M. Kathleen McKinney v. Starbucks Corp.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0168p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
M. KATHLEEN MCKINNEY, Regional Director of
│
Region 15 of the National Labor Relations Board, for
│
and on behalf of the National Labor Relations Board, > No. 22-5730
Petitioner-Appellee, │
│
│
v. │
│
STARBUCKS CORPORATION, │
Respondent-Appellant. │
┘

Appeal from the United States District Court for the Western District of Tennessee at Memphis.
No. 2:22-cv-02292—Sheryl H. Lipman, District Judge.

Argued: May 4, 2023

Decided and Filed: August 8, 2023

Before: SUTTON, Chief Judge; BOGGS and READLER, Circuit Judges.
_________________

COUNSEL

ARGUED: Arthur T. Carter, LITTLER MENDELSON, P.C., Dallas, Texas, for Appellant.
Laurie Monahan Duggan, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Appellee. ON BRIEF: Arthur T. Carter, LITTLER MENDELSON, P.C., Dallas, Texas, A.
John Harper III, LITTLER MENDELSON, P.C., Houston, Texas, for Appellant. Laurie
Monahan Duggan, Richard J. Lussier, Laura T. Vazquez, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Appellee. Michael Schoenfeld, STANFORD FAGAN LLC,
Atlanta, Georgia, Mary Joyce Carlson, WORKERS UNITED, Washington, D.C., Ryan E.
Griffin, Daniel M. Rosenthal, Michael P. Ellement, JAMES & HOFFMAN PC, Washington,
D.C., for Amicus Curiae.

BOGGS, J., delivered the opinion of the court in which SUTTON, C.J. and READLER,
J., joined. READLER, J. (pp. 14–28), delivered a separate concurring opinion.
 No. 22-5730 McKinney v. Starbucks Corp. Page 2

_________________

OPINION
_________________

BOGGS, Circuit Judge. Following news coverage of a unionization effort at one of its
stores in Memphis (“Memphis Store”), Starbucks fired seven partners1 who worked there
(“Memphis Seven”). Workers United (“Union”) filed an action with the National Labor
Relations Board (“Board”), charging that Starbucks’s firing of the Memphis Seven, and other
anti-union actions, violated section 8 of the National Labor Relations Act (“Act”). Meanwhile,
M. Kathleen McKinney, a regional director of the Board, petitioned the district court for
temporary injunctive relief pending completion of the Board’s proceedings. The district court
found reasonable cause to believe that Starbucks had violated the Act. It also concluded that,
because of the chilling impact of the terminations on Union support, some of the requested
interim relief, including temporary reinstatement of the Memphis Seven, was just and proper.
For the following reasons, we affirm.

I. BACKGROUND

Facts

1. Early Organizing Efforts

In early January 2022, Nikki Taylor, a shift supervisor at the Memphis Store, reached out
to partners at a Starbucks in Buffalo, New York, to discuss their union-organizing efforts. The
Buffalo partners directed her to the Union. After speaking with Union representatives, Taylor
shared her interest in unionizing the Memphis Store with coworkers, including Makayla Abrams,
Reaghan Hall, Nabretta Hardin, Beto Sanchez, and Kylie Throckmorton. These conversations
took place at work, where managers could overhear them. Managers interjected, at least twice,
to ask what the conversations were about.

1
Starbucks refers to its employees as “partners.” STARBUCKS, Careers: Culture and Values,
https://www.starbucks.com/careers/working-at-starbucks/culture-and-values/.
 No. 22-5730 McKinney v. Starbucks Corp. Page 3

On January 14, District Manager Cedric Morton issued Taylor two corrective-action
forms without warning. The first corrective-action form stated that Taylor had engaged in
aggressive, insubordinate behavior towards a store manager on December 29, 2021, and January
12, 2022. Taylor denied doing so. The second corrective-action form recorded a clothing
violation––wearing leggings to work––which Taylor also denied. A store manager, Elizabeth
Page, had told Taylor that “in practice, [managers] would have a conversation with a partner”
before disciplining them. Taylor also testified that other Starbucks employees were not issued
corrective-action forms for failing to comply with Starbucks’s dress code.

Taylor continued her organizing efforts and, on January 17, facilitated a Zoom meeting
between coworkers interested in forming a union-organizing committee––Hall, Hardin, Lakota
McGlawn, Sanchez, Taylor, and Throckmorton––and Union representatives. During the
meeting, the partners drafted a letter to Starbucks’s then-CEO Kevin Johnson, announcing their
intent to unionize.

2. The Media Event

On January 18, the letter to CEO Johnson was posted on social media. Hardin distributed
union-authorization cards to coworkers. Although the store’s schedule showed a full staff,
Morton and Page decided to close the store early. Around 6 p.m., a news crew arrived at the
Memphis Store, and Taylor opened the door for the crew to enter. Taylor, who was off duty at
the time, did not have permission to invite the crew inside, but no partner expressed concern
about the media’s presence. The crew interviewed Florentino Escobar, Hardin, McGlawn,
Sanchez, Taylor, and Throckmorton about their reasons for organizing and what they hoped to
achieve and left the store around 6:20 p.m.

Before leaving, Hardin, Sanchez, Taylor, and Throckmorton went behind the counter.
Sanchez opened the store’s safe for McGlawn, the designated cash controller, because McGlawn
lacked a personal access code. The partners testified that there was nothing unusual about their
actions that night. They regularly came to the store––even while off duty––to check the work
schedule or retrieve their personal belongings, went behind the counter after work to make a free
 No. 22-5730 McKinney v. Starbucks Corp. Page 4

drink (a perk of the job), and helped partners who were responsible for accessing the safe, but
who had not received a personal code to do so.

3. Starbucks’s Initial Response

Store management learned of the media event the next day, and Starbucks launched an
investigation. Meanwhile, the Union and the Memphis Store organizing committee scheduled a
sit-in campaign for January 21 to 23. Following this announcement, Morton, who had only
periodically visited the Memphis Store, began to visit almost daily. Morton announced that the
lobby would be closed and that the store would operate as a drive-thru-only location from
January 20 to 23, because of short-staffing. The lobby remained closed on those days, despite
the store being fully staffed. On January 22, Hall and Sanchez attempted to reopen the lobby.
Morton arrived and was confused as to why the lobby had been reopened, as he “was under the
assumption that it was supposed to stay closed no matter what.” Only on January 24, when the
store was actually short-staffed, did it return to normal operations.

According to Hall, managers also began to remove pro-union material pinned to the
store’s community bulletin board. Hall reported that managers eventually removed all material
from the bulletin board and repositioned a condiment bar to make the board less noticeable.
Sanchez testified that Morton told him that such material violated company policy.

4. Termination of the Memphis Seven

On February 8, Starbucks fired five of the six organizing-committee members––Hardin,
McGlawn, Sanchez, Taylor, and Throckmorton––and two other partners who had engaged in
pro-union activity––Escobar and Emma Worrell. Starbucks claimed that it fired these employees
for violating company policy during the January 18 media event, including by: (1) being in the
store while off duty; (2) entering the back-of-house or counter area while off duty; (3) unlocking
a locked door to allow an unauthorized person to enter while off duty; (4) activating the safe and
handling cash while off duty; and (5) supervising while these offenses were being committed.
Two partners who were present during the January 18 media event, Aiden Harris and Kimora
Harris, were not fired: Kimora had not committed any apparent violations and Aiden’s violation–
–failing to ring up a beverage––was not deemed a terminable offense.
 No. 22-5730 McKinney v. Starbucks Corp. Page 5

Acknowledging that their actions violated company policy, Taylor and Hall testified that
management rarely, if ever, enforced these violations. Sanchez also testified that, in the past,
Page had directed him to share his personal safe-access code with other partners, so that they
could open the safe and handle cash.

