Section 10(j) Injunctions After Starbucks v. McKinney

Section 10(j) Petitions Under Ordinary Preliminary-Injunction Rules

The Supreme Court closed the era of specialized 10(j) tests: "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 statutory hook — the district court’s jurisdiction to grant "such temporary relief or restraining order as it deems just and proper" under 29 U.S.C. § 160(j) — "does not jettison the normal equitable rules; it simply invokes the discretion that courts have traditionally exercised when faced with requests for equitable relief." The discarded reasonable-cause standard "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 because "the views advanced in a §10(j) petition are preliminary and do not represent the Board’s formal position," "[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 uniform standard still delivers injunctions. Reversing a denial and remanding for entry of the requested injunction against a successor parking operator, Poor v. Parking Systems Plus, Inc., No. 24-3324-cv (2d Cir. Dec 19, 2025) first faulted the district court’s reasoning — "[o]rders containing only conclusory statements about the preliminary injunction factors are insufficient to satisfy Rule 52(a)" — then ran the Winter factors itself. On the merits, a court weighing a 10(j) petition "does not make a ‘predictive judgment about how it will rule on the merits itself. Instead, the court is predicting the future decision of the Board.’" On irreparable harm in a successorship fight, the question is "whether the employees’ collective bargaining rights may be undermined by the successor’s unfair labor practices and whether any further delay may impair or undermine such bargaining in the future" — the injury runs "not . . . to the specific employees" but to "the unionization process." And a five-and-a-half-month filing gap was not fatal, because the court has "reject[ed] the notion that the passage of time, alone, is sufficient to justify rejecting a § 10(j) petition" where there is "evidence of ongoing interest in organizing that was being hindered by absence of discharged employees."

The Sixth Circuit — the court McKinney reversed — has made irreparable harm the factor where petitions die. Vacating a granted injunction over a hospital’s withdrawal of union recognition, Elizabeth Kerwin v. Trinity Health Grand Haven Hosp., No. 24-1975 (6th Cir. May 1, 2026) defined the injury as "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 from the violation itself: "like everyone else, the Director must clearly demonstrate ‘certain and immediate’ harm; ‘speculative or theoretical’ explanations will not do." Granting the remedy "based on nothing but ‘speculative and categorical’ statements about supposedly ‘inherent’ harm conflicts with the rare nature in which we award such relief." Timing cut the same way — "[a]n unreasonable delay in filing for injunctive relief will weigh against a finding of irreparable harm" — and the merits inquiry now looks past the agency, reading "likelihood of success" to "refer not only to the Director’s chances of victory before the Board, but also the odds that this Court would grant a petition to enforce the Board’s order."

The grant–denial line two years in is evidentiary, not doctrinal. Every court recites the same four Winter factors; outcomes turn on whether the Board arrives with a record — an organizing drive losing steam, bargaining positions already shifting, discharged supporters whose absence is measurably chilling the unit — or with the bare assertion that refusal-to-bargain harm is inherent and irreparable. Delay is the second sorting fact: courts start the clock at the administrative complaint, and an unexplained gap of months invites the inference that nothing urgent is at stake. For the regional office, the playbook is affidavits and speed; for employers, the strongest defenses are the Board’s own presumptions and its own calendar.