National Labor Relations Board v. MacY's Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERNATIONAL UNION OF No. 23-124

OPERATING ENGINEERS,

NLRB No.

STATIONARY ENGINEERS,

20-CA-270047

LOCAL 39,

ORDER AND

Petitioner, AMENDED

v. OPINION

NATIONAL LABOR RELATIONS

BOARD,

Respondent,

----------------------------------------

MACY’S INC.,

Intervenor.

MACY’S INC., No. 23-150

NLRB No.

Petitioner,

20-CA-270047

v.

NATIONAL LABOR RELATIONS

BOARD,

2 INT’L UNION OF OPERATING ENGINEERS V. NLRB

Respondent,

----------------------------------------

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

STATIONARY ENGINEERS,

LOCAL 39,

Intervenor.

NATIONAL LABOR RELATIONS No. 23-188

BOARD,

NLRB No.

20-CA-270047

Petitioner,

v.

MACY’S INC.,

Respondent,

----------------------------------------

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

STATIONARY ENGINEERS,

LOCAL 39,

Intervenor.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 3

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted March 28, 2024

San Francisco, California

Filed January 21, 2025

Amended October 20, 2025

Before: Evan J. Wallach, * Jacqueline H. Nguyen, and

Patrick J. Bumatay, Circuit Judges.

Order;

Opinion by Judge Wallach;

Partial Dissent by Judge Bumatay;

Dissent from Order by Judge R. Nelson

SUMMARY **

Labor Law

The panel filed (1) an order denying a petition for

rehearing en banc and amending the opinion and partial

dissent filed on January 21, 2025; and (2) an amended

opinion and an amended partial dissent denying petitions for

review brought by the International Union of Operating

*

The Honorable Evan J. Wallach, United States Circuit Judge for the

Federal Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 INT’L UNION OF OPERATING ENGINEERS V. NLRB

Engineers, Stationary Engineers, Local 39 (the “Union”) and

Macy’s Inc., and granting the National Labor Relations

Board’s cross-application for enforcement of its final order

in a case in which the Union charged Macy’s with unfair

labor practices under the National Labor Relations Act

(“NLRA”).

During negotiations over a successor collective

bargaining agreement, Union members voted to reject

Macy’s Final Offer and began a strike. After three months,

the Union ended its strike and unconditionally offered to

return to work. Macy’s locked out the Union members who

reported for work. The Union charged that Macy’s lockout

was an unfair labor practice. The Board adopted the

conclusion of the ALJ, and found that Macy’s violated the

NLRA.

In the amended opinion, the panel held that it had

jurisdiction because the Union is a “person aggrieved.”

The panel rejected Macy’s contention that it could

lawfully lock out the employees under Section 8(a)(1) and

(3) of the NLRA because it could not show legitimate and

substantial business justifications for the lockout. The

Board applied the correct legal standard when it considered

Dayton Newspapers, Inc., 339 N.L.R.B. 650

(2003). Reviewing the record as a whole, the panel found

substantial evidence supporting the Board’s conclusion that

Union employees were not clearly and fully informed of

conditions they needed to satisfy to be

reinstated. Considering Dayton Newspapers, the panel

concluded that the lockout was not justified.

Finding no clear abuse of discretion, the panel enforced

the Board’s remedial order. The Board did not abuse its

discretion in declining to award additional extraordinary

INT’L UNION OF OPERATING ENGINEERS V. NLRB 5

remedies, requested by the Union, because the traditional

remedies awarded were sufficient to effectuate the policies

of the NLRA here. Rejecting Macy’s challenges, the panel

held that the Board did not clearly abuse its discretion in

ordering make-whole relief pursuant to Thryv, Inc., 372

N.L.R.B. No. 22 (Dec. 13. 2022). The panel agreed with the

partial dissent that the Board was not authorized to award

“consequential damages,” but the Board did not award such

damages here. The panel concluded that the Board’s

invocation of Thryy’s make-whole relief framework in this

case vindicated a public right. The panel noted that its

amendments merely reiterated that it was unable to permit or

prohibit any specific forms of relief at this stage. Such

determinations must await the forthcoming compliance

proceeding, where Macy’s can raise the arguments the

dissent urges the panel to consider now.

