The Sixth Circuit has dissolved an NLRB-obtained injunction requiring an employer to continue bargaining with a union, signaling that appellate courts will impose stricter standards for these emergency orders. In Kerwin v. Trinity Health Grand Haven Hospital, the court found that the NLRB had not adequately demonstrated the likelihood of success necessary to justify an injunction while unfair labor practice charges remained pending. The decision makes it harder for unions and the NLRB to obtain rapid court intervention during bargaining disputes.
Section 10(j) of the National Labor Relations Act permits the NLRB to seek preliminary injunctions requiring employers to maintain the status quo during unfair labor practice proceedings. These injunctions typically require an employer to continue bargaining with a union even when disputes exist about whether bargaining is mandatory.
The Sixth Circuit’s Ruling
The Sixth Circuit’s decision tightens the standard by requiring the NLRB to prove not just that irreparable harm might occur, but that success on the merits of the underlying unfair labor practice case is likely. This higher burden makes preliminary relief harder to obtain.
Construction companies sometimes face NLRB demands to bargain while disputes exist about union’s legitimacy or appropriate bargaining subjects. Under the Sixth Circuit’s approach, employers have better opportunities to resist such demands and avoid being compelled to bargain during the litigation process.
NLRB Injunction Authority Under Pressure
However, the decision also creates risk: if the NLRB ultimately prevails on the unfair labor practice charge, the employer may face additional liability for the period when it refused to bargain. Contractors should understand that avoiding an injunction does not eliminate underlying legal exposure.
Contractors facing injunction requests should:
• Understand that injunctions are now harder for the NLRB to obtain
• Document reasons for bargaining positions or refusals
• Preserve all communications with union representatives
• Consult counsel immediately upon receiving NLRB demands
• Recognize that avoiding injunctions doesn’t eliminate ultimate liability
• Consider settlement value carefully in light of litigation exposure
Implications for Labor Disputes
The Sixth Circuit’s ruling improves employers’ negotiating position but does not eliminate legal risk.
Other courts may follow the Sixth Circuit’s approach, making NLRB injunctions consistently harder to obtain across the country. However, different circuits might apply different standards. Employers should monitor appellate developments closely. For construction contractors facing union disputes, this ruling provides some tactical advantage but should not be viewed as eliminating the need for good-faith bargaining.
For further details, please contact the lawyers at Tobia & Lovelace Esq., LLC at 201-638-0990.