Andrew Strom on the Sixth Circuit Ruling Against NLRB Injunctions

Andrew Strom, union attorney and adjunct professor at Brooklyn Law School, joined the America's Work Force Union Podcast to break down a recent 2-1 Sixth Circuit U.S. Court of Appeals ruling that further weakens the National Labor Relations Board's ability to seek preliminary injunctions against employers who act illegally against workers and unions.

The case, involving a Michigan hospital that illegally withdrew union recognition while workers voted 89-to-66 to keep it, produced a decision so extreme that the dissent came from a Reagan appointee. Strom explained the four-year timeline that makes the National Labor Relations Act (NLRA) nearly toothless without injunction authority, traced the act’s history from the beginning in 1935 through the Taft-Hartley Act and made a pointed argument about why the judges issuing these rulings lack the lived experience to understand what their decisions cost working people.

• The NLRA's enforcement process takes a minimum of four years from an illegal employer act to an enforceable order — administrative law judge ruling, NLRB appeal, then federal court of appeals — during which time employers face no obligation to undo their illegal conduct; Section 10J preliminary injunctions, added in 1947, exist specifically to reverse illegal employer actions while litigation plays out, but the Sixth Circuit's ruling makes obtaining them significantly harder by requiring workers to clear a higher bar than employers face in identical circumstances involving non-compete violations.
• In the recent Sixth Circuit case, Trinity Health Grand Haven Hospital illegally withdrew union recognition while a decertification election was pending. Workers voted 89 to 66 to maintain representation, yet the two Trump-appointed judges still denied the preliminary injunction. The dissent — written by a Reagan appointee — found the majority had gone too far, a signal Strom described as a reliable indicator of how extreme the ruling actually is.
• Strom argued that the ideological hostility to unions among Trump-appointed federal judges reflects both explicit anti-union ideology and implicit bias rooted in class background. He cited Justice Sonia Sotomayor's pointed observation about Justice Kavanaugh's inability to understand the financial impact of a four-hour wage loss on a worker paid by the hour as emblematic of a federal judiciary that consistently identifies with employers rather than employees.

Death by a Thousand Cuts

Andrew Strom has been practicing union law in New York for decades and writing for years about labor law at onlabor.org, a service of Harvard Law School. He discussed his most recent piece, titled “The National Labor Relations Act suffers another blow.” The blow in question came from the Sixth Circuit Court of Appeals, which covers Ohio, Michigan, Tennessee and Kentucky — a jurisdiction whose recent judicial appointments have made it one of the most consequential battlegrounds for labor law in the country.

Why the NLRA Has Almost No Teeth Without Injunctions

To understand what the Sixth Circuit did, Strom said, you first have to understand how slow the NLRA's enforcement machinery actually is. When an employer does something illegal — fires a worker for organizing, withdraws union recognition or retaliates against a shop steward — the process to obtain an enforceable order runs through three stages. First, a trial before an administrative law judge, whose ruling the employer can simply ignore. Second, an appeal to the five-member NLRB in Washington, which typically takes about two years to resolve. Third, a federal court of appeals, which often takes another two years. From start to finish, Strom said, it is at least 4 years before an employer is legally required to undo whatever illegal act they committed in the first place.

Congress recognized this problem in 1947 when it added Section 10J to the law. That provision allows the NLRB to go directly to federal court and seek a preliminary injunction — an order requiring the employer to reverse the illegal action while the full litigation plays out. The purpose is to change the default. Without a preliminary injunction, the illegal act continues for four years while the case crawls toward resolution. With one, the illegal act is undone while the case resolves, and the employer faces the consequences when a final order arrives.

Strom noted that the NLRB seeks these injunctions sparingly — a few dozen per year out of tens of thousands of charges filed. They are reserved for situations where the harm of waiting four years is genuinely irreversible.

The Trinity Health Case

The case at the center of Strom's blog post involves Trinity Health Grand Haven Hospital in Michigan. While workers were awaiting the results of a decertification election — a vote on whether to keep their union — Trinity illegally withdrew recognition from the union entirely, without waiting for the vote. The results came in shortly after: 89 workers voted to maintain union representation, 66 voted to leave. The workers made their choice, but Trinity had already acted as if that choice did not matter.

The NLRB sought a preliminary injunction from the Sixth Circuit to restore union recognition while the broader case was litigated. Two Trump appointees, Judges Riedler and Bush, denied it. Their reasoning, Strom said, required twisting the established legal framework beyond recognition. They acknowledged that the employer's conduct looked bad. They nonetheless concluded that workers could not demonstrate irreparable harm — the standard required for a preliminary injunction.

Strom laid out why that conclusion is indefensible. When a union is stripped from a workplace for four years, workers cannot simply pick up where they left off when it is restored. Turnover changes the workforce. Institutional memory of what the union meant fades. The culture of collective action that took years to build has to be rebuilt from scratch. Beyond that, workers are denied four years of collective bargaining — four years of lost wages, benefits and working conditions they could have negotiated. Congress explicitly found in 1935 that the inability to bargain collectively drives down wages and purchasing power. These judges, Strom said, could not bring themselves to acknowledge that foundational finding.

An Unequal Standard

When a worker violates a non-compete agreement with an employer, Strom said the same Sixth Circuit Court has held that the employer is automatically entitled to a preliminary injunction — because the harm of waiting cannot be quantified in money.

The logic, Strom said, is identical to that which should apply when an employer strips workers of their union. Yet the court applies an automatic standard for employers and an extraordinarily demanding standard for workers. Strom called it dishonest and said the dissent from a Reagan appointee — not a liberal, not a Democratic appointee — was itself a reliable signal of how far the majority had departed from settled law.

The Judges and the Class Gap

Strom closed by arguing why this pattern keeps appearing in decisions from Trump-appointed judges. Some of it, he said, is explicit ideology. But some of it is something harder to legislate: these judges have never been paid by the hour. They do not understand what it means to lose four hours of wages to a brief detention, or four years of collective bargaining to a prolonged illegal employer campaign.

Strom cited Justice Sonia Sotomayor's observation about Justice Kavanaugh as emblematic of a broader truth — that federal judges who have spent their careers in law firms, on boards, at elite institutions, and at country clubs are not well-positioned to understand the material realities of the workers whose rights they adjudicate. The employers in these cases, Strom noted, are people whom judges know. The workers are not.

The full blog post is available at onlabor.org. More on Andrew Strom's work is available through Brooklyn Law School.

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