In the amended partial dissent, Judge Bumatay would

hold that the Board had no authority to order the type of

monetary relief it did, requiring Macy’s to compensate

Union members for direct or foreseeable pecuniary harms

incurred as a result of the unlawful lockout, and for ongoing

harms accumulating to this day—more than four years since

the lockout. Blessing the Board’s authority to impose these

remedies would implicate the Seventh Amendment’s right to

a jury trial. The Board’s actions were arbitrary and

capricious and unsupported by the record. While he agreed

with the denial of the Union’s petition for review, he

dissented from the denial of Macy’s petition for review and

from the grant of the Board’s application for enforcement.

Dissenting from the denial of rehearing en banc, Judge

R. Nelson, joined by Judges Callahan, Ikuta, Lee, Bumatay,

and VanDyke, wrote that this case should be reheard en banc

because the majority erred in affirming the NLRB’s

6 INT’L UNION OF OPERATING ENGINEERS V. NLRB

unprecedented award of consequential Thryy damages,

which are unauthorized by statute and forbidden by the

Seventh Amendment right to a jury trial.

COUNSEL

David A. Rosenfeld (argued), Gary P. Provencher, Bruce A.

Harland, and Sara J. Zollner, Weinberg Roger & Rosenfeld,

Emeryville, California, for Petitioner.

Barbara A. Sheehy (argued), Attorney; Usha Dheenan,

Supervisory Attorney; David Habenstreit and Meredith

Jason, Assistant General Counsel; Ruth E. Burdick, Deputy

Associate General Counsel; Peter S. Ohr, Associate General

Counsel; Stephanie Cahn, Acting Deputy General Counsel;

William B. Cowen, Acting General Counsel; Jennifer A.

Abruzzo, General Counsel; National Labor Relations Board,

Washington, D.C.; for Respondent.

M. Christopher Moon (argued), Jackson Lewis PC, Salt

Lake City, Utah; Dylan B. Carp and Laura A. Pierson-

Scheinberg, Jackson Lewis PC, San Francisco, California;

Daniel D. Schudroff, Jackson Lewis PC, New York, New

York; Paul D. Clement, Matthew D. Rowen, and Kyle R.

Eiswald, Clement & Murphy PLLC, Alexandria, Virginia;

for Intervenor.

Jordan L. Von Bokern and Maria C. Monaghan, U.S.

Chamber Litigation Center, Washington, D.C.; Michael E.

Kenneally, Morgan Lewis & Bockius LLP, Washington,

D.C.; for Amici Curiae the Chamber of Commerce of the

United States of America, Coalition for a Democratic

Workplace, and National Retail Federation.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 7

ORDER

The opinion and partial dissent filed on January 21, 2025

(Dkt. No. 93), and reported at 127 F.4th 58, are amended.

The amended opinion and partial dissent will be filed

concurrently with this Order.

Judge Nguyen voted to deny the petition for rehearing en

banc and Judge Wallach so recommended. Judge Bumatay

voted to grant the petition for rehearing en banc. The full

court was advised of the petition for rehearing en banc. A

judge requested a vote on whether to rehear the matter en

banc. The matter failed to receive a majority of the votes of

the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 40.

The petition for rehearing en banc (Dkt. No. 102) is

DENIED, and no further petitions for rehearing will be

entertained in these cases.

OPINION

WALLACH, Circuit Judge:

When engaging in “collective bargaining” under the

National Labor Relations Act (“NLRA” or the “Act”),

“representatives of an employer and a union attempt to reach

an agreement by negotiation, and, failing agreement, are free

to settle their differences by resort to such economic

weapons as strikes and lockouts, without any compulsion to

reach agreement.” NLRB v. Amax Coal Co., 453 U.S. 322,

336 (1981) (emphasis added) (citations omitted); see also

8 INT’L UNION OF OPERATING ENGINEERS V. NLRB

29 U.S.C. § 158(a), (d) (listing certain prohibited unfair

labor practices by an employer and imposing an obligation

for collective bargaining). During negotiations over a

successor collective bargaining agreement (“CBA”),

communications between Macy’s Inc. (“Macy’s” or

the “Company”) and the International Union of Operating

Engineers, Stationary Engineers, Local 39 (the “Union”) set

off a chain reaction. The Union members voted to reject the

Company’s last, best, and final offer (the “Final Offer”) and

began a strike. After the Final Offer expired, the Union

offered its proposal on wages and pensions, which Macy’s

then rejected. After three months, the Union ended its strike

and unconditionally offered to return to work. Three days

later, Macy’s locked out the Union members who reported

for work.