5. Effect of the Terminations

After the firings, only one organizing-committee member still worked at the Memphis
Store. The store operated only as a drive-thru over the next couple of weeks. Even with the
lobby closed, Morton, Page, and managers from other Starbucks locations came to the store
every day. The visiting managers did not explain why they were suddenly stationed there. And
they remained there after the store reopened the lobby.

On the morning shift, every partner other than Hall stopped wearing union pins to work.
Ax Heiberg, a barista, testified that the firings caused him to stop wearing union pins because he
felt that demonstrating open union support would make him a target. He eventually stopped
discussing union matters with other partners unless he knew that they were pro-union and knew
that no managers were around. Hall also testified that she did not feel comfortable discussing the
organizing campaign with partners transferred from Page’s previous store.

A senior Union organizer and a Union representative (who worked at a different
Starbucks) both testified that the Memphis firings spread anxiety and fear among partners who
were considering unionizing at other Starbucks locations. For example, partners at a store in
Jackson, Tennessee, told one organizer that they were hesitant to unionize after what happened to
the Memphis Seven, noting that Starbucks had posted a notice in the store detailing the
discharges. A partner at a Starbucks in Florida said that his manager suggested that unionization
would lead to a response from Starbucks similar to the one in Memphis.

On June 7, in an anonymous election, Memphis Store partners voted eleven-to-three in
favor of joining the Union. The discharged partners remained involved in the bargaining process
after the vote.
 No. 22-5730 McKinney v. Starbucks Corp. Page 6

Procedural History

Between February and April 2022, the Union filed charges with the Board, alleging that
Starbucks had engaged in unfair labor practices, in violation of section 8(a)(1) and (3) of the Act.
Following an investigation, the General Counsel of the Board issued a consolidated complaint
and notice of hearing against Starbucks for alleged violations of the Act. On May 10, 2022,
McKinney, a regional director of the Board, petitioned the district court, pursuant to section 10(j)
of the Act, for injunctive relief pending resolution of the Board’s administrative proceedings.
McKinney sought a cease-and-desist order and various forms of affirmative relief, including the
interim reinstatement of the Memphis Seven.

The district court granted in part McKinney’s petition for a temporary injunction and
ordered Starbucks to reinstate the discharged partners. The court held that the Board had
established “reasonable cause” to believe that Starbucks had committed each of the five unfair
labor practices alleged by the Board. The court also found that injunctive relief, including
reinstatement of the Memphis Seven, was “just and proper.” In addition to reinstatement, it
ordered Starbucks to: (1) rescind and expunge any unlawful discipline issued to Taylor; (2) post,
and ensure access to, copies of the district court’s order in the Memphis Store; and (3) confirm
compliance with the court’s order. Such relief, the court found, was necessary to restore the
status quo that existed before the alleged violations, so as to preserve the remedial power of the
Board pending resolution of its administrative proceedings.

Starbucks filed an emergency motion to stay the district court’s order pending appeal.
The district court denied Starbucks’s emergency motion. The company then sought a stay of the
order from a panel of this court, which the panel denied. McKinney v. Starbucks Corp., No. 22-
5730 (6th Cir. Sept. 6, 2022) (per curiam).

Starbucks timely appealed the district court’s order granting injunctive relief, which we
now review on the merits.2

2
On the same day that the parties presented oral argument, an administrative law judge (ALJ) issued a
decision in the underlying administrative case. Starbucks Corp., Nos. 15-CA-290336 et al., (N.L.R.B May 4, 2023).
Parties may file exceptions to the ALJ’s decision with the Board within 28 days. Here, the Board granted the parties
an extended deadline, June 30, 2023, to file exceptions. Starbucks Corp., Nos. 15-CA-290336 et al., (N.L.R.B. May
 No. 22-5730 McKinney v. Starbucks Corp. Page 7

II. ANALYSIS

A. Legal Framework

The Act provides that “[e]mployees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining.”
29 U.S.C. § 157. The Act further states that:

It shall be an unfair labor practice for an employer–
(1) To interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title;
…
(3) by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization.

Id. § 158(a). To preserve the Board’s ultimate remedial powers while administrative proceedings
are pending, the Act enables the Board to “petition any United States district court, within any
district wherein the unfair labor practice in question is alleged to have occurred . . . for
appropriate temporary relief.” Id. § 160(j).

This court applies a two-factor test to determine whether such relief is warranted. See
Ahearn ex rel. NLRB v. Jackson Hosp. Corp., 351 F.3d 226, 236 (6th Cir. 2003) (noting that some
circuits use the four-factor framework that is generally used for preliminary injunctions). To
obtain temporary relief, the Board must establish that (1) there is “reasonable cause to believe
that unfair labor practices have occurred” and (2) injunctive relief is “just and proper.” Ozburn-
Hessey, 875 F.3d at 339 (first quoting Ahearn, 351 F.3d at 234; and then quoting Schaub v. W.
Mich. Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001)). Relief “is just and proper
where it is ‘necessary to return the parties to status quo pending the Board’s proceedings in order
to protect the Board’s remedial powers under the NLRA.’” Ibid. (quoting Gottfried v. Frankel,
818 F.2d 485, 495 (6th Cir. 1987)). The district court must then determine “whether achieving

19, 2023). The ALJ’s decision does not mark the end of the Board’s proceedings, and we are not compelled to defer
to it. McKinney v. Ozburn-Hessey Logistics (Ozburn-Hessey), LLC, 875 F.3d 333, 339–40 (6th Cir. 2017).
 No. 22-5730 McKinney v. Starbucks Corp. Page 8

[the] status quo is possible.” Ibid. (quoting Gottfried, 818 F.2d at 495). “[T]he status quo is the
state of affairs existing before the alleged unfair labor practices took place.” Schaub, 250 F.3d at
972 (quoting Frye ex rel. NLRB v. Specialty Envelope Inc., 10 F.3d 1221, 1226 (6th Cir. 1993)).

In reviewing the supporting facts, a district court may not resolve conflicting evidence or
make credibility determinations. Muffley ex rel. NLRB v. Voith Indus. Servs., Inc. 551 F. App’x
825, 830 (6th Cir. 2014); see Ahearn, 351 F.3d at 237 (“[F]act-finding is inappropriate in the
context of a district court’s consideration of a 10(j) petition.”). We review a district court’s just-
and-proper finding for abuse of discretion and reverse only where the court “relies upon clearly
erroneous findings of fact or when it improperly applies the law or uses an erroneous legal
standard.” Kobell ex rel. NLRB v. United Paperworkers Int’l Union, 965 F.2d 1401, 1410 (6th
Cir. 1992) (quoting Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 30 (6th Cir. 1988)).

B. Just-and-Proper Analysis

Notably, Starbucks does not challenge the district court’s holding that there is reasonable
cause to believe that Starbucks violated the Act in terminating the Memphis Seven. We thus
consider only whether interim relief was just and proper and conclude that the district court did
not abuse its discretion in ordering interim restatement, among other related relief, to preserve
the status quo pending completion of the Board’s proceedings.

