Current NLRB members James Murphy, Scott Mayer, and dissent-era David Prouty have their work cut out for them, and we’re not only talking about that case backlog. The current 2-1 balance is just fine for issuing run-of-the-mill decisions, but for any employer hoping that Biden-era decisions will be reversed, it’s a waiting game that’s complicated by the damage that the Abruzzo Board has done.
The third GOP vote is coming, which will open the door for certain decisions to fall when relevant cases land on the Board’s doorstep. However, cases that could limit the Board’s power to make substantive decisions are churning through appeals courts.
Let’s just say that the shadow of the Abruzzo Board’s overreach looms large, and that’s a key reason why court battles are chipping away at the NLRB’s authority. How serious is this issue?
The Legal Setbacks Keep Coming
- Constitutionality challenges: Several employers have challenged the legality of the Board’s structure over member removal protections. Those businesses included SpaceX, although Elon Musk’s aerospace company was recently declared to be outside the Board’s jurisdiction, but multiple cases involving other employer challenges are still pending. An active circuit split reveals that this issue won’t go away anytime soon.
- Cemex consequences: The most aggressive Abruzzo Board decision had a chilling effect on employer speech and led the Sixth Circuit to place strict limits on the Board’s adjudicatory authority with the Brown-Forman ruling. In response, the Board filed a petition for an en banc rehearing while arguing that the Sixth Circuit’s flawed reasoning shouldn’t require it to use notice-and-comment rulemaking to modify a standard.
It’s a tough spot. The Sixth Circuit appears to be guarding against another Cemex-style decision, but the effect amplifies existing headaches for the current Board, which is also dealing with another Abruzzo mess.
10(j) Injunctions: A Circuit Split In Motion
The 10(j) injunction is meant as an “in case of emergency, break glass”-level tool to halt egregious employer conduct that would cause irreparable harm. However, the Abruzzo Board committed abuse of this mechanism by using alleged, unproven ULPs against Starbucks to request that a federal court issue a nationwide injunction. These ULP charges were tied to Starbucks Workers United’s organizing drive, and the Board was effectively pressuring Starbucks to roll over.
In 2024, the Supreme Court reacted in Starbucks v. McKinney by raising the 10(j) injunction standard from mere “reasonable cause” to a higher threshold consistent with Winter v. Natural Resources Defense Council’s four-factor test. Now, appeals courts are coming to different conclusions on what the Supreme Court’s ruling means in practice, although the results have been partisan and inconsistent:
- The Sixth Circuit reversed a lower court decision that granted an injunction against a Michigan hospital, which had withdrawn recognition from a union. In doing so, the Sixth Circuit’s GOP majority wrote that McKinney requires the Board to show likely irreparable harm instead of simply making speculative arguments for an injunction.
- The Second Circuit went the other way by reversing the denial of an injunction petition and ordering a parking management company to immediately recognize and bargain its valet attendants’ union. The court’s Democratic majority cited McKinney but gave the Supreme Court’s opinion little consideration while weighing both irreparable harm and likelihood.
Meanwhile, an unpublished Ninth Circuit decision didn’t even cite McKinney while affirming an injunction under Winter’s four-part test.
Where The Cleanup Goes From Here
The legal battle over 10(j) injunctions cuts both ways. On one hand, it’s a good thing that McKinney and the Sixth Circuit are holding the Board to a higher burden of proof. Yet this battle also shows that the Abruzzo Board’s overreach eroded trust in this agency, and now, the current Board is paying a long-lasting price that extends to the Cemex fallout.
The Board, through its en banc petition, is expressing genuine concern that it will be disallowed from issuing substantive decisions. If the Sixth Circuit doesn’t relent, the alternative could be notice-and-comment rulemaking for every policy tweak. The current Board already moves slowly. That would make it nearly stop.
