On February 28, CDW and several other employer organizations filed a motion before the Supreme Court in Starbucks v McKinney, a case considering the criteria the NLRB must meet to seek Section 10(j) injunctive relief under the National Labor Relations Act. The motion requests the Supreme Court reverse a 6th Circuit decision and clarify the test the Board must use to be granted preliminary injunctive relief against an employer. A Supreme Court decision would provide clarity on the issue, which has resulted in conflicting standards from the Circuit Courts.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The current NLRB and its General Counsel are pursuing injunctive relief against employers based on flawed legal theories or unsubstantiated allegations. The agency has required businesses hold financially draining assets, remain in outdated or unprofitable facilities, and reinstate employees who have harassed coworkers.

“Courts have an obligation to ensure the Board is seeking injunctive relief based on sound reasoning, but unfortunately, some Circuit Courts are using lenient standards to assess the NLRB’s requests. The agency should be held to the same standards as other litigants seeking injunctions, and the Supreme Court should take this opportunity to rein in the NLRB and ensure the agency is subject to appropriate judicial oversight.”

The other employer organizations on the motion are Associated Builders and Contractors, HR Policy Association, and National Retail Federation.

In November 2023, CDW filed a petition to the Supreme Court asking them to take up this case, and our statement on that brief is available here.