Consider the context. In early January 2022, Taylor contacted Union representatives and
discussed the prospect of unionizing the Memphis Store with fellow partners. Morton then
issued Taylor two debatable corrective-action forms without warning––an irregular procedure.
On January 17, a seven-partner organizing committee posted a letter indicating its intent to
unionize the Memphis Store. After the media covered the story, Starbucks alleged that seven
partners had violated company policy and fired them. But, as the record indicates, violations
such as these were rarely, if ever, punished. On occasion, management appears to have even
encouraged them. The next week, when committee members scheduled a sit-in campaign to
garner union support, management closed the Memphis Store lobby under the pretense of being
short-staffed.
 No. 22-5730 McKinney v. Starbucks Corp. Page 9

Under these circumstances, Starbucks’s termination of the Memphis Seven––including
six of the seven members of the organizing committee3––mere weeks after the media event
would almost certainly chill other partners’ exercise of rights protected by the Act. See Ahearn,
351 F.3d at 239 (upholding reinstatement as just and proper because of the “inherently chilling
effect” of the firing of employees directly after they had engaged in a union strike); see also
Frankl v. HTH Corp., 650 F.3d 1334, 1363 (9th Cir. 2011) (“[T]he discharge of active and open
union supporters risks a serious adverse impact on employee interest in unionization and can
create irreparable harm to the collective bargaining process.” (quoting Pye v. Excel Case Ready,
238 F.3d 69, 74 (1st Cir. 2001))). The district court did not err in concluding that the termination
of 80% of the organization committee during a unionization campaign could lead to injury to the
union movement that subsequent Board intervention would not be able to remedy.

And, as the district court noted, the record contains actual evidence of chill. After the
firings, Heiberg stopped wearing a union pin for fear of being targeted. He was not alone: other
than Hall, every partner on his shift stopped wearing a pin. Heiberg also feared that he would be
targeted by management if he were to express open support for the protests or other union
activities. He refrained from discussing pro-union sentiments with anyone unless he “knew for a
fact that they were pro-union and that no managers could overhear [him.]” Hall similarly felt
uncomfortable discussing organizing efforts with employees transferred from Page’s previous
location. Other evidence in the record indicated that the terminations chilled unionization efforts
in Tennessee and Florida. Starbucks argues that the district court abused its discretion in
ordering reinstatement because the Union’s election victory indicates that any chilling effect had
abated. As the district court explained, a successful union election does not preclude the
continuance of a chilling impact on employees’ willingness to exercise other rights safeguarded
by the Act. Union elections are conducted anonymously, allowing employees to participate
without fear of retaliation. Conversely, collective bargaining requires a demonstration of open
support, which employees such as Heiberg might well not engage in for fear of reprisal.

3
Hall, the only member of the original organizing committee who was not terminated, was not at the store
on January 18.
 No. 22-5730 McKinney v. Starbucks Corp. Page 10

Starbucks fails to cite any authority suggesting that a successful union election precludes
injunctive relief. And it might seem odd that only successful attempts at intimidation warrant
relief, even though the unjustly fired employees are still out of luck if their fellows win a
secret-ballot election. Our precedent indicates that a district court may consider prospective
harm to other rights protected under the Act, including collective bargaining, in ordering
temporary injunctive relief. In Ahearn, a hospital fired six employees soon after they had
participated in a strike organized by their union. 351 F.3d at 230–33. Several non-discharged
employees testified that the firings had “a chilling effect on union activity, inasmuch as the
employees stopped wearing union buttons, spoke in hushed tones about union activities, and
feared reprisal.” Id. at 239. The district court ordered reinstatement, finding that such injunctive
relief was necessary because the employer’s anti-union animus, followed by actual firings, “was
inherently chilling” and testimony from non-discharged employees suggested that the firings
produced an actual chilling effect on union support. Id. at 233–34, 240. In affirming, this court
noted that the “the Union was quite new and had not even signed its first contract, ‘making
bargaining units highly susceptible to management misconduct.’” Ibid. (quoting Arlook ex rel.
NLRB v. S. Lichtenberg & Co., 952 F.2d 367, 373–74 (11th Cir. 1992)).

Here, as in Ahearn, the new Union faces a critical juncture. Fear of retaliation will exist
unless the Memphis Seven, apparently terminated for their union support, are reinstated.
Likewise, the organizing committee faced a severe encumbrance on its ability to unionize
effectively when all but one of its number were terminated. And while the Memphis Store voted
to unionize after the firings, a failure to reinstate the Memphis Seven (who now lead the
bargaining committee) would similarly undermine the Union’s bargaining strength as it seeks its
first collective-bargaining agreement. See ibid.; see also Ozburn-Hessey, 875 F.3d at 341
(affirming the district court’s ordered temporary relief as “necessary” because a failure to do so
“might undermine the Union’s strength on the eve of its first collective bargaining opportunity”);
Pascarell v. Vibra Screw, 904 F.2d 874, 880 (3d Cir. 1990) (finding that termination of the entire
bargaining committee rendered the chilling effect on other employees “patent”).

As the district court pointed out, reinstatement is further supported by the fact that
without employment at the Memphis Store, the discharged members of the bargaining committee
 No. 22-5730 McKinney v. Starbucks Corp. Page 11

are limited in their capacity to communicate with and advocate for their fellow Union members.
Although Memphis Store partners have since voted to unionize, sufficient evidence of inherent
and actual chill supports the district court’s holding that the ordered temporary relief is necessary
to preserve the status quo pending resolution of the Board’s proceedings.

C. Starbucks’s Remaining Arguments

Starbucks presents other challenges to the ordered relief, none of which is availing.

Whether a Return to the Status Quo Is Possible. Starbucks argues that the district court
abused its discretion in ordering reinstatement because the election irrevocably altered the legal
bargaining status of the parties, making a return to the status quo “impossible.” In doing so,
Starbucks offers an overly narrow view of what makes a return to the status quo possible.
Starbucks’s reading of the Act would allow employers who violate labor laws to have their cake
and eat it too: they could either engage in misconduct and successfully discourage unionization
or engage in misconduct and fail to prevent unionization, secure in the knowledge that an
election victory would absolve them of their sins. It would also place undue weight on the
outcome of an anonymous election in determining whether workers can freely exercise their
rights under the Act.

Once this court has decided that a return to the status quo is necessary, the appropriate
question becomes whether a return to the status quo is, in fact, possible. See Gottfried, 818 F.2d
at 495–96. This is not a metaphysical inquiry. Rather, we have asked: are the employees “still
able . . . to return to their old jobs[?]” Ozburn-Hessey, 875 F.3d at 341. If the Memphis Store
closed, for example, a return to the status quo would be impossible. As it has not, the
reinstatement of the Memphis Seven remains possible and, as discussed above, is necessary to
restore the status quo that existed prior to Starbucks’s alleged misconduct––that is, a work
environment where employees can express union support without fear of retaliation.

Unclean Hands. Starbucks also argues that the district court failed to consider that the
Union was primarily responsible for any chill. Particularly, Starbucks claims that the Union
“publicized the separations and created a narrative that they were retaliatory.” The company
points to an Eleventh Circuit case, Arlook, 952 F.2d 367, to support the notion that a court may
 No. 22-5730 McKinney v. Starbucks Corp. Page 12

deny section 10(j) injunctive relief “on the basis of inappropriate union conduct (such as
spreading rumors or sensationalizing wholly unsubstantiated charges against a company).”

Arlook does not help Starbucks. There, the Eleventh Circuit reversed a district court’s
denial of temporary injunctive relief. Arlook, 952 F.2d at 375. It held that the lower court had
clearly erred in finding “that the Union was as responsible for the ‘chilling’ of organizational
activities as the Company.” Id. at 374. “To justify the denial of . . . equitable relief on the basis
of inappropriate union conduct (such as spreading rumors or sensationalizing wholly
unsubstantiated charges against a company),” the court said, “the conduct must be documented in
the record.” Ibid. And the record lacked any such evidence. Ibid.

