Kerwin v. Trinity Health Grand Haven Hospital: A Catch-22 for Unions and the NLRB
In Kerwin v. Trinity Health Grand Haven Hospital, the Sixth Circuit made it significantly harder for workers to get quick legal relief when their employer breaks labor laws. Trinity Health Grand Haven Hospital illegally stopped recognizing its workers’ union and kept refusing to bargain even after employees voted 89 to 66 to keep their union. Normally, when an employer does something illegal like this, the union will ask the NLRB General Counsel to seek a preliminary injunction from the court. When a preliminary injunction is granted, the court recognizes that the harm caused by the employer’s illegal activity cannot be permitted to continue as the matter makes its way through the NLRB and the court of appeals, often over the course of years. In this case, a lower court had granted that injunction, but two Trump appointed judges on the Sixth Circuit Court of Appeals overturned it.
The reason this ruling is so damaging is rooted in timing. Labor law cases can take four or more years to fully resolve. During that time, an employer who illegally undermines a union can do so much damage: eroding trust in the union, discouraging workers from participating in their right to organize, and preventing workers from obtaining better wages and working conditions. And by the time a final ruling comes, it’s too late to fix the damage. The appeals court ruled that to get a preliminary injunction, the NLRB must produce hard evidence proving the union will be unable to bargain effectively years down the road. This creates a nearly impossible catch-22: if workers stay hopeful and keep supporting their union, there’s no visible damage to point to; but if workers give up and the union weakens, the court may say it’s already too late for an injunction to help.
The broader impact of this decision is that employers in Michigan, Ohio, Tennessee, and Kentucky, the states covered by the Sixth Circuit, now have far less reason to fear quick legal consequences for breaking labor laws. The NLRB’s ability to act as a real deterrent has been further weakened.
For more information, please contact your labor law counsel.
By Isadora Stern, WRR Law Clerk