Show The Harm: Sixth Circuit Narrows Path To NLRB Bargaining Injunctions, Creating Circuit Split

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