Partisan Lines Emerge as Circuit Courts Tackle NLRB’s Power

Federal appeals courts are assessing the viability of one of the NLRB’s most effective tools to protect workers’ rights in the aftermath of a US Supreme Court decision that dialed back the agency’s power to obtain court injunctions against employers.

The National Labor Relations Board will have a harder time winning injunctions in Ohio, Michigan, Tennessee, and Kentucky because of a sweeping decision from the US Court of Appeals for the Sixth Circuit earlier this month.

But two other circuit courts have backed the agency, which is set to argue Tuesday at the Seventh Circuit in its bid to obtain a court order requiring a staffing company to recognize and bargain with a union. The case could decide how courts weigh NLRB injunction requests in Illinois, Indiana, and Wisconsin.

The early outcomes suggest appeals courts will diverge on NLRB injunction requests on partisan lines as they have on reviewing board rulings, with the agency facing more skepticism in court with a higher share of Republican-appointed judges.

The Sixth Circuit’s ruling showed how bad it can get for the agency, labor law scholars said.

“The decision is part of an effort to really diminish the power of the NLRB,” said Michael Green, a law professor and director of Texas A&M University’s Workplace Law Program. “Other courts probably could follow, depending on the makeup of the three-judge panel that gets the case.”

Injunction Power

Federal labor law provides the NLRB limited remedies, but it does permit the agency to go directly to federal court for temporary orders to prevent situations when the board’s eventual decision will come too late to fix the harm caused by the violation.

The agency requests 10(j) injunctions, named after a section of the National Labor Relations Act, while the underlying administrative cases are pending. NLRB regional directors must get the board’s approval to go to court.

The agency made frequent use of its authority to seek those injunctions while pressing allegations that Starbucks Corp. violated federal labor law in its attempts to resist unionization. The board authorized a dozen 10(j) requests against the coffee chain during a 19-month stretch in 2022 and 2023, making up nearly half of all petitions it cleared in that period.

But the NLRB’s courtroom campaign against Starbucks was costly. The company vigorously contested the board, pioneering an aggressive discovery strategy that sparked disputes and delays as it fought for evidence not usually available in administrative proceedings.

The company’s opposition culminated in the agency’s 2024 defeat in Starbucks v. McKinney.

High Court Ruling

In McKinney, the justices settled a circuit split over the legal test for 10(j) injunctions, choosing the traditional four-factor test from Winter v. Natural Resources Defense Council over one of the two-part tests that some appeals courts used.

The high court also rejected the NLRB’s argument that the NLRA directs judges to apply a more lenient standard to the agency’s petitions than they would for preliminary injunction requests in private litigation. That opens the process up to more discovery fights.

Thus far, the NLRB’s success rate at the district court level remained consistent despite its loss in McKinney.

District courts have issued injunctions in 77% of their nine rulings on agency petitions since the Supreme Court’s ruling nearly two years ago. The agency prevailed in 78% of rulings on the petitions that NLRB authorized between 2013 and 2024, according to a Bloomberg Law analysis.

But six of those nine cases were decided by Democratic-appointed judges, and none were decide by Trump appointees.

And the agency’s odds in some district courts will likely change as circuit courts weigh in.

‘Inkblot Test’

Federal appeals courts have split on how to read the Supreme Court’s ruling on 10(j) injunctions.

“The McKinney decision is a little like an inkblot test,” said Matthew Bodie, a University of Minnesota labor law professor and former NLRB attorney. “You see in it what you want to see.”

Three appeals courts ruled on 10(j) requests since McKinney. But one of those courts, the Ninth Circuit, didn’t cite the new high court precedent and applied the same four-part test it previously used in an unpublished decision affirming the grant of an injunction.

The variance on the impact of McKinney is stark in rulings from the Second Circuit and the Sixth Circuit, both of which were moving from two-part to four-part tests.

The Second Circuit’s decision reversed a Trump-appointed judge’s order denying the agency’s injunction petition, and required a parking management company to immediately hire unionized valet attendants and bargain with their union.

The three-judge panel—composed of three Democratic appointees—didn’t change its analysis for the agency to clear two key hurdles: showing irreparable harm and its likelihood of success on the merits in the underlying administrative case.

High Bars

The Sixth Circuit’s divided ruling reversed a George W. Bush-appointed judge’s decision granting an injunction against a Michigan hospital that withdrew recognition from a union. The two Trump appointees in the majority said the decision was their “first occasion to reconstruct” the circuit’s 10(j) case law since McKinney.

The court raised the bar for both irreparable harm and likelihood of success on the merits, creating a strong disincentive for the NLRB to seek an injunction in the Sixth Circuit, labor law scholars said.

The two-judge majority seemed to question the validity of any NLRB case law, going as far as to doubt precedent on the value of elections that the Supreme Court endorsed in a 1954 decision, said Anne Lofaso, a University of Cincinnati law professor and former NLRB appellate lawyer.

The Second and Sixth circuits also took differing views on whether delay in filing an injunction petition weakened the NLRB’s case.

The issue of agency delay was central to the George W. Bush appointee’s decision denying an injunction that the NLRB will challenge at the Seventh Circuit.

The cases are Poor v. Parking Sys. Plus, Inc., 2d Cir., No. 24-3324, 12/19/25, Kerwin v. THGH Hospital, 6th Cir., No. 24-01975, 5/1/26, Hamada v. Laborforce, LLC, 7th Cir., No. 25-03110, oral argument scheduled 5/12/26 and Owens v. SEIU-United Healthcare Workers West, 9th Cir., No. 25-79, 9/4/25.