Deference to agencies is in disfavor.1 And while the demise of Chevron2 has dominated legal discourse,3 the Supreme Court’s evolving views on agency deference in specific areas also merit attention. Rolling back deference in the labor law context, for example, can both have an outsized impact on Americans’ everyday lives4 and portend more extensive rollbacks to come. One such example involves section 10(j) of the National Labor Relations Act5 (NLRA), which authorizes the National Labor Relations Board (NLRB) to seek preliminary injunctions in federal district court to enjoin unfair labor practices while the NLRB adjudicates the merits of the matter. Because the NLRA expressly allocates adjudicatory authority to the NLRB rather than the courts,6 courts have been deferential to the NLRB’s preliminary factual and legal positions in these injunctive proceedings. The Sixth Circuit exercised such deference by applying a two-part “reasonable-cause” test to section 10(j) preliminary injunctions,7 rather than the traditional four-part test articulated in Winter v. Natural Resources Defense Council, Inc.8 But no longer. After the NLRB successfully obtained a section 10(j) injunction in the Sixth Circuit against Starbucks to halt its union-busting activity in a Memphis location, Starbucks appealed to the Supreme Court.9 Last Term, in Starbucks Corp. v. McKinney ex rel. NLRB,10 the Supreme Court held that the NLRA did not displace the traditional principles of equity, determining that the four-part test for preliminary injunctions applies in section 10(j) cases instead of the Sixth Circuit’s two-part test.11
Indeed, on the question of the appropriate test, the Court was unanimous.12 Under the two-part test, a court grants a section 10(j) injunction if: (1) “there is reasonable cause to believe that unfair labor practices have occurred”; and (2) “injunctive relief is ‘just and proper.’”13 But the Court reasoned that nothing in the text of the NLRA jettisoned the presumption in favor of the four-part Winter test.14 Under that test, the petitioner must show: (1) they are “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm”; (3) “the balance of equities tips in [their] favor”; and (4) the “injunction is in the public interest.”15 In addition to resolving the circuit split on the appropriate test to employ,16 the Court also held — over Justice Jackson’s partial dissent — that the NLRB is not entitled to deference in section 10(j) proceedings.17 The majority reasoned that the “statutory context does not compel” deference to what the Court labeled the NLRB’s “convenient litigating position.”18 But though the Court limited the scope of deference in the section 10(j) context, it did not necessarily extinguish it. Because the Starbucks decision did not discuss parallel proceedings — an already-initiated agency adjudication concurrent with a federal district court’s evaluation of a preliminary injunction — the Court’s decision need not disturb courts’ deference to decisions of Administrative Law Judges (ALJs). ALJ decisions remain a useful benchmark for assessing likelihood of success on the merits and bear the hallmark of impartiality.
Starbucks is one of the world’s largest companies, employing around 400,000 people19 in over 35,000 stores across more than 80 countries.20 In 2021, a group of employees formed a union, Starbucks Workers United, to coordinate organizing efforts across the country in pursuit of better pay and working conditions.21 Over the past few years, labor organizing at Starbucks has gained traction as workers in over 400 stores have unionized.22 Unsurprisingly, Starbucks chafed against this development.23 It was not until February of this year that the company and union agreed “to begin discussions on a foundational framework to achieve collective bargaining agreements.”24 Despite these seemingly collaborative developments, allegations against Starbucks for unfair labor practices have been numerous.25
In the present case, Starbucks fired seven employees, known as the “Memphis Seven,”26 who subsequently filed charges with the NLRB.27 The employees argued that they were fired for attempting to unionize, in violation of 29 U.S.C. § 158(a)(1) and (3).28 Starbucks, in response, asserted that the terminations were legally justified because the employees had invited television crews into their store after hours to cover the unionization effort, which Starbucks claimed posed safety risks.29 Finding that the charges appeared to have merit, the NLRB pursued formal action and issued a complaint against Starbucks.30
Generally, once a complaint is issued, the case proceeds before an ALJ, who holds a hearing and issues a decision,31 which “contain[s] findings of fact, conclusions, and recommendations.”32 The Board then reviews the ALJ’s decision, “afford[ing] deferential treatment to the ALJ’s credibility determinations.”33 Finally, the Board can seek enforcement of its order in the relevant U.S. court of appeals, which will defer to the Board’s findings of fact if they are “supported by substantial evidence.”34 This process can take years,35 however, meaning that in the interim, employers can continue their union-busting tactics unabated and render the “efficacy of the NLRB’s final order . . . nullified.”36
Accordingly, section 10(j) of the NLRA authorizes the NLRB to petition a district court for a preliminary injunction enjoining the employer from engaging in further retaliatory actions while the merits of the case are adjudicated. The court will grant this relief if it is “just and proper.”37 The Board uses “a complicated ten-step process to decide whether to request a 10(j) injunction.”38 Regional Directors first investigate the charge and assess the need for injunctive relief.39 Their findings are reviewed by the Injunction Litigation Branch of the NLRB’s Office of the General Counsel.40 If the General Counsel supports injunctive relief, they seek Board approval, and the Board votes on the issue.41 In Starbucks, the Board permitted Regional Director Kathleen McKinney to proceed with a demand for injunctive relief in the Western District of Tennessee, seeking a cessation of Starbucks’s unfair labor practices and “interim reinstatement of the Memphis Seven.”42
