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.

In its decision, the United States Circuit Court of Appeals for the Sixth Circuit (Sixth Circuit) dissolved a 10(j) injunction against an employer, holding that federal courts should not issue injunctions in failure-to-bargain cases unless concrete evidence shows that the employer’s rebuff of the union will cause irreparable harm. That is, rather than allowing the NLRB to presume irreparable harm only from the employer’s refusal to bargain, the Sixth Circuit’s decision requires a more robust inquiry, as is typical in most other injunction cases.

How Did Starbucks Corp. v. McKinney Change the 10(j) Injunction Standard?

The Sixth Circuit decision came just two years after the Supreme Court directed federal courts to change their approaches to issuing injunctions under Section 10(j) of the NLRA in Starbucks.

As background, 10(j) injunctions (named after the section of the NLRA empowering the NLRB to seek them) are temporary orders sought by the NLRB in federal court, while the underlying ULP case is pending in the NLRB’s administrative process. Section 10(j) injunctions are intended to halt ongoing harm caused by the alleged unfair employer practices and avoid “irreparable harm” – that is, avoid situations where the NLRB’s eventual decision in an underlying ULP case comes too late to provide meaningful relief for the alleged violations of the NLRA. While the NLRB seeking such injunctions is not very common, its burden to obtain such injunctions was relatively light.

What Did the Sixth Circuit Hold About Irreparable Harm in Failure-to-Bargain Cases?

In the case at hand, a union accused an employer of unlawfully refusing to recognize and bargain with the union. While that case was pending before an NLRB administrative law judge (ALJ), the NLRB sought an injunction in a separate lawsuit in federal court compelling the employer to recognize and resume bargaining with the union. One month after the ALJ ruled that the employer violated the NLRA, and while the underlying matter was on appeal, a federal district judge issued a 10(j) injunction, finding that workers would be harmed without an injunction because the workers would lose the benefits of collective bargaining, and NLRB prosecutors would be harmed because their ability to remedy unfair labor practices would be negatively impacted.

On appeal, the Sixth Circuit began by noting that this was its “first occasion to reconstruct” circuit precedent on 10(j) injunctions consistent with the Supreme Court’s Starbucks Corp. v. McKinney decision. The Sixth Circuit then held that 10(j) injunctions should be issued rarely, and only in situations where the NLRB presents specific evidence that “certain and immediate” irreparable harm would occur without one. Specifically, the Sixth Circuit noted that the NLRB must show the likelihood of irreparable harm just like any other litigant, meaning that the NLRB cannot rely on speculative or theoretical explanations. The Sixth Circuit went on to state that there can be no “special rules favoring the Board” because there is “no basis for putting a finger on the Board’s side of the scale.” Finding that the NLRB failed to show that irreparable harm would result without an injunction, the Sixth Circuit dissolved the 10(j) injunction.

Is There a Circuit Split on NLRB 10(j) Injunctions?

Notably, this decision puts the Sixth Circuit at odds with the Second, Fourth and Ninth Circuits, which have ruled differently on the question of whether and when it is appropriate to draw an inference of harm in failure-to-bargain cases. The Seventh Circuit will have an opportunity to weigh in soon too, as it recently heard arguments in a case on this very issue.

What Does This Mean for Employers Facing NLRB Injunction Requests?

While the burden on the NLRB when seeking a 10(j) injunction is now higher across the country, the success of the NLRB in seeking these injunctions is going to be very circuit (jurisdiction) dependent unless and until these splits are resolved by the Supreme Court. However, the Sixth Circuit may get the first opportunity to reconsider this issue as the NLRB just asked the full U.S. Court of Appeals for the Sixth Circuit to review the divided panel opinion.

If you have any questions about how this Sixth Circuit decision or the evolving Section 10(j) injunction standards may impact your business, please contact the authors or your regular firm contact.