Here, too, there is no evidence in the record to suggest that the Union “spread[] rumors or
sensationalized wholly unsubstantiated charges against” Starbucks. Arlook, 952 F.2d at 374.
Starbucks does not identify any rumors or unsubstantiated charges made by the Union. Nor, as
noted above, does it contest the district court’s reasonable-cause findings. Rather, Starbucks
merely points out that the Union publicized the actual facts of the termination of the Memphis
Seven and, on that basis, faults the Union as primarily responsible for a chill that, Starbucks
claims, no longer exists. But Starbucks fails to identify any authority suggesting that a union that
informs its members of anti-union activities should be precluded from obtaining temporary
injunctive relief. And Starbucks’s crude attempt at scorekeeping fails to explain how its own
publication of the terminations immediately after the event (and again two weeks later) to
partners at the Memphis Store and nationwide should not be counted against it. Starbucks’s
unclean-hands challenge fails.

Proper Standard for Section 10(j) Relief. Finally, relying on Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7 (2008), Starbucks argues that the district court should have
applied the traditional four-factor test for preliminary injunctions rather than the two-factor
reasonable-cause/just-and-proper test it applied in ordering injunctive relief here. Winter,
however, did not involve a section 10(j) injunction; it merely restated the traditional four-factor
test’s applicability to preliminary injunctions in general. Id. at 20. We, however, have
consistently applied the two-factor test for section 10(j) injunctions. See Ahearn, 351 F.3d at
234–35 (noting that a number of “other circuits have retained the [two-factor] standard”).
 No. 22-5730 McKinney v. Starbucks Corp. Page 13

And we have continued to do so post-Winter. See Ozburn-Hessey, 875 F.3d at 343. Absent an
intervening en banc or Supreme Court decision, we may not overrule the decision of a prior
panel. See Ahearn, 351 F.3d at 234–36 (citing United States v. Moody, 206 F.3d 609, 615 (6th
Cir. 2000)).

Remaining Injunctive Relief. Starbucks stakes its challenge to the remainder of the order
on the success of its challenge to the reinstatement. Because the district court did not abuse its
discretion in ordering reinstatement, and Starbucks presents no independent argument contesting
the remainder of the order, we affirm the order in its entirety.

III. CONCLUSION

The record contains sufficient evidence to support the district court’s order of temporary
injunctive relief as necessary to return the parties to the status quo pending resolution of the
Board’s proceedings. We AFFIRM the judgment of the district court.
 No. 22-5730 McKinney v. Starbucks Corp. Page 14

_________________

CONCURRENCE
_________________

CHAD A. READLER, Circuit Judge, concurring. When a party seeks a preliminary
injunction, we apply a familiar test. Four factors in all, the key ingredients include the moving
party’s likelihood of success and the threat of irreparable injury. Winter v. Nat. Res. Def.
Council, 555 U.S. 7, 20 (2008). Together, these considerations—both legal and equitable—
channel our discretion to issue injunctive relief. See Salazar v. Buono, 559 U.S. 700, 714 (2010)
(“An injunction is an exercise of a court’s equitable authority, to be ordered only after taking into
account all of the circumstances that bear on the need for prospective relief.”).

Why, then, do we deviate from this trusted practice when the National Labor Relations
Board invokes § 10(j) of the Taft-Hartley Act to preliminarily enjoin a company’s alleged unfair
labor practices during the pendency of Board proceedings? As far as I can tell, there is no
particularly good answer. In § 10(j) proceedings, we apply a test borrowed long ago from other
circuits. When we adopted that approach, we failed to explain why we cast aside the traditional,
demanding, four-factor test in favor of a meek two-part version. And we conspicuously failed to
deploy the textualist principles that govern today’s means of statutory review. That decision, in
short, was suspect from the start.

Nor has it aged gracefully. The standard we apply for § 10(j) proceedings is in tension
with intervening Supreme Court precedent. See Weinberger v. Romero-Barcelo, 456 U.S. 305,
313 (1982). And it is directly contrary to the developing trend in our sister circuits. See Muffley
ex rel. NLRB v. Spartan Mining Co., 570 F.3d 534, 542–43 (4th Cir. 2009); Sharp v. Parents in
Cmty. Action, 172 F.3d 1034, 1038–39 (8th Cir. 1999); Miller ex rel. NLRB v. Cal. Pac. Med.
Ctr., 19 F.3d 449, 456–60 (9th Cir. 1994) (en banc), abrogated on other grounds by Winter, 555
U.S. at 7; Kinney v. Pioneer Press, 881 F.2d 485, 490–91 (7th Cir. 1989). Not only that, but our
test also produces uneven results, tilting the field in the Board’s favor. Until this misguided
approach is corrected, however, we are left to follow our prior decisions. As the majority
opinion faithfully does so, I reluctantly concur in that decision.
 No. 22-5730 McKinney v. Starbucks Corp. Page 15

A. Is there a more identifiable four-part test than the one federal courts apply when
assessing whether preliminary injunctive relief is warranted? Litigators can no doubt recite the
formula from memory: (1) the movant’s likelihood of success on the merits; (2) the extent of
irreparable harm to the movant; (3) the balance of the equities; and (4) the public interest.
Winter, 555 U.S. at 20; see also Kentucky v. Biden, 57 F.4th 545, 550 (6th Cir. 2023); Sisters for
Life, Inc. v. Louisville-Jefferson County, 56 F.4th 400, 403 (6th Cir. 2022); Doster v. Kendall, 54
F.4th 398, 410 (6th Cir. 2022). Adherence to this legal quartet harmonizes our approach to
preliminary relief, ensuring we exercise our authority “consistent with traditional principles of
equity.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 394 (2006). Over and over, the
Supreme Court has emphasized that each of the four benchmarks deserves consideration before
relief may be granted. Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018) (per curiam) (affirming
the denial of a preliminary injunction on the last two factors); Glossip v. Gross, 576 U.S. 863,
876 (2015) (“[T]his case turns on whether petitioners are able to establish a likelihood of success
on the merits.”); Sampson v. Murray, 415 U.S. 61, 88 (1974) (emphasizing the importance of
irreparable injury). It likewise has reminded us that a preliminary injunction is “extraordinary”
and “never awarded as of right.” Winter, 555 U.S. at 24. Consistent with these admonitions,
federal courts apply the four Winter factors in the early stages of a wide range of constitutional
and statutory disputes. See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1275 (2022) (Religious
Land Use and Institutionalized Persons Act); Trump v. Hawaii, 138 S. Ct. 2392, 2403, 2423
(2018) (Establishment Clause); Winter, 555 U.S. at 19 n.4, 20 (National Environmental Policy
Act); eBay, 547 U.S. at 391 (Patent Act); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,
534, 544 (1987) (Alaska National Interest Lands Conservation Act); Romero-Barcelo, 456 U.S.
at 306, 320 (Federal Water Pollution Control Act); Liberty Coins, LLC v. Goodman, 748 F.3d
682, 685, 689–90 (6th Cir. 2014) (First Amendment).

1. Yet in assessing whether it is necessary to allow the Board to direct a business’s
operations through a § 10(j) injunction, our Court long ago jettisoned the Winter standard in
favor of a less rigorous one. That decision has serious ramifications for private employers and
unions alike, and thus deserves a second look.
 No. 22-5730 McKinney v. Starbucks Corp. Page 16

Begin with some observations on the current state of play. The Board’s § 10(j) activity is
on the rise. In the first 15 years of § 10(j)’s life, it was deployed on average “only three times
per year.” Bruce W. Burns, Section 10(j) of the National Labor Relations Act: A Legislative,
Administrative and Judicial Look at a Potentially Effective (But Seldom Used) Remedy, 18 Santa
Clara L. Rev. 1021, 1022 (1978) (footnote omitted). Times, it seems, have changed. The Board
now puts § 10(j) to work more than six times as often as it did before. Nat’l Labor Rels. Bd.,
Performance and Accountability Report FY 2022, at 86 (publication date unknown); see also
Memorandum from Jennifer A. Abruzzo, NLRB General Counsel to Regional Directors,
Officers-in-Charge, and Resident Officers 1–3 (Feb. 1, 2022).

