The employer described the NLRB’s holding in Thryv, Inc., as a “power grab” and argued that a circuit split had developed on this issue.

The U.S. Supreme Court recently denied certiorari in an employer’s petition seeking to challenge the NLRB’s authority to order employers to provide Thryv remedies to compensate employees for all pecuniary harms “foreseeably” suffered as a consequence of an unfair labor practice.

Below, the Ninth Circuit enforced the NLRB order that found Macy’s unlawfully locked out union members who unconditionally offered to return to work following a strike, concluding that the Board did not err in providing the employees with broad make-whole relief pursuant to its 2022 precedent in Thryv, Inc. Macy’s could not show a legitimate and substantial business justification for the lockout, the Ninth Circuit concluded, and the employees were not clearly and fully informed of conditions they needed to satisfy to be reinstated. Judge Bumatay, dissenting in part, questioned the authority of the Board to issue Thryv remedies (International Union of Operating Engineers, Local 39 v. NLRB, Nos. 23-124, 23-150, and 23-188 (9th Cir. Jan. 21, 2025)).

According to the employer’s petition, in reaching this conclusion, the Ninth Circuit diverges from the Third, Fifth, and Sixth Circuits, which have concluded that Thryv remedies exceed the Board’s statutory authority. The employer encouraged the Court to grant the writ to resolve this split, claiming that the Ninth...

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