At the district court, Judge Lipman applied the Sixth Circuit’s two-part test and granted the NLRB’s preliminary injunction in part.43 First, she held that there was “reasonable cause” to believe Starbucks did fire the employees in retaliation for unionization efforts because the NLRB’s legal “theory [was] substantial and not frivolous,”44 and the facts were “consistent with [its] legal theory.”45 Second, citing adequate evidence that Starbucks’s actions would have a “chilling effect” on unionization,46 she held that injunctive relief would be just and proper because it was “necessary to return the parties to status quo pending the Board’s proceedings in order to protect the Board’s remedial powers.”47 Importantly, the ALJ had not yet issued any decision in the parallel administrative proceeding.48 Starbucks appealed to the Sixth Circuit.49
While the Sixth Circuit heard oral arguments, the ALJ issued his decision50 in favor of the NLRB on some, but not all, of the charges.51 The Sixth Circuit, stating it was “not compelled to defer” to the ALJ decision,52 nevertheless affirmed the preliminary injunction under the two-part test.53 Starbucks then appealed to the Supreme Court, arguing that the Sixth Circuit’s two-part test was unduly deferential and incorrectly divergent from other circuits’ application of the traditional four-part test for preliminary injunctive relief.54 The Court granted certiorari to resolve the circuit split about which test governed.55
Writing for the majority, Justice Thomas ruled in favor of Starbucks, holding that nothing in the text of section 10(j) indicated that Congress intended to depart from “traditional equitable principles.”56 Courts thus must apply the traditional four-factor Winter test in determining whether to grant a preliminary injunction.57 Justice Thomas next rejected appeals to statutory context, determining that the two-part test is a “watered-down approach to equity.”58 The two-part test, he reasoned, does not merely “fine tun[e]” the traditional, four-part Winter test, but rather “substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities.”59 This is particularly evident when comparing how the two tests treat the NLRB’s burden regarding the merits: The two-part test presents a lower bar, requiring a “substantial and not frivolous” legal theory, whereas the four-part Winter test presents a higher bar, requiring likely success on the merits.60 Justice Thomas mused that “it is hard to imagine how the Board could lose under the [two-part] reasonable-cause test,”61 as such a deferential test “render[s] the court more a spectator than a referee when it comes to matters of equity.”62
Justice Jackson concurred in part, dissented in part, and concurred in the judgment.63 While she agreed with the majority that nothing in the text of section 10(j) suggested a departure from the Winter test,64 she nonetheless reasoned that the context in which the NLRB was born should guide how courts conduct their analyses.65 Lamenting that “the majority cho[se] the simplicity of unfettered judicial discretion over the nuances of Congress’s direction,”66 Justice Jackson argued that the statutory context of the NLRA counseled in favor of at least some deference to the NLRB, even when deploying the traditional Winter test.67 She emphasized that for many years, Congress aimed to restrict excessive judicial discretion in issuing injunctions during labor disputes, preferring to delegate resolution primarily to the Board.68 Early in the twentieth century, federal courts were often seen as siding with management to hinder the formation and growth of labor unions.69 Against this backdrop, Congress established the NLRB and enabled the Board to pursue injunctions.70 Indeed, Congress recognized that empowering the NLRB to pursue injunctions was necessary to protect “labor rights ‘during the “notoriously glacial” course of NLRB proceedings.’”71 In Justice Jackson’s mind, courts should exercise their equitable discretion in labor disputes, mindful of this history of misuse and Congress’s desire to protect labor rights via speedy access to injunctive relief.72
Three elements of the statutory context, according to Justice Jackson, counsel in favor of some deference.73 First, unlike in other contexts where a district court is “making a predictive judgment about how it will rule on the merits itself,” when considering a section 10(j) injunction, it is making a judgment about the Board’s future decision.74 Second, when seeking a section 10(j) injunction, the Board is “acting in its adjudicatory capacity,” rather than as a private party.75 In that vein, the Board’s “exceedingly rigorous” internal screening procedures culled nearly 20,000 unfair labor practice charges in 2023 down to just 14 section 10(j) injunction authorizations.76 Such data strongly indicate that “the Board has already deemed” the charges underlying section 10(j) injunctions to be “likely meritorious.”77 Third, “the NLRA gives federal courts only a limited role in reviewing the Board’s decisions,” commanding deference to the Board’s factual findings.78 These three statutory qualities indicate that review of whether a claim is likely to succeed on the merits “should be far less searching than normal.”79
Starbucks, at first glance, does not seem to be particularly disruptive to the status quo or facially antilabor. Indeed, scholars have noted that section 10(j) petitions were more successful in circuits applying the four-factor Winter test than in circuits applying the two-part test.80 The government itself seemed to argue there was little daylight between the two tests, considering its “position . . . [wa]s not that courts should disregard traditional equitable principles, but rather that the statutory context should inform courts’ application of those principles.”81 Justice Thomas’s approach to deference in Starbucks, however, is what makes the decision of consequence. In holding that the Winter test is required to determine whether to issue a section 10(j) injunction, he rejected giving deference to the NLRB, arguing that to do so would be inappropriate because its preliminary findings constitute only “an agency’s convenient litigating position.”82 Given that the opinion presupposes a lack of any neutral agency proceedings, however, Starbucks need not thoroughly wring deference out of the section 10(j) process.