Now consider a reality of NLRB unfair labor practice investigations: they do not happen
overnight. Complaints often take a year for the Board to resolve, and months more to bring the
matter to completion. Performance and Accountability Report FY 2022, at 149 (showing FY
2021 averages of 286 days between issuance of a complaint and an administrative law judge’s
decision, 305 days between the issuance of that decision and the Board’s order, and 869 days
between the issuance of a Board order and the case’s closing); see also Lineback ex rel. NLRB v.
Irving Ready-Mix, Inc., 653 F.3d 566, 570 (7th Cir. 2011) (noting the “‘glacial’ pace of Board
proceedings”) (quotation omitted)); Cal. Pac. Med. Ctr., 19 F.3d at 453 (“The Board took nearly
28 months to resolve [the] unfair labor practice charge[.]”). This case is no exception. The
Board issued its operative complaint on July 8, 2022. An administrative law judge rendered a
decision 10 months later. The parties were then afforded nearly two months to file exceptions to
the order. 29 C.F.R. § 102.46(a). Eventually, the Board itself will review Starbucks’s case, id.
§ 102.48(b), at which point federal court litigation will likely ensue. See generally UAW of Am.,
Loc. 600 v. NLRB, 956 F.3d 345 (6th Cir. 2020) (appeal of Board petition to enforce order).

2. As this lengthy process unfolds, should the Board be able to constrain the employer’s
operations? Congress has answered that question, at least in part. Section 10(j) of the Taft-
Hartley Act of 1947 authorizes the Board to seek preliminary injunctive relief. 29 U.S.C.
§ 160(j) (“The Board shall have power . . . to petition . . . for appropriate temporary relief or
restraining order. . . .”); McKinney v. Ozburn-Hessey Logistics, LLC, 875 F.3d 333, 339 (6th Cir.
 No. 22-5730 McKinney v. Starbucks Corp. Page 17

2017). That command begs the question: what framework should courts use to assess the
Board’s request?

Turn to the statutory text. Congress gave district courts considering § 10(j) petitions a
short instruction: enter “such temporary relief . . . as it deems just and proper.” 29 U.S.C.
§ 160(j). Ordinarily, one would read the broad command “just and proper” as invoking the
discretion we traditionally exercise when faced with requests for equitable relief. See Spartan
Mining Co., 570 F.3d at 542 (“‘[J]ust and proper’ is another way of saying ‘appropriate’ or
‘equitable.’” (citation omitted)); Pioneer Press, 881 F.2d at 491 (“Section 10(j) tells the district
court to do what’s ‘just and proper[,]’ which we read as a statement that traditional rules
govern—the approach emphasizing the public interest applied when the government is the
plaintiff.”). Dictionary definitions confirm that instinct. The term “just” (both then and now) is
a synonym for “equitable.” Just (adj.), Webster’s New International Dictionary (2d ed. 1949);
Just (adj.), Oxford English Dictionary (Rev. 2013) (entry I.5.b.); accord Cal. Pac. Med. Ctr., 19
F.3d at 458. To the same end, “proper” means “appropriate,” “suitable,” or “correct.” Proper
(adj.), Funk & Wagnalls New Standard Dictionary (1943 ed.); Proper (adj.), Oxford English
Dictionary (Rev. 2007) (entry I.1.).

In practice, crafting “appropriate” or “suitable” equitable relief necessitates an exercise of
discretion. Samuel L. Bray & Paul B. Miller, Getting Into Equity, 97 Notre Dame L. Rev. 1763,
1794 (2022) (“Judges in equity have discretion in determining whether, as a matter of
substantive doctrine, petitioners have ‘an equity’ that warrants intervention . . . as well as in
selecting and tailoring remedies[.]”). Discretion, in turn, is a hallmark of equity. Romero-
Barcelo, 456 U.S. at 312 (“The essence of equity jurisdiction has been the power of the
Chancellor to do equity and to mould each decree to the necessities of the particular case.”
(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944))). Employing that discretion, courts
“traditionally [have] had the power to fashion any remedy deemed necessary and appropriate to
do justice in a particular case.” Carter-Jones Lumber Co. v. Dixie Distrib. Co., 166 F.3d 840,
846 (6th Cir. 1999). Putting “just” and “proper” together, then, leads us to the same conclusion
the esteemed Judge Friendly reached years ago: the NLRA incorporated traditional equitable
principles. Danielson v. Joint Bd. of Coat, Suit & Allied Garment Workers’ Union, 494 F.2d
 No. 22-5730 McKinney v. Starbucks Corp. Page 18

1230, 1241–42 (2d Cir. 1974); see also Cal. Pac. Med. Ctr., 19 F.3d at 458 (favorably citing the
same decision).

So one would expect us to honor that “traditional equitable authority” when the Board
seeks an injunction pursuant to § 10(j) of the Taft-Hartley Act. See Miller v. French, 530 U.S.
327, 340 (2000). “We presume that statutes conform to longstanding remedial principles.”
Arizona v. Biden, 40 F.4th 375, 396–97 (6th Cir. 2022) (Sutton, C.J., concurring). Absent the
“clearest” congressional instruction or an “inescapable inference” that we should depart from
those traditional equitable factors, we must apply them. Miller, 530 U.S. at 340 (citations
omitted); compare United States v. Miami Univ., 294 F.3d 797, 817 (6th Cir. 2002) (“Given the
assortment of remedies available in the [statute], Congress by no means foreclosed the exercise
of equitable discretion.”), with United States v. Szoka, 260 F.3d 516, 523, 524 (6th Cir. 2001)
(reading a statute’s command that the court “shall enforce obedience to such order by a writ of
injunction” to curtail discretion).

Weinberger v. Romero-Barcelo exemplifies the point. 456 U.S. at 305. There, a district
court found that the Navy violated a statutory scheme prohibiting permitless discharge of certain
pollutants. Id. at 307–08. The plaintiff asked the court to enter a preliminary injunction barring
the Navy from further violations. The court declined to do so based on its weighing of
traditional equitable factors. Id. at 309–10. On appeal, the First Circuit vacated the district
court’s order, believing that the Navy’s violation of a “statutory obligation” entitled the
challengers to an injunction. Id. at 310–11. That approach, the Supreme Court later held, was
contrary to the inherited, robust tradition, spanning “several hundred years,” of judicial
discretion over the propriety of injunctive relief. Id. at 313 (quotation omitted). The
“comprehensiveness of this equitable jurisdiction,” we were reminded, “is not to be denied or
limited in the absence of a clear and valid legislative command.” Id. (quoting Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946)). And because the statute at issue lacked a clear
command curtailing that discretion, whether injunctive relief was appropriate turned on an
assessment of the “great principles of equity.” Porter, 328 U.S. at 398 (approving the district
court’s exercise of equitable discretion) (citation omitted).
 No. 22-5730 McKinney v. Starbucks Corp. Page 19

Requests for injunctive relief under the Taft-Hartley Act should follow suit. Section 10(j)
authorizes a district court to grant injunctive relief when it is “just and proper” to do so. This is
“a limited exception to the federal policy against labor injunctions . . . reserved for ‘serious and
extraordinary’ cases.” Parents in Cmty. Action, 172 F.3d at 1037 (quotation omitted). As the
statute gives no indication that the traditional equitable factors governing an injunction ought to
be disregarded, we must apply them in § 10(j) proceedings. I am not alone in that view. In the
wake of Romero-Barcelo, at least four other circuits have said the same. See Spartan Mining
Co., 570 F.3d at 542; Parents in Cmty. Action, 172 F.3d at 1038 (“[T]he reference to ‘just and
proper’ in § 10(j) incorporates traditional equitable principles.”); Cal. Pac. Med. Ctr., 19 F.3d at
456 (same); Pioneer Press, 881 F.2d at 490–91 (Easterbrook, J.) (noting that “[d]eviations from
[the] traditional equitable balancing exist, but are rare,” and holding that “just and proper”
incorporates the four traditional Winter factors (citing Romero-Barcelo)). The Fourth Circuit
perhaps put it best. “In light of Romero-Barcelo, . . . in determining if a § 10(j) injunction should
issue, the traditional four-part equitable test should govern what relief is ‘just and proper.’”
Spartan Mining Co., 570 F.3d at 542. That being the case, our Circuit too should honor Romero-
Barcelo by applying the traditional four Winter criteria in § 10(j) proceedings.