The Union filed its Charge Against Employer

(“Charge”) with the National Labor Relations Board

(“NLRB” or the “Board”), alleging that the Company’s

lockout was an unfair labor practice under the NLRA. An

Administrative Law Judge (“ALJ”) ultimately ruled in the

Union’s favor.

The Board adopted the conclusion of the ALJ, who found

that Macy’s violated Section 8(a)(1) and (3) 1 of the Act,

1

Under Section 8(a)(1) and (3) of the NLRA:

It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 157 of

this title;

***

INT’L UNION OF OPERATING ENGINEERS V. NLRB 9

29 U.S.C. § 158(a)(1), (3), when on December 7, 2020,

Macy’s locked out its employees without presenting a

timely, clear, and complete offer that set forth the conditions

necessary to avoid a lockout. Macy’s, Inc.,

372 N.L.R.B. No. 42 (Jan. 17, 2023) (“Decision and

Order”). The Board amended the ALJ’s recommended

Order with respect to remedial provisions, modifying the

“make-whole remedy” to include direct or foreseeable

pecuniary harms incurred due to the lockout.

Before us are three prayers for relief: (1) the Union

petitions for remand for the Board to reconsider its requested

additional remedies; (2) Macy’s petitions for dismissal of

the Union’s petition and transfer of the proceedings

elsewhere, or alternatively, either remand or reversal on the

merits in its favor; and (3) the Board applies for enforcement

of its final Order. We have jurisdiction under 29 U.S.C.

§ 160(e)–(f). We deny the Union’s and the Company’s

Petitions for Review and grant the Board’s

Cross-Application for Enforcement.

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment

to encourage or discourage membership in any labor

organization . . . .

29 U.S.C. § 158(a)(1), (3); see also Metro. Edison Co. v. NLRB,

460 U.S. 693, 698 n.4 (1983) (“[A] violation of § 8(a)(3) constitutes a

derivative violation of § 8(a)(1).” (citations omitted)).

10 INT’L UNION OF OPERATING ENGINEERS V. NLRB

I. FACTUAL AND PROCEDURAL

BACKGROUND 2

Macy’s is a retail business with more than 700 stores and

75,000 employees nationwide. The Union represents

building engineers and craftsmen who perform carpentry,

painting, as well as maintenance and repair work, especially

on heating, ventilation, and air conditioning (HVAC) and

electrical systems, at two Macy’s stores in Reno, Nevada,

and approximately forty other stores across Northern

California and the San Francisco Bay Area. On April 1,

2020, Macy’s laid off about sixty Union engineers, after

closing its stores and furloughing most of its employees in

response to the COVID-19 pandemic. Later that year,

Macy’s started to reopen its stores, and by mid-August, it

recalled forty-three Union engineers back to work.

For over twenty years, Macy’s and the Union maintained

a collective-bargaining relationship. In July 2020, Macy’s

and the Union began bargaining for a successor CBA since

the CBA then in place, covering between sixty to seventy

Union employees, was set to expire on August 31, 2020.

After nearly a dozen bargaining sessions, they had yet to

reach an agreement. On August 31, 2020—the day the CBA

would expire—Macy’s presented its Final Offer proposing

terms relating to wages and pensions. On September 2,

2020, the Union members overwhelmingly voted to reject

the Final Offer and the Union decided it would begin its

strike in two days. From September 4, 2020, to December

4, 2020, the Union staged its strike, picketing every day

2

Only the factual assertions pertinent to resolving the matter before us

are presented here, and they are primarily drawn from the findings within

the April 6, 2022 ALJ’s Decision (“ALJ’s Decision”), which the Board

affirmed in its January 17, 2023 Decision and Order.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 11

during business hours at Macy’s Union Square store in San

Francisco. Macy’s argued before the ALJ that during the

strike, the Union employees engaged in a variety of

misconduct and sabotage.

