Key Takeaways
- Sixth Circuit applies Starbucks, requiring full four-factor test for Section 10(j) injunctions.
- NLRB must prove irreparable harm with concrete evidence; Court will not presume harm based on likelihood of success.
- Injunction vacated despite Board’s strong merits position because evidence of harm was anecdotal and speculative.
On May 1, 2026, in Elizabeth Kerwin v. Trinity Health Grand Haven Hospital, the Sixth Circuit reversed a district court order that required Trinity Health Grand Haven Hospital (“Trinity Health”) to bargain with its union. It is the first Sixth Circuit decision applying the Supreme Court’s 2024 ruling in Starbucks Corp. v. McKinney to requests for Section 10(j) injunctions.
Why it matters: The court made clear that, after Starbucks, the National Labor Relations Board (“Board”) must meet the same four-factor preliminary-injunction test as any other plaintiff—and it must prove irreparable harm with concrete evidence. The Sixth Circuit rejected the Board’s argument that courts can simply assume irreparable harm whenever the Board shows a strong likelihood of success on the merits. As a result, Section 10(j) injunctions should be harder to obtain in the Sixth Circuit even in cases where the Board has shown it is likely to succeed on an unfair labor charge.
Legal Background
When the Board issues a charge alleging an unfair labor practice, Section 10(j) of the National Labor Relations Act (“NLRA”) lets the Board ask a federal district court for a temporary order restraining the alleged unlawful conduct while the case is litigated.
Before 2024, the Sixth Circuit applied a comparatively easy-to-meet test to requests for Section 10(k) injunctions. The Board generally only had to show “reasonable cause” to believe an unfair labor practice occurred and that an injunction would be “just and proper.” McKinney v. Ozburn-Hessey Logistics, LLC, 875 F.3d 333, 339 (6th Cir. 2017). The “reasonable cause” showing was described as “relatively insubstantial” and could be met if the Board’s theory was “substantial and not frivolous.” Id.
In 2024, the Supreme Court rejected that more lenient approach. It held that Section 10(j) injunctions are an “extraordinary remedy,” and the Board must make a “clear showing” on the same four factors any other party moving for a preliminary injunction. Starbucks Corp. v. McKinney, 602 U.S. 339 (2024). Those four factors are:
(1) a likelihood of success on the merits;
(2) a likelihood of irreparable harm without an injunction;
(3) that the balance of equities favors an injunction; and
(4) that an injunction would serve the public interest.
What Happened
The case arises from a bargaining dispute at a regional hospital. After the collective bargaining agreement (“CBA”) expired in summer 2022, Trinity Health acquired the hospital. Employees voted to affiliate with an international service workers’ union.Trinity Health recognized the affiliation, extended the CBA until February 2023 and began bargaining for a successor agreement.
By spring 2023, the parties still had not reached a new CBA. In July 2023, an employee filed a decertification petition with the Board, leading to a September 2023 election.
On September 28, 2023—after employees voted but before the election results were announced—an employee delivered a “disaffection petition” to the hospital president, claiming to show majority support for removing the union without an election. The petition purported to include 94 signatures (out of a 180-member unit), but it had notable defects: signatures were not dated; many appeared on pages that did not state the petition’s purpose; and roughly 60 signatures were recycled from the earlier decertification petition (making them months old). Trinity Health nevertheless withdrew recognition and stopped bargaining, stating it had “objective evidence” the union had lost majority support.
The next day, the Board reported that the decertification effort failed: 89 employees voted to keep the union and 66 voted to decertify (out of 182 eligible voters). Trinity Health objected to the results and continued to refuse recognition. The union then filed unfair labor practice charges, alleging Trinity Health’s refusal to recognize and bargain violated the NLRA.
An Administrative Law Judge (“ALJ”) sided with the union and found a violation based on Trinity Health’s refusal to bargain with the certified representative. Trinity Health appealed to the Board, and that appeal is still pending. During the ALJ proceedings, the Board’s Regional Director sought a Section 10(j) injunction in district court. The district court granted the request and ordered Trinity Health to recognize the union and resume bargaining pending the Board’s decision. Trinity Health appealed the district court’s injunction to the Sixth Circuit.
What the Sixth Circuit Held
On appeal, the Sixth Circuit agreed the Regional Director had a strong case on the merits—but still vacated the injunction because the Director did not come forward with evidence of irreparable harm. The decision is the Sixth Circuit’s first detailed guidance on what Starbucks requires in the Section 10(j) context.
Likelihood of Success
The court held the Director satisfied the “likelihood of success” factor. Importantly, it explained what that means in a Section 10(j) case after Starbucks: because Board orders are not self-executing, the Director must show not only a likelihood of prevailing before the Board, but also a likelihood that the court of appeals would later enforce the Board’s order.
Applying that standard, the court concluded the Director was likely to prevail on the claim that Trinity Health unlawfully withdrew recognition. Trinity Health’s defense required it to show the disaffection petition was “objective evidence” of lost majority support. But the petition’s defects—undated signatures, missing statements of purpose on many pages and stale/recycled signatures—undercut its reliability.
Irreparable Harm
The Court held the Director nevertheless failed to prove irreparable harm. The court explained that in the Section 10(j) setting, irreparable harm means harm the Board cannot adequately address later through its normal remedial powers. Because the Board has significant remedial authority, the court emphasized that injunctions should be reserved for “rare instances.”
The Director argued that, without an order forcing Trinity Health to bargain immediately, union support would predictably erode and bargaining would be harder later. Some courts (including the Ninth Circuit) have allowed judges to infer irreparable harm from a refusal to bargain. The Sixth Circuit declined to do that here. Reading Starbucks strictly, it held the Director must prove irreparable harm with evidence—just as any other plaintiff must—rather than rely on assumptions.
The court found the Director’s proof too thin: a few anecdotes about lower union meeting attendance, affidavit statements that were largely conclusory (describing “frustration and fear”) and speculation about lost benefits. That record did not show irreparable harm, so the Sixth Circuit vacated the injunction.
Takeaways
The Sixth Circuit’s new Section 10(j) standard is good news for employers in Michigan, Ohio, Kentucky and Tennessee, as it creates a significantly higher hurdle for the Board to obtain injunctions than previously existed in the Sixth Circuit.
Key points for employers:
- No more presumptions: Even if the Board shows it is likely to win, it still must present affirmative evidence that irreparable harm is likely without an injunction.
- Two-step “success” showing: The Board must show it is likely to prevail before the Board and that the court of appeals is likely to enforce the Board’s order.
- Expect narrower Section 10(j) use: The Sixth Circuit’s emphasis on the Board’s existing remedial powers suggests Section 10(j) injunctions should be reserved for exceptional cases.
- Litigation strategy: Employers opposing Section 10(j) requests should focus early on the irreparable-harm record (e.g., whether the Board has concrete, non-conclusory evidence of erosion that cannot be remedied later). Further, employers should attempt to rebut legal arguments based exclusively on Board precedent, because a court of appeals is not bound by the Board’s legal conclusions.
If you have any questions, contact your Dinsmore labor and employment attorney.