B. And yet we do not. We instead followed a winding path through the decisions of a
handful of other circuits. What we found was a weak, two-part test: (1) reasonable cause and (2)
just and proper relief, defined as only some notion of future harm. To see why, turn back the
clock nearly 45 years to Levine v. C & W Mining Co., one of our early cases addressing § 10(j).
610 F.2d 432, 435 (6th Cir. 1979). Things started off on the right note. To determine what
standard the Board must meet to justify an injunction, we turned to § 10(j)’s text, specifically the
“just and proper” requirement. Id. In analyzing those terms, however, we left our interpretive
tools in the toolbox. More persuasive, it seems, was a “rumor chain” of rulings by other circuits.
Pioneer Press, 881 F.2d at 492. At the time, we observed, other appeals courts had
“consistently” held that the Board need only demonstrate “reasonable cause” to believe an unfair
labor practice had occurred for a § 10(j) injunction to issue. C & W Mining Co., 610 F.2d at 435
(citing decisions of the Second, Fifth, Eighth, and Tenth Circuits). Where, you might ask, did
these courts discover that standard? Not in the text of § 10(j), which makes no “reference to
‘reasonable cause.’” Spartan Mining Co., 570 F.3d at 542. Rather, that benchmark was
 No. 22-5730 McKinney v. Starbucks Corp. Page 20

imported from a neighboring statutory section that mandates, not merely permits (as does
§ 10(j)), that the Board seek an injunction in certain circumstances. See 29 U.S.C. § 160(l) (“If,
after [its initial] investigation [of certain unfair labor practices], the [Board] has reasonable cause
to believe . . . that a complaint should issue, [it] shall . . . petition . . . for appropriate injunctive
relief[.]” (emphasis added)); see also Cal. Pac. Med. Ctr., 19 F.3d at 456–57 (describing the
differences between §§ 10(j) and (l)); Pioneer Press, 881 F.2d at 489 (same); Note, Temporary
Injunctions Under Section 10(j) of the Taft-Hartley Act, 44 N.Y.U. L. Rev. 181, 187–89 (1969)
(same). An unusual approach, to be sure. After all, we presume Congress makes an intentional
decision “when it uses particular language in one section of a statute but omits it in another.”
Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015) (citing Russello v. United States,
464 U.S. 16, 23 (1983)). Yet by judicial fiat, we overrode Congress’s choice to differentiate
between §§ 10(j) and (l). No rationale for this approach was offered, other than the observation
that reasonable cause was “an implicit prerequisite for relief.” See Angle v. Sacks ex rel. NLRB,
382 F.2d 655, 658 (10th Cir. 1967); McLeod ex rel. NLRB v. Compressed Air Workers, Loc. No.
147, 292 F.2d 358, 359 (2d Cir. 1961) (similar). And with that, we entrenched “reasonable
cause”—rather than the more demanding “likelihood of success” standard—as the one the Board
must meet to secure an injunction.

Having adopted the “reasonable cause” standard, we next needed to define it. Again, we
peered over the horizon. What we discovered was the supposition in other circuits that
reasonable cause places a “relatively insubstantial” burden on the Board. C & W Mining Co.,
610 F.2d at 435 (citing Hirsch v. Bldg. & Constr. Trades Council, 530 F.2d 298, 302 (3d Cir.
1976)). That “insubstantial” obligation soon became a fixture in our case law. E.g., Fleischut v.
Nixon Detroit Diesel, Inc., 859 F.2d 26, 29 (6th Cir. 1988); Kobell ex rel. NLRB v. United
Paperworkers Int’l Union, 965 F.2d 1401, 1406 (6th Cir. 1992); Schaub v. W. Mich. Plumbing &
Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001); Muffley ex rel. NLRB v. Voith Indus. Servs.,
Inc., 551 F. App’x 825, 830 (6th Cir. 2014). As advertised, the burden is not a heavy one. On
the law, “the [Board] need not convince the court of the validity of the Board’s theory of
liability, as long as the theory is substantial and not frivolous.” Gottfried ex rel. NLRB v.
Frankel, 818 F.2d 485, 493 (6th Cir. 1987) (citing other circuits). Absent legal frivolity on the
Board’s part, in other words, it will satisfy the reasonable cause requirement. And on the facts,
 No. 22-5730 McKinney v. Starbucks Corp. Page 21

the Board must show merely that “facts exist which could support” its theory of liability.
Ozburn-Hessey Logistics, 875 F.3d at 339 (emphasis added) (quotation omitted).

That leaves the second inquiry in our two-part test: is injunctive relief “just and proper?”
Repeating our atextual ways, we departed from the straightforward meaning of that statutory
phrase. Frankel, 818 F.2d at 494; Sheeran ex rel. NLRB v. Am. Com. Lines, Inc., 683 F.2d 970,
979 (6th Cir. 1982) (quoting Angle, 382 F.2d at 660). Traditionally, a movant who has
demonstrated a likelihood of success on its claim must also show that it would be irreparably
injured without an injunction (as well as why the equities and public interest favor relief).
Winter, 555 U.S. at 20; see also Cal. Pac. Med. Ctr., 19 F.3d at 456. But for the Board, we had
other ideas. Influential was the Tenth Circuit’s holding that the “just and proper” inquiry
amounted to asking only whether the “efficacy of the Board’s final order” could be “nullified”
without preliminary judicial intervention. Am. Com. Lines, 683 F.2d at 979 (quoting Angle, 382
F.2d at 660). That line of reasoning too had suspicious origins—it was the product of divining
the law’s purpose from its legislative history, a now disfavored method of interpretation. Angle,
382 F.2d at 660; see also Kobell ex rel. NLRB v. Suburban Lines, Inc., 731 F.2d 1076, 1090 (3d
Cir. 1984) (analyzing “just and proper” as “an instance where courts do better not so much to
focus upon the particular words of the governing statute, but upon the general communication
the law-making bodies were attempting to send to the courts and the public in passing the
relevant act”). Regrettably, we followed this misguided lead. Am. Com. Lines, Inc., 683 F.2d at
979. Over time, we have whittled down the “just and proper” criterion to mean that the mere
potential for future impairment of the Board’s remedial power is enough to justify injunctive
relief. E.g., Nixon Detroit Diesel, 859 F.2d at 30 (allowing 10(j) injunctions when “the
enforcement of a Board order after the Board’s normal processes” may be “ineffective to undo
the effects of unfair labor practices”).

Where does that leave things? Step one of our § 10(j) test requires a meager showing of
“reasonable cause.” Step two is no more demanding. It compels only a possibility of future
harm to the Board’s remedial power. Some 20 years after adopting these benchmarks, and in the
aftermath of Romero-Barcelo, we expressly declined an invitation to replace them with the
traditional four-part test from Winter. Ahearn ex rel. NLRB v. Jackson Hosp. Corp., 351 F.3d
 No. 22-5730 McKinney v. Starbucks Corp. Page 22

226, 234–35 (6th Cir. 2003). As far as I can tell, Ahearn turned more on the volume of our
earlier decisions than it did their veracity. That is, the number of cases we had decided since
Romero-Barcelo coupled with the sheer passage of time seemingly was enough to justify our
continued adherence to the two-part test. Id. And so we have marched on, dutifully applying
that precedent. E.g., Maj. Op.; Ozburn-Hessey Logistics, 875 F.3d at 339; Voith Indus. Servs.,
Inc., 551 F. App’x at 830, 833; Glasser ex rel. NLRB v. ADT Sec. Servs., Inc., 379 F. App’x 483,
485 (6th Cir. 2010). Over four decades, we entrenched a body of law far out of line with
traditional equity jurisprudence, an approach others have now jettisoned. With two decades of
added perspective, our approach to § 10(j) injunctions should be overhauled.