On October 8, 2020, Rose Ashmore (“Ashmore”), the

Company’s lead negotiator, told Jay Vega (“Vega”), the

Union’s lead negotiator, over the phone that the Final Offer

would expire in a week; Ashmore confirmed this once more

in an email to Vega four days later. On October 15, 2020,

the Final Offer expired. Vega called Ashmore on November

9, 2020, and asked if Macy’s would present another offer.

Ashmore said no, but asked whether the Union would like to

resume bargaining; Vega said he would get back to her. On

November 25, 2020, the day before Thanksgiving, Vega sent

an email to Ashmore including the Union’s proposal on

wages and pensions. Ashmore replied to Vega over text,

notifying her receipt of the email and her inability to speak

with her team at Macy’s about the offer until after the

holiday.

On December 4, 2020, Ashmore emailed Vega rejecting

the Union’s wage proposal. That same day, Vega replied

that the Union no longer wished the dispute to continue, so

it was making “an unconditional offer to return our members

to work immediately.” After Vega sent this email, the Union

ended its strike and stopped picketing. Later that evening,

Ashmore replied to Vega, stating that she would respond to

the Union’s unconditional offer by the end of business on

Monday, December 7, 2020, because she needed to discuss

the offer “with all necessary partners.” In the reply,

Ashmore told Vega “please do not have the members report

to work yet.” Vega asked her over email, “[d]oes this mean

you are locking them out till Monday?” On December 5,

2020, Ashmore answered that Macy’s would need to fully

12 INT’L UNION OF OPERATING ENGINEERS V. NLRB

evaluate “several administrative, logistical, and economic

issues” implicated by the Union’s “unexpected offer,” and

requested “the courtesy of giving us until the close of

business Monday to assess.” On December 6, 2020, Vega

responded that “[u]nfortunately, we cannot accommodate

your request. Unless you are locking them out, they will [be]

showing up to work Monday morning.” Ashmore replied,

repeating that “the team should not return to work on

Monday,” as well as stating that “[t]his is not a lockout but

we won’t be ready for them.”

On Monday, December 7, 2020, some Union engineers

started returning to work but were turned away. That same

day, Ashmore emailed Vega, asserting “[w]e are not willing

to reinstate bargaining [Union] employees until there is an

agreement in place; this decision is being made in support of

our bargaining position.”

On December 10, 2020, Macy’s and the Union engaged

in subsequent negotiations. Ashmore emailed Vega the

Company’s new bargaining proposal, which includes wage

increases that were reduced from those within the Final

Offer. The Union countered with an offer to cap wages at

the rates originally proposed in the Final Offer. No deal was

made. The next day, Macy’s presented another proposal,

which was still worse than the Final Offer. The Union gave

its additional proposal, deleting certain provisions from the

contract. Once again, Macy’s and the Union failed to reach

an agreement.

On December 9, 2020, and February 4, 2021, the Union

respectively filed its original and first amended Charge

forms with the NLRB, alleging that Macy’s committed an

unfair labor practice by locking out the Union engineers after

they gave their unconditional offer to return to work. On

INT’L UNION OF OPERATING ENGINEERS V. NLRB 13

February 11, 2021, the NLRB issued its Complaint and

Notice of Hearing (“Complaint”), which alleges that Macy’s

violated Section 8(a)(1) and (3) of the Act. In June 2021, the

ALJ conducted a six-day hearing, and at that time, Macy’s

and the Union “had still not reached an agreement on a new

contract, and [the Company’s] lockout of the engineers

continued.”

In the ALJ’s Decision issued on April 6, 2022, the ALJ

concluded that Macy’s violated Section 8(a)(1) and (3) of

the NLRA, “[b]y locking out its employees on December 7,

2020, without providing them with a timely, clear, or

complete offer, which sets forth the conditions necessary to

avoid the lockout[.]” The ALJ recommended that Macy’s

“offer reinstatement to all employees who were unlawfully

locked out and make them whole for any losses of pay and

benefits that they may have suffered by reason of the

lockout,” including “search-for-work and interim

employment expenses, regardless of whether those expenses

exceed interim earnings.” With respect to the ALJ’s

Decision, Macy’s filed its Exceptions and the Union filed its

Cross-Exceptions.

