Bass, Berry & Sims attorneys Tim Garrett and Hunter Yoches co-authored an article for Law360 providing insight into the Kerwin v. Trinity Health Grand Haven Hospital decision by the U.S. Court of Appeals for the Sixth Circuit, which held that an alleged failure to bargain, even if unlawful, does not automatically justify injunctive relief.
The decision marks the first time the Sixth Circuit applied the Supreme Court’s 2024 ruling in Starbucks Corp. v. McKinney, which called for stricter scrutiny of the National Labor Relations Board (NLRB) requests for Section 10(j) injunctions. The new standard requires the NLRB to present specific evidence that “certain and immediate” irreparable harm would occur without an injunction.
The ruling sets the stage for a likely circuit split, as the Sixth Circuit’s approach conflicts with decisions from the Second, Fourth, and Ninth Circuits, which have allowed district courts to draw permissive inferences of irreparable harm from factual findings about diminished union support.
Tim and Hunter noted that while the decision does not change the underlying substantive labor laws, it heightens the NLRB’s burden for obtaining 10(j) injunctions. Thus, it significantly alters the leverage that the NLRB can use in threatening injunctions in unfair labor practice proceedings across the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.
“Courts will require evidence demonstrating actual consequences (i.e., erosion of bargaining power, loss of union support, or impairment of the NLRB’s remedial authority),” said Tim and Hunter. “Notably, what is usually considered the most important factor – a likelihood of success on the merits – will be insufficient for the NLRB to receive an injunction where it cannot show irreparable harm.”
Tim and Hunter added that the NLRB’s ability to use the threat of Section 10(j) relief to force settlement in underlying unfair labor practice cases no longer carries the same weight for employers in the Sixth Circuit.
“Going forward, this decision puts employers on stronger grounds to oppose Section 10(j) petitions and to resist NLRB pressure through a threat of its seeking 10(j) relief,” said Tim and Hunter.
The full article, “How 6th Circ. Tightened NLRB Injunction Standard,” was published by Law360 on July 2 and is available online (subscription required).