Specifically, Justice Thomas glossed over an important feature of the parallel nature of preliminary injunction and agency adjudication proceedings. That is, district courts often decide on section 10(j) injunctions after an ALJ renders their decision.83 Because Justice Thomas’s opinion did not directly speak to situations in which an ALJ has reached a decision on the administrative record at the time the Board seeks the injunction, courts can and should continue to afford some deference to ALJ decisions under the Winter test. Doing so would respect Congress’s express allocation of labor adjudication authority to the NLRB and the NLRB’s concomitant expertise.
The circuits that have traditionally applied the four-part test for section 10(j) injunctive relief are the Fourth, Seventh, Eighth, Ninth, and D.C. Circuits.84 These are the circuits that, in the Court’s eyes, have applied what it now calls the Winter test. Notably, these circuits have also consistently extended deference to ALJ decisions when they are presented in the section 10(j) context. For example, the Seventh Circuit has declared that “[t]he ALJ’s opinion certainly is relevant to the propriety of section 10(j) relief.”85 Because “[t]he ALJ is the Board’s first-level decisionmaker,” their “factual and legal determinations supply a useful benchmark against which the Director’s prospects of success may be weighed.”86 Courts in both the Eighth and Ninth Circuits have cited the Seventh Circuit’s reasoning,87 and courts in the Fourth and D.C. Circuits have gestured support for it too.88 Lastly, courts in both the First and Second Circuits, which apply what the NLRB labels a “hybrid test,”89 have also historically afforded some deference to ALJ decisions.90
In his opinion for the Court, Justice Thomas left the door open to such deference to ALJ decisions because he denied deference specifically to what he labeled a “convenient litigating position”91 based on “the preliminary legal and factual views of the Board’s in-house attorneys.”92 Although misleading in its disregard for the rarity and rigor that characterize section 10(j) injunction authorizations,93 his language reflects only the circumstances in which the district court rules on a section 10(j) injunction before an ALJ has reached a decision. Otherwise, it would be dramatically inconsistent with the tradition of respect between the courts and the agencies to refer to ALJs as “in-house attorneys” and their decisions as “convenient litigating positions.”94 That Justice Thomas did not have ALJ decisions in mind is further supported by his statement that “the Board remains free to reach its own legal conclusions and develop its own record in its administrative proceedings.”95 Again, such language suggests that there cannot be deference to section 10(j) injunctions sought by the Board before ALJ development of the administrative record. To put an even finer point on it, some level of deference to ALJ findings and decisions in the section 10(j) context would correspond with Congress’s express judgment in the Administrative Procedure Act96 that, on appeal, neutral agency factfinding warrants deference.97 In other words, courts that continue to afford deference to ALJ decisions in the section 10(j) context are on sure footing.
In foreclosing deference to the NLRB in section 10(j) injunction proceedings lacking an ALJ decision, the Court’s decision is more broadly significant in three ways. First, it will encourage further delays by the Board. Not only would waiting for an ALJ decision raise the chance of proving the now-clarified “likely success on the merits” standard, but it would also protect the ALJ adjudication from district court intrusion. Such delays harm labor organizing by allowing employers more time to chill burgeoning unionization efforts.98 Second, the Court’s decision extends beyond the NLRB to other agencies empowered to seek preliminary injunctions pending administrative adjudication, including the Equal Employment Opportunity Commission, Federal Trade Commission, Securities and Exchange Commission, and Commodity Futures Trading Commission.99 Such agencies will now have a harder time securing interim relief, potentially compounding the underlying labor, economic, and financial harms they are trying to address. Third, the Court has set up two future disputes to be resolved. The first is whether ALJ decisions warrant any deference in the section 10(j) context, or if only final agency action warrants deference.100 The second is whether deference to agency factfinding more generally might be on its way out on the heels of deference to agency legal conclusions.101
Ultimately, Starbucks marks a pivotal moment in the ongoing debate over agency deference in the labor law context. By mandating the application of the traditional four-part Winter test with no deference, the Court has reinforced its stance against agency power. The Court’s decision is not merely procedural; it underscores a broader trend toward judicial scrutiny over agency decisions, potentially disrupting labor-rights enforcement and delaying crucial relief. While the decision narrows deference to the NLRB’s preliminary views, importantly, it still leaves room for continued respect for ALJ decisions. Though the Court’s remaking of administrative law is sweeping, it is not necessarily inflexible.