Second Court Issues 10(j) Injunction Applying the Stricter Starbucks Standard

SCOTUS’s recent adoption of a stricter standard for issuing unfair labor practice injunctions did not prevent Region Four of the NLRB from securing an injunction against a residential treatment facility’s subcontracting the work performed by its unionized nurses. U.S. District Court Judge Harvey Bartle III of the Eastern District of Pennsylvania granted the Board an injunction, and ordered New Vitae to immediately reverse its subcontracting, restore the nurses to their jobs, and bargain with the union. Kimberly Andrews v. New Vitae, No. 25-4515 (E.D. Pa Jan. 27, 2026).

New Vitae’s 21 Registered Nurses voted in March 2024 to unionize with 1199C National Union of Hospital and Health Care Employees. Shortly after the union election, New Vitae suspended and reduced the pay of a lead union supporter, which the Union alleged was retaliatory. Later, during collective bargaining negotiations, New Vitae announced that it would lay off all nurses and subcontract the work performed by nurses to staffing agencies. Generally, an employer must bargain with a union before it subcontracts union work, unless the decision represents a complete change in the direction of its business and is unrelated to labor costs.

After the NLRB filed a complaint claiming New Vitae failed to give adequate notice of the subcontracting decision and that the decision to subcontract was in retaliation for the union vote, the Region took the relatively rare step of seeking a federal injunction under Section 10(j) of the NLRA to require reinstatement of the nurses to work while the complaint proceeded to trial, basically demanding the “status quo” that existed before the alleged unlawful conduct. After trial and briefs, the Administrative Law Judge sided with the NLRB and held that New Vitae’s subcontracting was motivated by anti-union animus and done with insufficient notice or bargaining. That decision awaits full Board review, which could take a year or more.

In the meantime, a federal injunction has been granted, which means New Vitae must at least for now re-employ the nurses regardless of the ultimate decision on the merits of the case. Under the Supreme Court’s Starbucks Corp. v. McKinney decision, for an injunction to issue, as this one did, the NLRB must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in petitioner’s favor; and (4) an injunction is in the public interest. Judge Bartle found the NLRB’s case satisfied each of these factors.

With respect to the factors, Judge decided that the NLRB is likely to prevail in showing that New Vitae laid off all members of the bargaining unit and subcontracted the nurses’ work without notifying and bargaining with the Union in violation of Section 8(a)(5) and was motivated by anti-union animus in violation of Section 8(a)(3). As to likelihood of harm without an injunction, the judge reasoned that, without immediate reinstatement of the nurses, support for the union will wane and impede the Union’s bargaining power. Balancing the equities, the judge concluded that without immediate relief, the harm the Union and the unionized nurses would suffer outweighed any harm New Vitae may suffer, which is mitigated by having the experience and skills of reinstated RNs and future lawful subcontracting options. Finally, the judge decided that preliminary relief is in the public interest given the vindication of labor rights.

The analysis the court performed under the four-factor test required a deeper evidentiary dive than would have been necessary under the previous two-part test which SCOTUS rejected and which considered only whether there was reasonable cause to find a violation existed and whether injunctive relief would be “just and proper.” In the face of this stricter test, the judge granted the injunction. We previously reported that the Second Circuit Court of Appeals in Poor v. Parking Systems Plus enforced an injunction using the Starbucks Corp. v. McKinney four-part test. It is not yet known whether New Vitae will appeal this decision to the Third Circuit Court of Appeals. In any event, these court decisions may embolden the NLRB and labor advocates to pursue injunctions to counteract what has become an increasingly protracted and unreliable administrative process at the NLRB.

Should you have any questions, please contact Partners Edward J. Bonett, Jr., Esq. at 908.546.6991 or via email here, Patrick W. McGovern, Esq. at 973.535.7129 or via email here, or any Partner in our firm’s Labor Law Practice Group.