NLRB Petitions 6th Circuit for Rehearing En Banc Regarding Injunction Standard

Section 10(j) of the National Labor Relations Act (NLRA) grants the National Labor Relations Board (NLRB) the authority to seek an injunction against employers in federal district courts to stop unfair labor practices while the case is being litigated before administrative law judges and the Board.

The Pre- and Post-Starbucks Framework
Prior to the Supreme Court’s ruling in Starbucks Corp. v. McKinney, 602 U.S. 339, 144 S. Ct. 1570 (2024), the standard for injunctive relief in the Sixth Circuit required the NLRB to establish that there was “reasonable cause to believe that unfair labor practice(s) had occurred” and that injunctive relief was “just and proper.”

Post-Starbucks, the Board must satisfy a four-factor test by making a “clear showing” that:

1. it is “likely to succeed on the merits,”

2. it “is likely to suffer an irreparable injury in the absence of preliminary relief,”

3. “the balance of equities tips in [its] favor,” and

4. “an injunction is in the public interest.” Id. at 1576.

The Sixth Circuit’s Decision and Its Implications
On Friday, May 1, 2026, the Sixth Circuit issued a panel decision in Kerwin v. Trinity Health Grand Haven Hospital, 174 F.4th 942 (6th Cir. 2026), vacating an injunction granted by the United States District Court for the Western District of Michigan.

In the underlying dispute, Trinity Health declared that it would no longer recognize the union responsible for representing its employees at Grand Haven Hospital. While administrative proceedings were pending before the NLRB, the Board’s Regional Director for Region 7 (Detroit) petitioned the district court for a preliminary injunction under § 10(j) of the NLRA. The district court granted that request and ordered Trinity Health to resume bargaining with the union. Trinity Health appealed to the Sixth Circuit. The Sixth Circuit’s panel decision reversing the district court and vacating its order granting the injunction was based upon the Sixth Circuit’s determination that the NLRB failed to demonstrate that irreparable harm will result without an injunction.

On Friday, June 12, 2026, the NLRB petitioned the Sixth Circuit for a rehearing en banc, arguing that the panel majority’s decision incorrectly determined that a district court cannot infer irreparable harm based on the nature of the violation before it. The petition also seeks to address the panel majority’s analysis of the petitioner’s purported delay in seeking injunctive relief, which the panel majority stated, at four months’ time, “undercuts any sense of urgency.” Id. at 959.

What Does This Mean for Employers?
Injunctive relief is a tool not often utilized by the NLRB. Significantly, the Board granted authority to seek injunctive relief in only 22 cases in 2024 and 2025 combined, resulting in the filing of 17 petitions during that same period. Nevertheless, it is a tool that can have significant ramifications for employers. In Kerwin v. Trinity Health Grand Haven Hospital, the employer was ordered by the district court to recognize the union and resume bargaining while the administrative matter remained pending. Such orders can be costly, both in time and resources, let alone financially.

For the near term, the Sixth Circuit’s panel decision in Kerwin v. Trinity Health Grand Haven Hospital gives employers a little breathing room when faced with a petition for an injunction and sets a seemingly higher bar for the Board to overcome when seeking injunctive relief within the Sixth Circuit’s jurisdiction. It remains to be seen, however, whether the NLRB’s latest petition will swing the pendulum back toward the Agency’s view of a more balanced approach to the question of whether injunctive relief should be granted in a particular matter where a party claims irreparable harm will ensue without a district court’s intervention.

Should you have questions regarding labor and employment matters, particularly issues arising under the National Labor Relations Act, please contact Gregory M. Gleine or another member of Frantz Ward’s Labor and Employment Group.