Wednesday, October 22, 2025
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Six Judges Decry Rehearing Denial Over NLRB ‘Power Grab’
Ninth Circuit Jurists Dissent From Order Denying En Banc Reconsideration in Case Greenlighting Authority of National Labor Board to Order Payment to Wronged Employees for ‘Foreseeable Pecuniary Harms’
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals yesterday denied a petition for en banc rehearing in a case in which a divided panel determined that the National Labor Relations Board did not abuse its discretion in ordering make-whole relief to Macy’s employees who were improperly locked out from returning work after a strike, drawing dissent from six judges who assert that the decision should have been reconsidered in view of “serious long-term implications.”
Senior Federal Circuit Judge Evan J. Wallach, sitting by designation, wrote the panel majority opinion, filed on January 21 and joined in by Circuit Judge Jacqueline H. Nguyen, in which the court found that substantial evidence supported the conclusion that the ongoing lockout—which began in December 2020—was not justified because employees were not clearly informed of the conditions that they needed to satisfy in order to be reinstated.
As to the National Labor Relations Board’s order requiring that the retail giant “shall also compensate the employees for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful lockout, including reasonable search-for-work and interim employment expenses,” Wallach wrote:
“The broad ‘grant of remedial power’ under the [National Labor Relations Act]…‘does not authorize punitive measures, but making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.’ ”
Circuit Judge Patrick J. Bumatay dissented, arguing that the so-called “make-whole” remedies amounted to a “power grab” by the board, which is authorized under the act to order only equitable relief such as the “reinstatement of employees” and “back pay.”
Yesterday’s opinion objecting to the order denying en banc rehearing of the matter was authored by Circuit Judge Ryan D. Nelson and joined in by Circuit Judges Consuelo M. Callahan, Sandra S. Ikuta, Kenneth K. Lee, and Lawrence VanDyke. All of the dissenters were appointed by Republican presidents.
Thryv Remedies
The make-whole relief was first ordered in the 2022 NLRB decision relating to Thryv Inc. In that matter, the board reasoned that the body was obligated to ensure that workers are “fully compensated” for “pecuniary harms” that were the “foreseeable consequences of an unfair labor practice” under 29 U.S.C. §160(c), which provides:
“If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall…issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter.”
Yesterday’s order was accompanied by amended panel majority and dissenting opinions. In his amended opinion, Wallach indicated that day care, specialty tool, and relocation costs, as well as expenses relating to any changes in immigration statuses, could be found to be beyond the scope of available remedies and wrote:
“Our amendments merely reiterate, perhaps to the point of redundancy, that we are unable to permit or prohibit any specific forms of relief at this stage. Such determinations must await the forthcoming compliance proceeding….We only applied the law as it is….not what we wish, predict, or think it to be.”
Unsatisfied, Bumatay’s updated dissent argued:
“At first, the majority accepted this power grab wholesale….[T]he majority [now] takes some of the most egregious costs that the Board seeks to impose off the table….But that leaves the Board with a wide array of costs it may impose….”
Rejecting the majority’s characterization of the remedies as incidental to authorized equitable relief, he said that “granting the Board this authority would violate the Seventh Amendment” right to a trial by jury.
Dissenters’ View
Agreeing with Bumatay, Nelson wrote:
“The panel majority erred in affirming the NLRB’s unprecedented award of consequential Thryv damages, which are unauthorized by statute and forbidden by the Seventh Amendment. Their decision conflicts with every other circuit court and judge to have considered this question. Because these errors will have serious long-term implications, we should have reheard this case en banc to correct them.”
He pointed out that the Third Circuit has outright rejected Thryv remedies as beyond the authority given to the board by the National Labor Relations Act (“NLRA”) and said that the decision created “a circuit split for no reason.”
Saying that §160(c) “confines the NLRB’s remedial authority to ‘order[s] requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay,” he opined that “the Board’s remedial authority is confined to equitable, not legal relief.”
The jurist remarked that “the NLRB respected these boundaries” until the Thryv decision and opined:
“The panel majority, by affirming Thryv remedies, allows the NLRB to award quintessential tort remedies….Worse,…Thryv remedies ‘go well beyond tort law’ because they are not limited by proximate cause—just foreseeability….[T]he NLRB has granted itself power greater than courts of law, effectively adjudicating private disputes, despite the statutory restrictions on its authority to do so.”
Seventh Amendment
Characterizing the majority panel opinion as “run[ning] roughshod over Macy’s Seventh Amendment rights,” he pointed out that the Constitution provides for a right to a trial by jury in all legal—as opposed to equitable—actions. He argued:
“Thryv remedies are legal in nature….They are consequential money damages and the Seventh Amendment guarantees Macy’s the right to a jury trial before they may be awarded.”
Nelson noted that the majority decision relied on a “public rights exception” to the rule but said that “the NLRB’s newfound power to levy consequential damages against individuals [does not] reflect any of the reasons why the Court found the public rights exception implicated in the past.” He concluded:
“The majority opinion is wrong. It has created an unnecessary circuit split by blessing the NLRB with unprecedented power beyond its statutory authority. It also undermines the Seventh Amendment right to a jury. The jury trial is ‘the glory of the English Law’ and ‘every encroachment upon it’ should be ‘watched with great jealousy.’ Because I refuse to condone such an encroachment, I respectfully dissent.”
The case is International Union of Operating Engineers v. NLRB, 23-124.
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