The Supreme Court just quashed a bid for pro-union favoritism in Starbucks v. McKinney. Writing for his colleagues, Justice Clarence Thomas held that, to win injunctions against employers allegedly engaged in unfair labor practices, the National Labor Relations Board (NLRB) must meet the same legal standards as anybody else.
Thomas’ opinion reverses a ruling from the 6th U.S. Circuit Court of Appeals that required the agency merely to demonstrate “reasonable cause” and that injunctive relief is “just and proper.” Under this standard, Thomas wrote, “The Board ‘need not convince the court of the validity of [its] theory of liability, as long as the theory is substantial and not frivolous.’”
Ordinarily, however, a plaintiff seeking an injunction must demonstrate (among other things) a likelihood of success on the merits of their case — a significantly more rigorous test than the 6th Circuit’s. “A preliminary injunction is an ‘extraordinary’ equitable remedy that is ‘never awarded as of right,’” Thomas noted. The court’s ruling clarifies that the NLRB has no special exemption or legal fast lane through which it can impose its will on employers. “The reasonable-cause standard goes far beyond simply fine-tuning the traditional criteria to the [statutory] context,” he argued, “it substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities.”
Faithful judicial interpretations do not always produce desirable public policy outcomes. But in this case, Thomas’ sound legal reasoning did just that, removing judicially manufactured life support that arbitrarily aided a phylum of corrupt and dying institutions. In incremental fashion, at least, the court reinvigorated freedom of association.
Too often, however, government officials purporting to bolster this fundamental American freedom instead deploy the state’s coercive powers to strengthen whatever kinds of associations they personally prefer. But freedom of association necessitates the freedom to dissociate — to join certain groups and to avoid others.
Far from allowing American workers to choose either to negotiate solo or to bargain collectively, Washington has systematically aided organized labor, corralling workers — irrespective of their wishes — into the purportedly benevolent clutches of Big Labor. This bias has manifested in copious regulation, tilting unionization votes in favor of organizing, conditioning federal contracts on union-friendly wage policies, regulating technology to protect union jobs, hamstringing gig work, and much more.
In reality, unions are flailing — even with Washington’s assistance. Most Americans choose to work free of organized labor’s ideological radicalism and costly dues. In 2023, only 6 percent of private-sector workers belonged to unions, which have become an ever-thinning sliver of the workforce.
To the lucky few, unions provide large paychecks and generous benefit plans. This undoubtedly helps those to whom these perks accrue. But for others, Big Labor’s excesses mean lost jobs, subpar productivity, and higher consumer prices. Companies and jobs have fled union-dominated states for friendlier regulatory environments in the right-to-work south — fracturing erstwhile union towns. Unions also often lobby employers to eschew efficient new technologies — a self-interested habit of organized labor dating back to medieval guilds — hobbling unionized firms’ competitive efforts against both American and foreign rivals.
Worse still, the union dues funding this decline all too often disappear into labor leaders’ social-policy side projects — or their personal pocketbooks. United Auto Workers (UAW) has seen multiple leaders receive prison sentences for embezzlement. As National Review’s Dominic Pino writes, “Corruption is so integral to the UAW that the Department of Justice doesn’t trust it to operate without a monitor,” prompting a federal court to appoint Neil Barofsky as an ombudsman in 2021. Now Barofsky says that UAW President Shawn Fain — pro-union America’s favorite son — has slow-rolled an investigation into Fain’s own alleged financial misconduct.
Ultimately, the government’s efforts to support unions amount to social and economic planning. “The morality and intelligence of a democratic people would risk no fewer dangers than its business and its industry if the government came to take the place of associations everywhere,” Tocqueville warned. This danger looms whether government officials outright replace private associations or cajole citizens into state-favored associations, usually ones whose leaders finance those officials’ reelection campaigns.
Most Americans have the horse sense to distance themselves from organized labor’s foibles. The government shouldn’t gainsay them.
David B. McGarry is a policy analyst with the Taxpayers Protection Alliance.
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