The Supreme Court and Union Protections

Last week, and the next two weeks, will be the weeks when the U.S. Supreme Court issues its most consequential decisions of the current term.

            The U.S. Supreme Court opens its term annually on the first Monday in October and closes at the end of June annually. Every June lawyers, legislators, commentators, and the interested general public wait to hear whether decisions by the Court in the most important cases of the term will have real impact on daily lives of average Americans.

            The big decisions almost always do.  

            Last week one of the cases of interest to me was decided.. The decision was unanimous and it gave a win to employers and a defeat to union activists.

            The case involved a claim by union organizers employed at Starbucks who were fired after holding a union meeting. The organizers claimed that they were terminated from their employment because of their union activity which is illegal under the National Labor Relations Act, the federal law that protects union organizing rights for workers.

            After the termination, the workers sought reinstatement by filing an unfair labor practice complaint with the National Labor Relations Board. The Board ordered the workers back to work, but Starbucks appealed from the decision, sending the case into federal court.

            Because the NLRB ordered the workers back to work, it sought an order from the federal court requiring reinstatement while the appeal wound its way through the federal courts and the appeals process. The appeals process can take from three to five years, and the NLRB argued that by postponing reinstatement until the appeals process was exhausted, Starbucks would essentially gain the benefit of the wrongful termination without consequence.

            The obvious reasons why an employer would summarily fire union organizers is to send a message to other workers that if they take the risk of seeking to unionize a workplace, they will likely lose their livelihood. That is a risk that is often too big to take, and the result is that folks who might otherwise be interested in organizing or joining a union will take a step back. Job loss will be too big of a consequence, even if five years down the road a reinstatement order is upheld and back pay is awarded.

            Starbucks took an interlocutory appeal to the Supreme Court claiming that reinstatement via injunction before completion of the appeals process was wrongly decided by the lower courts. Justice Thomas, writing for the Court, found that the test used by the lower court in ordering an injunction was too lenient.

            The Court said that in order to grant in injunction, the plaintiff must show that there will be irreparable harm to it if the injunction ordering reinstatement is not granted, and further must show that it is likely to prevail on the overall merits of the case.

            The Court sent the case back to the lower court to determine whether the failure to reinstate would result in irreparable harm to the union or the employees, and whether the union was likely to prevail on the merits. Meanwhile Starbucks has begun negotiating with the union on an initial labor agreement.