Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—E.D. Ky.: Temporary injunction against employer for ULPs denied where NLRB failed to show irreparable harm, (May 21, 2026)

By Nicholas Kaster, J.D.

The court found that the delay in filing the petition (nearly five months from the decision of the administrative law judge) undercut “the sense of urgency implied by the Director’s evidence” and suggested that there was, in fact, no irreparable injury.

A federal district court in Kentucky has denied a petition for a preliminary injunction brought by the National Labor Relations Board (NLRB) against Hearthside Food Solutions, LLC, arising from allegations that the company engaged in unfair labor practices in response to a union organizing campaign. The court found that the Board failed to show that irreparable harm would exist absent an injunction. The court would not infer the existence of irreparable harm from the evidence provided by the Board’s Regional Director, which consisted almost entirely of hearsay testimony from union members. In addition to the evidentiary deficiencies, the court found that Director’s delay in seeking the injunction was fatal to his case (Taylor v. Hearthside Food Solutions, LLC, No. 6:26-cv-00106-GFVT (E.D. Ky. May 18, 2026)).

The case arose as a result of an allegedly unlawful response to a union organizing campaign by Hearthside Food Solutions in 2024. A hearing before an Administrative Law Judge (ALJ) was held on June 2, 2025. The ALJ issued a Decision and Recommended Order on September 17, 2025.

ALJ found multiple violations. In that decision, the ALJ found that Hearthside violated Section 8(a)(1) and/or Section 8(a)(3) of the National Labor Relations Act by, among other things: engaging in surveillance and otherwise interfering with employees’ union activity; interrogating employees about their union activities and sympathies; soliciting grievances and impliedly promising to remedy them if employees refrained from selecting a union, including Local 57 of the Bakery Confectionary Tobacco Workers and Grain Millers (BCTGM); soliciting grievances and impliedly promising to remedy them if employees refrained from selecting a union; calling the police in response to legal union activity at its London, Kentucky facility; more strictly enforcing its cellphone policy, break policy, and/or other rules and policies after learning of union activity by terminating and disciplining employees; and impliedly stating that it would reinstate its 401K match only if employees rejected union representation.

On March 9, 2026, an NLRB Regional Director petitioned the court for a temporary injunction against the employer, pursuant to Section 10(j) of the Act. The Regional Director (RD) moved to adjudicate based on the administrative record and affidavit evidence obviating the need for a hearing before entering injunctive relief.

Test for granting preliminary injunction. In assessing whether the Board is entitled to a preliminary injunction under § 10(j), district courts apply a four-part test. Under this test, articulated by the U.S. Supreme Court in Winter v. Nat. Res. Def. Council (555 U.S. 7) (2008)), the Regional Director must establish that (1) he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. In 2024, The Supreme Court held that district courts must apply this four-factor test when evaluating NLRB requests for preliminary injunctions under 10(j) (Starbucks Corp. v. McKinney, 602 U.S.—(2024)).

Success on the merits. The first factor requires the plaintiff to make a clear showing that he is likely to succeed on the merits. The court found that the RD was likely to succeed on the merits. The RD produced sufficient evidence that the employer undertook unfair labor actions in response to the unionization effort at their London facility. The ALJ’s twelve conclusions of law illustrated a wide-reaching response to the union effort, rather than a handful of acts, the court said. And while the ALJ’s decision does not bind the court in any way, the court said that it serves “as a useful benchmark for gauging the Regional Director’s likelihood of success on the merits.”

Irreparable harm. The second factor requires that a plaintiff make a clear showing that he is likely to suffer irreparable harm in the absence of preliminary relief. The RD must demonstrate irreparable harm by: (1) specifically identifying the injury threatened by the alleged unfair labor practice, (2) establishing that the injury is likely to result absent an injunction, and (3) explaining why the Board’s § 10(c) remedial powers could not fix the injury after the fact, doing so through “more than mere speculation.”

Here, the RD argued that any effort by the union or employees to revive the organizing campaign “will be futile or doomed to failure.” The RD asked the court to “infer the existence of irreparable harm” from the existence of the discharges, the statements of pro-union individuals, and the affidavits of a union employee. Some of the statements offered in support of this element constituted hearsay. The court, of course, could consider “the entire record, including affidavits and other hearsay evidence” at this stage. But the court affords these statements less weight, particularly when offered for the purpose of drawing an inference.

Hearsay. The court would not infer the existence of irreparable harm from the evidence provided by the RD. The employer argued, convincingly, that the RD relied almost totally on the statements of a union employee, and one of the lead union supporters at the plant. Both statements relied almost entirely on hearsay. The union employee’s affidavit, in particular, vaguely referenced discussions with “new employees” who were “afraid to get involved” with the union. Hazy statements like these do not sufficiently demonstrate irreparably declining union support, said the court, and ultimately the RD’s proffered evidence “fails to answer... whether union support will not just decline, but in fact decline to the extent that the union will be unable to” petition for a new election “by the time the board issues a final order.” The RD did not describe how the injury was either “certain” or “immediate,” and instead asked the court to infer harm from certain facts. This the court refused to do.

Delay. In addition to the RD’s evidentiary deficiencies, said the court, his “delay in seeking an injunction seals the deal.” The parties disputed the date by which to measure the RD’s filing delay. The RD argued that the court should consider only the time from the ALJ’s decision, September 17, 2025, until the filing of the petition on March 9, 2026, representing a period of 173 days, or nearly five months. But the employer noted that the statute authorized the RD to file the injunction as early as February 28, 2025, the date that the Board issued the consolidated complaint, which constitutes 374 days, just over a full year.

The court was not unsympathetic to the RD’s argument in favor of waiting to file the petition until after the ALJ reached a decision. The RD noted that without the ALJ decision the administrative record would be incomplete, hindering the district court’s review of any § 10(j) petition. Perhaps so, said the court. But even if the RD was correct on that point, the court asked, why did he wait five months to file the petition? Why not file for a § 10(j) petition within days or weeks after the ALJ’s decision? The RD made no attempt to explain the reason for the delay even when calculating the delay on his own terms. Whether by one year or five months, the court concluded, the delay in this case “undercuts the sense of urgency implied by the Director’s evidence and suggests that there is, in fact, no irreparable injury.”

An injunction would not preserve the status quo in this case, the court said. Absent an injunction, the parties will continue to wait on the result of the Board’s review of the ALJ order. Because the RD failed to show that any irreparable harm would occur in the meantime, the court was satisfied knowing that the relative position of all interested parties remains the same.

Because the court found that the Regional Director could not show that irreparable harm would exist absent an injunction, the court did not consider the remaining two factors. Accordingly, the RD’s petition for a temporary injunction was denied.

The case is No. 6:26-cv-00106-GFVT.

Judge: Tatenhove, G.

Attorneys: Austin Jordan Wishart, National Labor Relations Board, for Eric A. Taylor. Brice C. Smallwood (FBT Gibbons) for Hearthside Food Solutions, LLC d/b/a Maker's Pride, LLC.

Companies: Hearthside Food Solutions, LLC; Maker's Pride, LLC

Cases: UnfairLaborPractices Labor Procedure RemediesDamages EvidenceDiscovery KentuckyNews