Section 10(j) Injunctions After Starbucks v. McKinney
How district courts apply the traditional four-factor Winter test to NLRB section 10(j) petitions after Starbucks Corp. v. McKinney — the death of the reasonable-cause standard, the new irreparable-harm fights, and grant and denial outcomes on both sides.
Section 10(j) Injunctions Under the Four-Factor Winter Test
McKinney unified the standard: "When considering the NLRB’s request for a preliminary injunction under §10(j), district courts must apply the traditional four factors articulated in Winter v. Natural Resources Defense Council, Inc." The statute’s "just and proper" language in 29 U.S.C. § 160(j) "does not jettison the normal equitable rules; it simply invokes the discretion that courts have traditionally exercised." The old two-part test was not fine-tuning but a thumb on the scale — it "substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities," and "[d]eference to what is ‘nothing more than an agency’s convenient litigating position’ is ‘entirely inappropriate.’" Starbucks Corp. v. McKinney, 602 U.S. 339 (2024).
The Sixth Circuit has since made irreparable harm the Board’s hardest factor. Reversing a granted injunction, Elizabeth Kerwin v. Trinity Health Grand Haven Hosp., No. 24-1975 (6th Cir. May 1, 2026) defined the inquiry as whether the injury is "harm that the Board, entrusted with its own enforcement powers, would otherwise be powerless to fix" through back pay, reinstatement, or a bargaining order — and refused to presume it: "the Director must clearly demonstrate ‘certain and immediate’ harm; ‘speculative or theoretical’ explanations will not do." Categorical claims of "inherent" harm from a refusal to bargain fail, and delay is damning: "[a]n unreasonable delay in filing for injunctive relief will weigh against a finding of irreparable harm." The court also read likelihood of success to include "the odds that this Court would grant a petition to enforce the Board’s order," reviewing the Board’s legal theories de novo after Loper Bright.
On the grant side, Christy J Kwon v. American Automobile Association of Northern California, Nevada & Utah, No. 4:24-cv-07978 (N.D. Cal. Jan 23, 2025) applied the Winter factors "without the aid of presumptions or a ‘thumb on the scale’" and still granted targeted relief against a unilateral cut to renewal commissions, finding the employer’s declared impasse doubtful — "[i]n order to find an impasse, both parties must believe they are at the end of their rope" — and crediting the Ninth Circuit’s view that "irreparable injury is established if a likely unfair labor practice is shown along with a present or impending deleterious effect . . . that would likely not be cured by later relief," particularly for wage changes, where "each paycheck reminds [employees] of the likely irrelevance of the union." But the Board’s 28-month-old allegations got nothing: delay "is significant if the harm has occurred and the parties cannot be returned to the status quo."
The post-McKinney pattern is consistent: 10(j) petitions built on fresh, well-documented harm to an active bargaining relationship still succeed, and narrow injunctions preserving the status quo — reinstating a commission structure, restoring discharged organizers — remain available. Petitions that rest on the nature of the violation, arrive months after the complaint, or ask the court to defer to the Board’s litigating position now fail, and appellate courts are enforcing that line. For employers and the Board alike, the timeline from charge to petition has become the single most predictive fact in the case.