On May 2, 2026, the U.S. Court of Appeals for the Sixth Circuit issued a significant decision in Kerwin v. Trinity Health Grand Haven Hospital, clarifying the standard for obtaining injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA”) in failure-to-bargain cases. In a split 2-1 decision, the court dissolved a previously issued injunction requiring the hospital to recognize and bargain with a union, holding that the National Labor Relations Board (“NLRB”) must present concrete, specific evidence of “certain and immediate” irreparable harm, rather than relying on inferences.
The ruling marks the Sixth Circuit’s first major application of the U.S. Supreme Court’s directive in McKinney, 602 U.S. 339 (2024), and creates a meaningful circuit split with the Second, Fourth, and Ninth Circuits on how courts should evaluate irreparable harm in refusal-to-bargain cases. For employers navigating union campaigns and unfair labor practice proceedings, the ruling is both a practical shield and a strategic data point.
Background
The dispute arose from a union ouster at Trinity Health Grand Haven Hospital in Michigan (“Trinity”). In 2023, Trinity withdrew recognition from the Service Employees International Union (“SEIU”), claiming it had received a worker disaffection petition demonstrating that a majority of its employees no longer desired union representation. However, the following day, an election indicated that employees still supported the union. An NLRB Administrative Law Judge subsequently concluded that the hospital’s withdrawal of recognition and refusal to bargain violated Sections 8(a)(1) and 8(a)(5) of the NLRA.
While the underlying administrative case remains pending before the Board, the NLRB’s regional director sought interim relief under Section 10(j), asking a federal district court to order Trinity to resume bargaining during the pendency of the proceedings. The district court granted that request, finding both a likelihood of success on the merits and irreparable harm absent an injunction. Trinity appealed.
The Sixth Circuit’s Holding
The Sixth Circuit reversed, holding that the NLRB failed to meet its burden of demonstrating irreparable harm—a necessary prerequisite for injunctive relief.
Importantly, the court emphasized that:
- Injunctions under Section 10(j) are an extraordinary remedy that should be issued sparingly.
- Courts may not infer irreparable harm solely from an employer’s refusal to bargain.
The NLRB must present specific, independent factual evidence showing that harm is “certain and immediate.”
In rejecting the NLRB’s position, the majority characterized the agency’s evidence as insufficient. It pointed to generalized statements about employee “frustration and fear” and declining union meeting attendance, finding these too speculative to establish the requisite harm. The court emphasized that such evidence amounted to “generic assertions” that could apply in virtually any refusal-to-bargain case, and thus could not satisfy the particularized showing required under traditional equitable principles. The court also declined to assume that employees are necessarily worse off without union representation, noting that employers may offer comparable or superior benefits independently.
Notably, the panel agreed that the NLRB is likely to prevail on the merits of the underlying unfair labor practice claim. However, the court underscored that likely success alone does not justify injunctive relief absent a concrete showing of irreparable harm.
A Growing Circuit Split
The decision places the Sixth Circuit at odds with other appellate courts (particularly the Second, Fourth, and Ninth Circuits) on how to evaluate irreparable harm in failure-to-bargain cases.
While all circuits agree that irreparable harm cannot be presumed automatically following McKinney, they diverge on whether courts may draw reasonable inferences from the totality of the circumstances:
- The Sixth Circuit now requires specific, affirmative evidence of harm and rejects reliance on inference alone.
- Other circuits have permitted limited, fact-based inferences regarding the impact of bargaining disruptions on employees and the Board’s remedial authority.
Judge Danny J. Boggs dissented, arguing that the majority’s approach imposes an evidentiary standard that is both unworkable and inconsistent with the more flexible, inference-based framework adopted by peer circuits. He emphasized that district courts should retain discretion to draw reasonable conclusions from the factual record, particularly given the inherently prospective nature of irreparable harm analysis, rather than being confined to direct evidence of harm that may be difficult to quantify in the labor context.
Key Takeaways for Employers
- Heightened Evidentiary Standard in the Sixth Circuit. Employers operating within the Sixth Circuit (i.e., Kentucky, Michigan, Ohio, and Tennessee) should expect a more demanding standard for Section 10(j) injunctions. The NLRB must now present concrete, case-specific evidence of imminent harm, making it more difficult to secure interim bargaining orders.
- Refusal to Bargain Alone Is Not Enough. The decision makes clear that an alleged failure to bargain, even if unlawful, does not automatically justify injunctive relief. Courts will require evidence demonstrating actual consequences, such as loss of union support, erosion of bargaining power, or impairment of the Board’s remedial authority.
- Likelihood of Success Is Insufficient Without Harm. Even where the NLRB is likely to prevail on the merits, injunctive relief will not issue without a separate, robust showing of irreparable harm.
- Strategic Implications for Litigation. The ruling provides employers with a stronger basis to oppose Section 10(j) petitions by focusing on evidentiary gaps in the NLRB’s harm analysis. Employers may also consider developing factual records demonstrating stability in workforce conditions or continued employee support to counter claims of harm.
- Potential for Supreme Court Review. Given the emerging circuit split, the standard for irreparable harm in Section 10(j) cases may ultimately require resolution by the Supreme Court. Employers should monitor developments closely, as the governing framework could continue to evolve.
Bottom Line
The Sixth Circuit’s decision signals a more restrained approach to Section 10(j) injunctions in refusal-to-bargain cases, requiring the NLRB to move beyond generalized assertions and provide concrete proof of immediate harm. While the underlying unfair labor practice claims may still succeed on the merits, the path to interim injunctive relief has narrowed considerably within the Sixth Circuit. For employers elsewhere, the resulting circuit split suggests that this issue may be headed toward further appellate—and potentially Supreme Court—resolution. Employers should work closely with counsel to monitor these developments and assess how the evolving legal landscape may affect their labor relations strategies.