Key Takeaways:

• The Sixth Circuit has held that the NLRB must present concrete evidence of “certain and immediate” irreparable harm to obtain a Section 10(j) injunction in failure-to-bargain cases—eliminating the prior practice of presuming harm from an employer’s refusal to bargain alone.
• This decision applies the Supreme Court’s framework from Starbucks Corp. v. McKinney, which requires federal courts to evaluate 10(j) injunction requests under the same traditional equitable standards applied to all other litigants, with no special deference to the NLRB.
• A circuit split now exists among the Second, Fourth, Sixth, and Ninth Circuits on whether courts may infer irreparable harm in refusal-to-bargain cases, meaning employers’ exposure to 10(j) injunctions remains jurisdiction-dependent until the issue is resolved—potentially by the Supreme Court or through the pending en banc review in the Sixth Circuit.

What Is a Section 10(j) Injunction Under the NLRA?          

For many years, the National Labor Relations Board’s (NLRB) ability to obtain injunctive relief under Section 10(j) of the National Labor Relations Act (NLRA) was close to unrestrained. This 10(j) injunctive power was a strong hammer in the NLRB’s arsenal to force an employer to take some action – reinstate a terminated employee, resume bargaining immediately – even before a hearing on the merits of the underlying unfair labor practice (ULP) case. That lack of restraint came to an end in a recent Supreme Court case known as Starbucks Corp. v. McKinney, and the Sixth Circuit even more recently applied Starbucks to dissolve an NLRB injunction in a refusal to bargain case.