C.1. Today’s case helps demonstrate why. Had the Board’s request for injunctive relief
been evaluated under the Winter factors, victory would have been far less certain. That reality is
evident at every turn, starting with the touchstone for injunctive relief—whether a plaintiff is
“likely” to succeed on its claims. Winter, 555 U.S. at 20. Not only the first of the four factors,
the likelihood of success often carries the most weight. Kentucky, 57 F.4th at 550.

Applying that guidepost here would have required a thorough probing of the facts as well
as the Board’s legal theories. McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012) (requiring
“stringent” proof to make out a likelihood of success in a preliminary posture). Consider, for
example, the issue of Starbucks’s motive. The Board’s theory of anti-union retaliation rested on
the notion that Starbucks was aware of organizing activity when it fired Taylor and when it
closed its store before planned union-related activities. During the district court proceedings,
however, the store managers denied both allegations. The Board countered with contrary
testimony. Were this a traditional equitable inquiry, the district court would have been obligated
to settle these disputes of material fact, at least on a preliminary basis. See Certified Restoration
Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 552–53 (6th Cir. 2007) (requiring an
evidentiary hearing on a preliminary injunction motion when material facts are disputed); Cobell
v. Norton, 391 F.3d 251, 261–62 (D.C. Cir. 2004) (holding that a district court abuses its
discretion when it fails to hold an evidentiary hearing where credibility determinations are
required). I cannot say for certain that Starbucks would have prevailed. But nor, without
factfinding, am I certain that the Board would have triumphed. Resolving credibility
 No. 22-5730 McKinney v. Starbucks Corp. Page 23

determinations is the district court’s bread and butter. Eagle Supply & Mfg., LP v. Bechtel
Jacobs Co., 868 F.3d 423, 430 (6th Cir. 2017) (citing Anderson v. City of Bessemer, 470 U.S.
564, 575 (1985)). Yet it was never asked to do so.

That is the case because the factual analysis in § 10(j) proceedings is largely superficial.
Employing the reasonable cause standard, the district court contented itself that the Board had
shown “sufficient evidence” of unlawful anti-union retaliation. A searching review? Hardly.
But a passable one under our imported reasonable cause standard. To clear that hurdle,
remember, all the Board had to do was (1) illustrate a non-frivolous legal theory and (2) claim
facts consistent with that theory. Ozburn-Hessey Logistics, 875 F.3d at 339 (quoting W. Mich.
Plumbing & Heating, 250 F.3d at 969).

The first prong, in truth, is no real obstacle. By all accounts, it is chiefly concerned with
the ability of the Board’s attorneys to research labor law and pair it with a complaint. See id. at
340 (substantial legal theory existed where the Board correctly identified a statute prohibiting
labor discrimination); Jackson Hosp. Corp., 351 F.3d at 238 (same). Assuming a case has been
brought in good faith, it is hard to imagine how the Board could not articulate a “substantial legal
theory.” Proving as much, respondents often decline to challenge the Board’s showing, a tack
Starbucks took here. Maj. Op. at 8; see also, e.g., W. Mich. Plumbing & Heating, 250 F.3d at
969; Nixon Detroit Diesel, 859 F.2d at 29–30.

That leaves the second “reasonable cause” prong—claiming facts consistent with the
Board’s theory. It is no more demanding. In making this assessment, we prohibit the district
court from any manner of “fact-finding.” That otherwise routine task becomes “inappropriate in
the context of a district court’s consideration of a 10(j) petition.” Jackson Hosp. Corp., 351 F.3d
at 237 (citation omitted); compare id., with Sisters for Life, 56 F.4th at 403 (noting the standard
of review for a district court’s factual findings in a preliminary injunction decision). In this way,
we have allowed the Board to secure relief by saying little more than “trust me”—a standard
that, at its apex, merely resembles our civil pleading requirements. Compare Ozburn-Hessey
Logistics, 875 F.3d at 339 (“So long as facts exist which could support the Board’s theory of
liability, the district court’s findings cannot be clearly erroneous.” (cleaned up)), with Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))
 No. 22-5730 McKinney v. Starbucks Corp. Page 24

(accepting plausible factual allegations in complaint as true on a motion to dismiss). Were the
§ 10(j) “reasonable cause” standard applied in the traditional civil litigation setting, any
complaint that could withstand Rule 12(b)(6) would automatically be deserving of injunctive
relief as well, rendering the court more a spectator than a referee when it comes to matters of
equity.

Of course, § 10(j) proceedings are distinct from traditional civil litigation. And it is not
our job to usurp the Board’s role as primary enforcer of the NLRA. Nixon Detroit Diesel, 859
F.2d at 28–29. But why a preliminary determination of facts on our part would unduly interfere
with or influence the Board, let alone bind it, is neither explored nor explained in our cases. Cf.
Robertson v. U.S. Bank, N.A., 831 F.3d 757, 761 (6th Cir. 2016) (“[A]ny findings of fact and
conclusions of law at [the temporary injunction] stage do not bind the court when it reaches the
merits.” (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).

In sum, “reasonable cause” at best boils down to a halfhearted version of the traditional
likelihood of success test. “[R]elatively insubstantial,” we have said. Ozburn-Hessey Logistics,
875 F.3d at 339 (quotation omitted). Likewise, it is neither expedient nor likely to produce
consistent results. Pioneer Press, 881 F.2d at 490–91 (stating that reasonable cause “causes
motion but not progress” and observing that “[t]rying to sort cases into bins according to the
presence or absence of ‘reasonable cause’ has produced a complex body of law concerning
standards of appellate review” across the circuits). We would be better served by casting it
aside, as has the en banc Ninth Circuit and others, in favor of the customary four-factor test. Cal.
Pac. Med. Ctr., 19 F.3d at 457; see also Pioneer Press, 881 F.2d at 491–93 (departing from a
prior interpretation of § 10(j)). Doing so would still respect Congress’s decision to imbue the
Board with investigative and adjudicative functions. McKinney ex rel. NLRB v. S. Bakeries,
LLC, 786 F.3d 1119, 1123 (8th Cir. 2015). And it would make the governing standard a
contestable one, requiring the district court to assess the likelihood that the Board can actually
prevail in the matter. That is not much to ask, given the stakes.

2. Turn next to the nature of the harm the Board needed to establish to justify the
issuance of § 10(j) relief. Despite its own enforcement powers, the Board professed to need
preliminary relief to ensure at the proceeding’s close its ability to remedy the harm caused by
 No. 22-5730 McKinney v. Starbucks Corp. Page 25

Starbucks’s conduct. See 29 U.S.C. § 160(a) (describing the Board’s enforcement powers).
Applying our “just and proper” jurisprudence, the district court asked only whether any potential
injury could be inflicted on the Board’s remedial power. See Jackson Hosp. Corp., 351 F.3d at
239. Measuring with that diminutive ruler, the district court found that in the absence of
injunctive relief, the Board might be curtailed in crafting remedies at the case’s end.

