Seventh Circuit Skeptical of NLRB 10(j) Injunctions After Starbucks v. McKinney

The NLRB faced sharp questioning from two Republican-appointed Seventh Circuit judges over its bid for a temporary bargaining order against a truck dealership and related staffing companies. The argument is significant: it’s the next test of how aggressively the Supreme Court’s 2024 Starbucks v. McKinney decision narrows the Board’s most effective enforcement tool.

Section 10(j) of the NLRA lets the NLRB go directly to federal court for a temporary injunction to prevent harm that can’t be fixed once the Board rules — the full administrative process can take years. Before Starbucks v. McKinney, some circuits departed from the historical 4-part test and used a relaxed two-factor test for 10(j); the Supreme Court rejected that departure and required the four-factor traditional preliminary injunction test.

The Seventh Circuit case involves M&K Truck Centers and two labor-leasing entities allegedly created to avoid union bargaining obligations. The NLRB brought charges as joint employers and alter egos. Judge Kendall (N.D. Ill.) denied the petition.

Judge Easterbrook (Reagan) pressed NLRB attorney Laura Bandini on whether loss of union representation qualifies as irreparable harm. “That sounds like an argument that employees are irreparably harmed in every case where the regional director brings a 10(j) proceeding. I don’t think that’s consistent with what the Supreme Court said in Starbucks.”

Judge Taibleson (Trump): “The Supreme Court has emphasized this is an extraordinary measure. The harm you’ve identified is simply the mine-run harm in any NLRB labor dispute case.”

What’s at stake: A ruling against the NLRB would deepen a partisan circuit split on the impact of Starbucks v. McKinney and meaningfully weaken the Board’s enforcement capacity during the bargaining period.

For employers facing potential 10(j) petitions, the calculus is shifting. The Board has to clear a much higher bar than it did pre-Starbucks. Strategic pushback at the district court level is more likely to succeed.

The broader interaction with constitutional challenges: if 10(j) injunctions become harder to obtain and ULP cases can be halted via constitutional challenges in friendly forums (think SpaceX, Fifth Circuit), the Board’s enforcement teeth get materially shorter.

For employers, three pragmatic points:

1. If you’re facing a likely 10(j) petition, circuit law matters more than ever. Coordinate closely with counsel on local precedent.

2. The “irreparable harm” inquiry is the new battleground. Documenting that the workforce won’t suffer unfixable harm helps your defense.

3. Long term, only Congress can fix this. If 10(j) keeps narrowing judicially, the agency’s enforcement teeth keep shortening.

Has Starbucks v. McKinney gone too far, or is the new standard the right balance?