Even SCOTUS liberal wing skeptical of NLRB moves  

The most notable thing about the Supreme Court’s ruling last week against the National Labor Relations Board (NLRB) in Starbucks Corp. v. McKinney is that it was nearly unanimous. Eight of the nine justices firmly swatted down the board’s attempt to expand its regulatory reach at the expense of the traditional court system. It’s a clear warning to the NLRB to not try that again in the future. 

That’s significant because the NLRB under its current majority has been seeking every means it can think of to expand its regulatory power, often through reinterpretations of existing rules and using novel legal theories to justify the change. The Supreme Court’s ruling was a warning that even the liberal justices were skeptical of this approach by the board. 

The Starbucks case involved how far the NLRB could go in slapping businesses with preliminary injunctions in unfair labor practice complaint cases. Specifically, it involved whether the NLRB, as a quasi-judicial independent federal agency, could set its own legal standard or if it had to defer to the standard used by the judiciary. 

The NLRB asserted that in such cases, courts should defer to the agency’s own lower standards for granting injunctions. The justices rejected this on the grounds that it would underminecourts’ traditional oversight role.  

Justice Clarence Thomas, writing for the majority, said that the NLRB was trying to make it impossible for its actions to be challenged. “[I]t is hard to imagine how the Board could lose under the reasonable-cause test if courts deferentially ask only whether the Board offered a minimally plausible legal theory, while ignoring conflicting law or facts.” 

The majority opinion was joined by the other conservative justices, as well as liberal justices Elena Kagan and Sonya Sotomayor. Even the Court’s progressive wing was reluctant to erode the authority of the judicial branch, which they represent, in the way the NLRB wanted. The opinion was also notable for its brevity, a mere 11 pages, signaling a lack of debate among the justices regarding the underlying issue. 

Only Justice Ketanji Brown Jackson offered any sympathy to the NLRB’s argument, and even then she concurred with the majority on the main legal issue in the matter. She wrote a partial dissent to signal her discomfort with limiting the NLRB’s reach, saying she was “loath to bless this aggrandizement of judicial power.”  

If only the NLRB was as concerned about the dangers of aggregating power in one place. The board and its General Counsel Jennifer Abruzzo have instead opted to try to expand the agency’s reach in any way they can.  

Under its current leadership, the NLRB has sought to create a new legal standard that denies management any First Amendment rights when it comes to talking about unions, a move that contradicts the language of the National Labor Relations Act itself. The NLRB has also created a new version of the so-called card check rule for workplace organizing elections, preventing management from contesting union claims to have majority support of workers if the union has filed an unfair practices complaint. 

The NLRB has also attempted to expand the Joint Employer rule, the legal standard for when one business can be held legally responsible for workplace violations at a second business. The board wanted to expand the existing standard, which required one business to have direct control over another business, to one that expanded liability to cases of “indirect control” – a term of art with no clear meaning. The courts blocked the NLRB’s effort, and the board is still considering an appeal. 

Last week’s ruling is a message that the current Supreme Court will look upon this type of stuff very skeptically and therefore the NLRB should be more cautious when it comes to pushing the legal envelope.