Those proceedings would have been drastically different had the Board been asked to
satisfy the Winter standard. Winter famously requires the movant to demonstrate an irreparable
injury, an “indispensable” requirement for injunctive relief to issue. 555 U.S. at 21–22; D.T. v.
Sumner Cnty. Schs., 942 F.3d 324, 327 (6th Cir. 2019). The genre of irreparable harm at issue
here is harm that the Board, entrusted with its own enforcement powers, would otherwise be
powerless to fix. Henderson ex rel. NLRB v. Bluefield Hosp. Co., LLC, 902 F.3d 432, 440 (4th
Cir. 2018); Parents in Cmty. Action, 172 F.3d at 1039 (applying the Winter test and describing
the Board’s task in showing the “rare situation[] in which the delay inherent in completing the
adjudicatory process will frustrate the Board’s ability to remedy” any resulting harm as a “high
hurdle”). As compared to the just and proper standard, this is the difference between the possible
and the highly probable. See United Paperworkers Int’l Union, 965 F.2d at 1409 n.3
(contrasting the “just and proper” standard with “the traditional, more stringent requirement of
irreparable harm”); Nixon Detroit Diesel, 859 F.2d at 30 n.3 (same); see also Winter, 555 U.S. at
22 (explaining that an irreparable injury is not demonstrated by proving the “possibility” of
harm).

An irreparable injury is one that cannot be remedied through “money damages or other
relief.” 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1
(3d ed.) (footnotes omitted). Had the district court been searching for one, it would have faced a
difficult inquiry: did Starbucks’s purported unfair labor practices so thoroughly douse the
nascent unionization movement’s fire that the Board would have been powerless to reignite it
going forward? See Hooks ex rel. NLRB v. Nexstar Broad., Inc., 54 F.4th 1101, 1118–20 (9th
Cir. 2022) (holding that the district court abused its discretion in granting a § 10(j) injunction
where it presumed, rather than analyzed, irreparable harm to the Board’s remedial power);
Bluefield Hosp. Co., 902 F.3d at 442–43 (affirming, under the Winter test, the denial of a
 No. 22-5730 McKinney v. Starbucks Corp. Page 26

preliminary injunction where the Board “fail[ed] to demonstrate that the Board’s ability to
redress the alleged unfair labor practices will be impaired or frustrated”); S. Bakeries, 786 F.3d at
1125–26 (vacating a § 10(j) injunction where the Board did not make out irreparable injury to its
remedial powers).

Consider whether that movement was actually chilled following the Memphis Seven’s
termination. The district court seems to have presumed that termination of union supporters
necessarily produces an insurmountable chill on organizing. No such supposition would be
allowed, however, under the irreparable injury inquiry. See Bluefield Hosp. Co., 902 F.3d at 440
(highlighting “a fundamental tension between the Board’s theories of inherent harm and the
Supreme Court’s recognition that ‘a preliminary injunction is an extraordinary remedy never
awarded as of right’” (quoting Winter, 555 U.S. at 24) (emphasis omitted)). Nor was there any
description of why the Board could not ultimately remedy the follow-on effects of the
terminations, if those terminations did indeed produce a chill. Memphis A. Philip Randolph Inst.
v. Hargett, 978 F.3d 378, 391 (6th Cir. 2020) (“To merit a preliminary injunction, an injury
‘must be both certain and immediate,’ not ‘speculative or theoretical.’” (quoting D.T., 942 F.3d
at 327)). Much the same is true for the court’s finding that the absence of six of the bargaining
committee’s members would impair the remaining employees’ ability to unionize. Perhaps that
translates into irreparable injury, perhaps not. Before granting extraordinary relief, though, we
should at least be asking the question.

3. Were it wrapping up an analysis under the Winter test, the district court would have
also considered the balance of the equities and the public interest. D.T., 942 F.3d at 326. It
might have entertained, for example, Starbucks’s unclean hands defense. See Performance
Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1383 (6th Cir. 1995). Or the broad
public policy implications of the growing unionization movement at Starbucks, a topic that has
received national attention, including in in the halls of Congress. Heather Haddon, Starbucks’s
Howard Schultz Faces Tough Questions from Bernie Sanders About Union Talks, Wall St. J.
(updated March 29, 2023, 3:52 PM), https://perma.cc/MGD8-P9AR.

Refusing to entertain arguments about those important considerations “slight[s]” them.
Spartan Mining Co., 570 F.3d at 543. Yet under our interpretation of “just and proper,” it is not
 No. 22-5730 McKinney v. Starbucks Corp. Page 27

apparent which factors (other than future injury) fit within that phrase’s scope. We once
suggested that a district court might consider aspects other than just potential future injury, like
the Board’s delay in seeking a § 10(j) injunction. Frankel, 818 F.2d at 495. But how broad is
the doorway Frankel opens? Seemingly not so broad as to allow consideration of all four
equitable factors, a point emphasized here, where Starbucks’s unclean hands defense fell by the
wayside. Maj. Op. at 11–12; see also Ozburn-Hessey Logistics, 875 F.3d at 343. Ultimately,
Frankel’s hint remains only that: a hint. Litigants and lower courts are left to guess at what
items fall under the just and proper prong. Cf. Edwards v. Vannoy, 141 S. Ct. 1547, 1566 (2021)
(Gorsuch, J., concurring) (“Sometimes this Court leaves a door ajar and holds out the possibility
that someone, someday might walk through it—though no one ever has or, in truth, ever will.”).
Utilizing the Winter standard would clear up this fuzzy picture.

4. All things considered, our § 10(j) jurisprudence has dramatically lowered the bar for
the Board in securing an injunction, “an extraordinary remedy never awarded as of right.”
Benisek, 138 S. Ct. at 1943 (quoting Winter, 555 U.S. at 24). That body of law has produced
predictable consequences. As a bottom-line matter, our feeble test stacks the deck in the Board’s
favor, a point the Board well understands: it claims to have achieved “either a satisfactory
settlement or substantial victory in litigation” in a whopping 93 percent of the § 10(j) cases it
brought in fiscal year 2022. Performance and Accountability Report FY 2022, at 86. And the
slow pace of Board proceedings means that this “temporary” relief binds private parties for
months, if not years.

That is no small matter for those restrained by the injunction. That equitable remedy
amounts to a “drastic” judicial intervention, Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139, 165 (2010), an exercise of the “strong arm of equity,” with significant coercive effects.
Detroit Newspaper Publishers Ass’n v. Detroit Typographical Union No. 18, 471 F.2d 872, 876
(6th Cir. 1972) (quotation omitted). Considerable forces push against allowing these invasions.
One is our responsibility to guard individual liberty zealously from government incursion. See
Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 69–72 (2020) (Gorsuch, J.,
concurring). Another is our obligation to rigorously police the limits of our own power. See
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (“Requiring a plaintiff to demonstrate
 No. 22-5730 McKinney v. Starbucks Corp. Page 28

a concrete and particularized injury caused by the defendant and redressable by the court ensures
that federal courts decide only ‘the rights of individuals,’ and that federal courts exercise ‘their
proper function in a limited and separated government.’” (internal citations omitted)). If
injunctive relief truly is “extraordinary,” Winter, 555 U.S. at 24, then we should be doubly
cautious before infringing upon a private party’s ability to operate at the government’s request.

* * * * *

Our 40-year experiment with borrowed jurisprudence has not served us well. In the right
case, our en banc Court should reconsider our approach to § 10(j). We would not be the first.
Among other circuits, the Seventh Circuit previously departed from its prior practice to conform
to text and Supreme Court precedent, bringing its approach to § 10(j) in line with Winter. Judge
Easterbrook recognized there the hard truth that while “[c]ourts are reluctant to overrule their
decisions,” we “[n]onetheless . . . have an obligation to give statutes their proper meaning rather
than to perpetuate the effects of our own mistakes.” Pioneer Press, 881 F.2d at 491. We would
be wise to do the same.