On January 17, 2023, the Board in its Decision and Order

affirmed the ALJ’s rulings, findings, and conclusions, and

adopted the ALJ’s recommended Order, making two

modifications. The Board modified the ALJ’s

recommended Order, first, “to conform to the violations

found and to the Board’s standard remedial language, and in

accordance with” prior NLRB decisions, and second, to

amend the “make-whole remedy” to provide that Macy’s

“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

14 INT’L UNION OF OPERATING ENGINEERS V. NLRB

interim employment expenses, if any, regardless of whether

these expenses exceed interim earnings.”

Macy’s petitioned for review over the Board’s Decision

and Order in the Fifth Circuit, and the Union filed its petition

in this Court. Pursuant to 28 U.S.C. § 2112, the Judicial

Panel on Multidistrict Litigation transferred their Petitions

for Review here, after this Court was randomly selected.

The NLRB filed a Cross-Application for Enforcement of its

final Order. These three petitions were consolidated here.

II. STANDARD OF REVIEW

We “must uphold a Board decision when substantial

evidence supports its findings of fact and when the agency

applies the law correctly.” United Nurses Ass’ns of Cal. v.

NLRB, 871 F.3d 767, 777 (9th Cir. 2017) (internal quotation

marks and citation omitted). “We review de novo whether

the Board applied the correct legal standard.” NLRB v.

Bingham-Willamette Co., 857 F.2d 661, 663 (9th Cir. 1988)

(citing Allied Chem. & Alkali Workers of Am. v. Pittsburgh

Plate Glass Co., 404 U.S. 157, 182 (1971)). The Board’s

factual findings “shall be conclusive” if they are “supported

by substantial evidence on the record considered as a

whole . . . .” 29 U.S.C. § 160(e)–(f). “The Board has special

expertise in drawing” inferences of unlawful motive and

credibility, so “its determinations are entitled to judicial

deference.” Kallmann v. NLRB, 640 F.2d 1094, 1099

(9th Cir. 1981) (citation omitted); accord Universal Camera

Corp. v. NLRB, 340 U.S. 474, 496 (1951) (“We intend only

to recognize that evidence supporting a conclusion may be

less substantial when an impartial, experienced examiner

who has observed the witnesses and lived with the case has

drawn conclusions different from the Board’s than when he

has reached the same conclusion.”).

INT’L UNION OF OPERATING ENGINEERS V. NLRB 15

Moreover, the Board’s “discretion in selecting remedies

is ‘exceedingly broad,’ and we will enforce a remedy ‘unless

it represents a clear abuse of discretion.’” NLRB v.

Ampersand Publ’g, LLC, 43 F.4th 1233, 1236 (9th Cir.

2022) (quoting NLRB v. C.E. Wylie Constr. Co.,

934 F.2d 234, 236 (9th Cir. 1991)). “Such an abuse of

discretion is present if it is shown that the order is a patent

attempt to achieve ends other than those that can be fairly

said to effectuate the policies of the Act.” Id. at 1236–37

(quoting Wylie, 934 F.2d at 236).

“Because the Board adopted the ALJ’s analysis” by

affirming the ALJ’s rulings, findings, and conclusions, “we

treat the Board’s order and the adopted ALJ analysis as one

order.” Kava Holdings, LLC v. NLRB, 85 F.4th 479, 491 n.5

(9th Cir. 2023) (citation omitted).

III. DISCUSSION

To address the inherent “inequality of bargaining power”

between employers and “employees who do not possess full

freedom of association or actual liberty of contract,”

29 U.S.C. § 151, the NLRA “‘encourag[es] the practice and

procedure of collective bargaining,’ between labor and

management to resolve ‘industrial disputes arising out of

differences as to wages, hours, or other working

conditions,’” Glacier Northwest, Inc. v. Teamsters,

598 U.S. 771, 775 (2023) (alteration in original) (quoting

29 U.S.C. § 151). “The NLRA makes it unlawful for an

employer to engage in unfair labor practices[.]” Hooks ex

rel. NLRB v. Nexstar Broad., Inc., 54 F.4th 1101, 1106

(9th Cir. 2022) (citing 29 U.S.C. § 158). The NLRA also

“grants the Board broad discretion to impose remedies for

unfair labor practices.” Ampersand, 43 F.4th at 1238

(cleaned up). “The Board may take any ‘affirmative action’

