NATIONAL LABOR RELATIONS BOARD V. MACY'S INC.
Split Score
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Case Summary
Disposition
Affirmed
The Ninth Circuit denied petitions for review filed by the union and Macy’s, and enforced the NLRB’s order finding that Macy’s committed an unfair-labor-practice lockout and must provide make-whole relief. The court held that the lockout was unlawful because Macy’s failed to give employees a timely, clear offer for reinstatement and that the Board could lawfully require Macy’s to reimburse employees for all direct or foreseeable pecuniary harms under the Board’s Thryv framework. Judge Bumatay dissented on both the merits and the scope of the remedy, emphasizing a growing circuit split over the Board’s authority to award consequential damages.
Circuit Split Identified
Legal Issue
Whether §10(c) of the National Labor Relations Act authorizes the NLRB to award "Thryv" make-whole relief for all direct or foreseeable pecuniary harms (i.e., consequential damages) flowing from an unfair-labor-practice finding.
Circuit Positions
§10(c) permits the NLRB to order compensation for all direct or foreseeable pecuniary harms (Thryv damages) as equitable make-whole relief.
§10(c) limits the NLRB to traditional equitable remedies such as reinstatement and back pay; consequential/foreseeable damages are beyond the Board’s authority.
Conflict Summary
The 9th Circuit held that the Board’s make-whole authority extends to compensation for any direct or foreseeable pecuniary harms and therefore upheld the award. The 3rd Circuit (NLRB v. Starbucks Corp., 125 F.4th 78 (3d Cir. 2024)) held that such consequential damages exceed the Board’s statutory powers and vacated a similar order.