lower threshold for the NLRB – the NLRB simply had to show that it had “reasonable cause to believe that unfair labor practices have occurred[2].”

The Supreme Court held that the Sixth Circuit’s test misapplied the statutory scheme under Section 10(j) of the National Labor Relations Act. The Supreme Court stated that Section 10(j) is simply a mechanism by which the NRLB can seek preliminary injunctive relief. The Supreme Court did not find any language in Section 10(j) that would suggest Congress intended to displace “traditional equitable principals” espoused in the Winter test.

The Supreme Court made clear that the NLRB must play by the same rules as any other litigant when seeking preliminary equitable relief. Employers now have greater latitude to educate their employees about unionization.


[1] v. Natural Resources Defense Counsel, Inc., 555 U.S. 7 (2008).

[2] McKinney v. Ozburn-Hessey Logistics, LLC, 875 F.3d 333, 339 (6th Cir. 2017), overruled, Starbucks Corp. v. McKinney, No. 23-367 (U.S. 2024).