16 INT’L UNION OF OPERATING ENGINEERS V. NLRB

that ‘will effectuate the policies’ of the Act.” Id. (first

quoting 29 U.S.C. § 160(c); then citing Va. Elec. & Power

Co. v. NLRB, 319 U.S. 533, 539–40 (1943)). “Within this

limit the Board has wide discretion in ordering affirmative

action; its power is not limited to the illustrative example of

one type of permissible affirmative order, namely,

reinstatement with or without back pay.” Va. Elec.,

319 U.S. at 539 (citing Phelps Dodge Corp. v. NLRB,

313 U.S. 177, 187, 189 (1941)). “The particular means by

which the effects of unfair labor practices are to be expunged

are matters ‘for the Board not the courts to determine.’” Id.

(quoting Int’l Ass’n of Machinists v. NLRB, 311 U.S. 72, 82

(1940)).

The Board here found that the Company’s lockout

constituted unfair labor practices under Section 8(a)(1) and

(3) of the Act. We deny both the Union’s and the Company’s

Petitions for Review, and we grant the Board’s

Cross-Application for Enforcement for the following

reasons: (1) we have jurisdiction over this consolidated

appeal; (2) substantial evidence supports the Board’s factual

findings regarding the Company’s unlawful lockout; (3) the

Board’s selection of remedies here is not a clear abuse of

discretion; and (4) the Board’s final Order is enforceable

under the circumstances here disclosed.

A. Jurisdiction

“A federal court of appeals may review the Board’s final

order, if an aggrieved party seeks judicial review or if the

Board seeks enforcement of its order.” Starbucks Corp. v.

McKinney, 602 U.S. 339, 343 (2024) (citing 29 U.S.C.

§ 160(e)–(f)). Macy’s argues that the Union lacks standing

as a “person aggrieved” by the Board’s Decision and Order

within the meaning of § 160(f), because the Union “does not

INT’L UNION OF OPERATING ENGINEERS V. NLRB 17

deny that the Board granted it all of the relief that it had

specifically sought in the [C]harge form[s] and

[C]omplaint.” 3 Int’l Union of Operating Eng’r Loc. 501 v.

NLRB, 949 F.3d 477, 482 (9th Cir. 2020). We review this

jurisdictional question de novo, see Advanced Integrative

Med. Sci. Inst., PLLC v. Garland, 24 F.4th 1249, 1256

(9th Cir. 2022), and conclude that we have jurisdiction

because the Union is a “person aggrieved.” 4

After Macy’s filed its Exceptions to the ALJ’s Decision,

the Union properly requested additional remedies not

granted by the ALJ in its Cross-Exceptions. See 29 C.F.R.

§ 101.11(b) (“Whenever any party files exceptions, any

other party . . . may file cross-exceptions relating to any

portion of the administrative law judge’s decision.”

(emphasis added)). Among other things, the ALJ’s

recommended Order required that Macy’s, at “all locations

3

The NLRB’s “‘authority kicks in when a person files a charge with the

agency alleging that’ an employer or labor union has engaged in an unfair

labor practice.” McKinney, 602 U.S. at 342–43 (first quoting Glacier,

598 U.S. at 775; then citing 29 C.F.R. § 101.2 (2021)). Next, a Regional

Director investigates the charge. Id. at 343 (citing 29 C.F.R. § 101.4

(2023)). “If the charge appears to have merit,” 29 C.F.R. § 101.8, then

the Regional Director “institutes a formal action against the offending

party by issuing an administrative complaint,” McKinney, 602 U.S. at

343 (citing 29 C.F.R. § 101.8). The NLRB General Counsel “prosecutes

the government’s case.” Ampersand, 43 F.4th at 1235 (citing 29 U.S.C.

§ 153(d)).

4

Although Macy’s does not challenge our “jurisdiction to resolve the

Board’s application for enforcement under 29 U.S.C. § 160(e),” we must

assure ourselves of our own jurisdiction over the Board’s

Cross-Application for Enforcement. NLRB v. Siren Retail Corp.,

99 F.4th 1118, 1122, 1124 (9th Cir. 2024). Because we have jurisdiction

under § 160(e) also, we may “proceed to the merits of the Board’s

application for enforcement.” Id. at 1124.

