In today’s news and commentary, the Supreme Court hears cases about 10(j) injunctions and forced arbitration; and workers increasingly strike before earning a first union contract.

The Supreme Court is hearing oral argument today in a case regarding what standard courts should apply to the NLRB’s requests for 10(j) injunctions. These injunctions allow the agency to seek immediate relief in time-sensitive cases, for example when union supporters are unlawfully fired shortly before a union election. Four circuit courts currently apply their typical multi-factor test for injunctions to 10(j) requests, while five other circuits focus on whether the likelihood of a labor law violation makes a 10(j) injunction “just and proper.” Data suggest that the two tests yield similar results in court. This case arises out of an injunction that the NLRB obtained against Starbucks after it fired a group of workers known as the “Memphis Seven” at a Tennessee store.

The Court also heard oral argument yesterday in Smith v. Spizzirri, which presents the question of whether courts should stay or dismiss employment lawsuits pending the outcome of mandatory arbitration. While 65% of low-wage workers are bound by forced arbitration clauses, which the Supreme Court has been eager to find enforceable, there is a circuit split regarding how courts should process cases bound for arbitration. In four circuits, courts may dismiss these cases in order to reduce strain on their dockets. Six other circuits instead require that these cases be put on hold. Employment law experts have argued that dismissal is actually better for workers, because it allows them to immediately appeal the enforceability of the arbitration agreements that bind them.

Recent data indicates that newly unionized workers are increasingly striking before they win their first union contract. Bloomberg Law reports that over one-third of strikes in 2022 and 2023 fit this description, more than double the previous rate. The uptick in pre-contract strikes may be related to the ever-more-lengthy delays that unions face in bargaining first contracts, which now average over 500 days.