The anti-government zealot Grover Norquist once said his goal was to shrink the government to the point “where we can drown it in the bathtub.” In recent years, right-wing judges have applied that same approach to the National Labor Relations Act (NLRA). Most recently, in Kerwin v. Trinity Health Grand Haven Hospital, two Trump judges in the Sixth Circuit, which covers Michigan, Ohio, Tennessee, and Kentucky, have drastically limited the ability of the National Labor Relations Board to obtain preliminary injunctions that undo illegal employer acts while litigation plays out. This latest blow moves the NLRA one step further down the path of complete irrelevance.

When Donald Trump took office in January 2025, he fired Gwynne Wilcox, one of President Biden’s appointees to the NLRB, and for almost a year, the Board lacked a quorum and could not issue decisions. Now, two Trump appointees have taken office, and everything looks like business as usual, except that Board Members can be fired if they rule against any of the President’s cronies, or perhaps if Fox News offers negative commentary about any of their decisions.

Even in the best of times, it typically takes at least four years from the time a charge is filed at the NLRB until there is an enforceable order compelling an offending employer to take action to remedy its illegal act. Congress authorized the NLRB to seek preliminary injunctions in recognition of the fact that an employer can often accomplish its illegal objective while a case winds its way through a hearing and two levels of appeals. To obtain a preliminary injunction, an NLRB Regional Director must show that without an injunction there will likely be an irreparable injury. The Ninth Circuit has explained that there are two reasons why there is almost always an irreparable injury when an employer fails to bargain in good faith. First, an employer’s refusal to bargain discredits the union in the eyes of employees, placing the union in a weaker position when bargaining eventually resumes. In addition, under longstanding Board law, workers are not able to obtain compensation for “the economic benefits that might have been obtained had the employer bargained in good faith.” And it is well-established that irreparable harm exists when an injury will not be fully compensated by money damages.

Thus, when Trinity Health Grand Haven Hospital illegally withdrew recognition from its workers’ union while awaiting the results of a decertification election, and refused to change its position even after the Board announced that the workers had voted 89 to 66 in favor of continued representation, the case cried out for a preliminary injunction. The district court agreed, and ordered Trinity to recognize the union and resume bargaining while the litigation proceeded before the Board. But, then the case went to the Sixth Circuit where two Trump judges refused to draw any inference regarding the likely impact of allowing the employer’s withdrawal of recognition to go unremedied for four years. Instead, they held that in order to obtain a preliminary injunction, the NLRB must introduce evidence showing that “the union will be unable to negotiate effectively by the time the Board issues a final order.” This requirement creates a trap for both the union and the NLRB. When an employer illegally withdraws recognition, the union’s message to the workers should be, “Don’t worry. This is flagrantly illegal, and the NLRB will be able to obtain a preliminary injunction to bring the employer back to the bargaining table.” But, if workers heed that message, the NLRB will be unable to show the court that the employer’s illegal act will keep eroding union support. On the other hand, if the Board moves so slowly that workers actually get discouraged, then under the Sixth Circuit’s approach, a court would find that the damage has already been done, so no purpose would be served by granting the injunction.

The Sixth Circuit also rejected the argument that the deprivation of the workers’ collective bargaining rights for several years would cause them irreparable harm. Even though Congress made a finding when it enacted the NLRA that depriving workers of the opportunity to collectively bargain depresses wage rates, the two Trump judges suggested that Trinity might “offer a better or different combination of perks to forestall union intervention, leaving workers at least as well off as with a union.” These judges are so ideologically hostile to unions that they apparently haven’t stopped to think about how irrational it would be for an employer to mount an illegal campaign against unionization just for the privilege of being able to pay its workers higher wages and benefits than they would get with the union. The NLRB’s lawyer also pointed out that collective bargaining often yields non-monetary benefits such as improved safety and health conditions or a grievance and arbitration procedure. The court held that these unquantifiable losses can’t justify a preliminary injunction because then the NLRB “would be entitled to an injunction anytime collective bargaining is disrupted in any way.” But, courts often make these kinds of categorical determinations. For instance, the Fifth Circuit has held that an employer facing a hearing before an NLRB Administrative Law Judge automatically suffers irreparable harm if the court does not enjoin the hearing.  And, the Sixth Circuit has held that a worker’s breach of a non-compete agreement causes irreparable harm to their former employer because the resulting damages are difficult to calculate. Similarly, the Supreme Court has held that deprivation of First Amendment freedoms causes irreparable harm.  This last line of cases is significant because the NLRA explicitly states that it is designed to protect one of those First Amendment freedoms, “the exercise by workers of full freedom of association.”

In the landmark case Eastex, Inc. v NLRB, workers attempted to distribute a leaflet at their workplace urging their co-workers to register to vote before the 1974 midterm elections. Management prohibited the workers from distributing the leaflet, and the workers’ union filed a charge at the NLRB against the employer. In 1978, the Supreme Court issued a decision holding that the employer violated the workers’ rights. While the opinion established an important precedent, it came four years after the deadline to register for the 1974 elections. The delays in the Board’s enforcement process are just another tool for management to use to defeat worker organizing. While the NLRB has always been reluctant to go to court to seek preliminary injunctions, in past years, especially in Democratic administrations, there was always a chance that a union could convince the NLRB General Counsel to seek a preliminary injunction. So, when employers fired union activists during an organizing drive, or when a potential successor employer refused to hire union members, a preliminary injunction might be obtained to stop the employer in its tracks. And, I have no doubt that in past years at least some management lawyers have discouraged their clients from committing illegal acts by pointing out the possibility that the NLRB might seek a preliminary injunction. Now, at least in the Sixth Circuit, lawbreaking employers will no longer fear the threat of a preliminary injunction. And for workers, justice delayed will be justice denied.