Vermont Information Processing, Inc. v. NLRB
Split Score
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Case Summary
Disposition
Reversed in Part
The court reviewed NLRB orders finding that Vermont Information Processing unlawfully terminated four employees who created and circulated a salary-sharing spreadsheet. It upheld the Board’s ruling and remedies as to one employee (Bendel) but vacated and remanded the findings and remedies concerning the other three employees because the Board relied on uncharged conduct. The panel also declined—on preservation grounds—to decide the broader statutory challenge to the Board’s Thryv make-whole remedy.
Circuit Split Identified
Legal Issue
Whether the National Labor Relations Board has statutory authority under 29 U.S.C. § 160(c) to award "direct or foreseeable pecuniary harms" (the Thryv make-whole remedy) that may exceed interim earnings.
Circuit Positions
Thryv remedy exceeds NLRB statutory authority; foreseeable-pecuniary-harms awards are unlawful compensatory damages.
Thryv remedy is within NLRB’s § 10(c) make-whole authority and may be awarded.
Declined to decide merits of Thryv remedy due to preservation/jurisdiction grounds.
Conflict Summary
Several circuits disagree on whether the NLRB’s Thryv formulation—which compensates wrongfully discharged employees for all direct or foreseeable pecuniary losses regardless of interim earnings—exceeds the Board’s remedial authority under § 10(c). The 3rd and 5th Circuits have held the remedy unauthorized and therefore unlawful; the 9th Circuit has upheld the remedy as a permissible exercise of the Board’s make-whole powers; the present 12th Circuit panel declined to reach the merits because the employer failed to preserve the argument, thereby taking no position on legality.