U.S. Circuit Judge Chad Readler, though concurring with his peers on the application of the two-prong test, beckoned the court towards adopting the latter.
The Duel of Legal Approaches and The Supreme Court’s Potential Role
This conundrum envelops a variety of perspectives and interpretations from the different circuits. For instance, the Fourth, Seventh, Eighth, and Ninth circuits meticulously evaluate through a four-factor lens, probing aspects such as the board’s likelihood of prevailing, possible “irreparable harm”, the equilibrium of interests, and alignment with public interest.
Conversely, circuits like the Third, Fifth, Sixth, Tenth, and Eleventh navigate through a seemingly lenient two-prong test, while the First and Second circuits manifest a “hybrid” methodology, amalgamating elements from both frameworks.
Starbucks’ petition for certiorari vividly underscores this dissonance, stressing that only the Supreme Court has the capability to mend this rift, instituting a nationwide rule that threads through the divisive interpretations and sustains a unified legal approach towards NLRB injunction requests.
On The Horizon: A Potential Domino Effect in NLRB Litigations
The intensity and urgency of this situation are not mere droplets in the ocean, but a looming tsunami, especially considering NLRB general counsel Jennifer Abruzzo’s pledge to employ the 10(j) mechanism more robustly. Starbucks postulates that the prevailing use of 10(j) presses employers into settlements, lest they find themselves submerged under injunctions throughout NLRB litigations.