18 INT’L UNION OF OPERATING ENGINEERS V. NLRB

in Northern California and Reno, Nevada,” physically

maintain and post the Board’s notice “for 60 consecutive

days in conspicuous places,” as well as distribute the same

notice electronically to employees, or if Macy’s “has gone

out of business or closed the facilit[ies] involved in these

proceedings, . . . duplicate and mail, at its own expense, a

copy of the notice to all current employees and former

employees employed by the [Company] at any time since

December 7, 2020.” According to the Board, the Union

requested “several extraordinary remedies, including

multiple notice readings by upper-level managers involved

in the lockout, notice posting on the [Company’s] public

website, notice mailing to all of the [Company’s] employees

who had worked at locations where employees were locked

out, and notice posting for at least three years.”

The Board then denied “in part the relief sought,”

29 U.S.C. § 160(f), by expressly denying the Union’s

request for “several extraordinary remedies . . . because the

Board’s traditional remedies are sufficient to effectuate the

policies of the Act in this matter.” See Textile Workers

Union of Am., AFL-CIO v. NLRB, 475 F.2d 973, 974 & n.2

(D.C. Cir. 1973) (per curiam) (noting that the union was a

“party aggrieved,” as it “petitioned for review of the Board’s

refusal to order more stringent remedies”). Thus,

jurisdiction over this consolidated appeal is proper. 5

5

By random selection for multidistrict litigation, see 28 U.S.C.

§ 2112(a)(1), (3), the Union’s and the Company’s Petitions for Review

were first transferred and then consolidated here. As the alleged “truly

aggrieved party,” Macy’s asserts that any remaining proceedings should

be transferred to the Fifth Circuit, “wherein” Macy’s “resides or transacts

business[.]” 29 U.S.C. § 160(f). However, the Union as a “person

INT’L UNION OF OPERATING ENGINEERS V. NLRB 19

B. The Lockout

Under American Ship Building Co. v. NLRB,

380 U.S. 300, 318 (1965), an employer may lawfully lock

out employees under Section 8(a)(1) and (3) of the Act “after

a bargaining impasse has been reached,” if the lockout is “for

the sole purpose of bringing economic pressure to bear in

support of [its] legitimate bargaining position.” Macy’s

insists that this is exactly what it did. We disagree.

Two years after American Ship, the Supreme Court in

NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), found

that when, “after conclusion of the strike, the employer

refuses to reinstate striking employees, the effect is to

discourage employees from exercising their rights to

organize and to strike,” id. at 378 (citing 29 U.S.C. §§ 157,

163). The Supreme Court determined that such interference

with these rights by an employer constitutes an unfair labor

practice under Section 8(a)(1) and (3) of the Act. Id. (citing

29 U.S.C. § 158(a)(1), (3)). Accordingly, as “the employer

who refuses to reinstate strikers,” Macy’s “is guilty of an

unfair labor practice” unless it can show “legitimate and

substantial business justifications” for its lockout. Id. (citing

NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967)).

Macy’s does not make such a showing, and substantial

evidence supports the Board’s related findings.

Macy’s first argues that the Board legally erred by failing

to apply the so-called “Great Dane framework” to evaluate

aggrieved,” could also file its petition with “the circuit wherein” the

alleged unlawful lockout occurred. Id. Thus, we deny the Company’s

request, Case No. 23-188, Dkt. 16, for transfer.

20 INT’L UNION OF OPERATING ENGINEERS V. NLRB

the alleged Section 8(a)(3) violation. We have previously

acknowledged that:

The Supreme Court has established a

framework for determining whether

employer conduct is unlawfully

discriminatory. Some employer conduct is so

“inherently discriminatory or destructive” of

employee rights that anti-union motivation is

inferred. NLRB v. Erie Resistor Corp.,

373 U.S. 221, 227–28, 83 S. Ct. 1139,

10 L. Ed. 2d 308 (1963). If employer

conduct is “inherently destructive,” the

Board may find an improper motive

regardless of evidence of a legitimate

business justification. See NLRB v. Great

Dane Trailers, Inc., 388 U.S. 26, 33,

87 S. Ct. 1792, 18 L. Ed. 2d 1027 (1967). If,

on the other hand, “the adverse effect of the

discriminatory conduct on employee rights is

‘comparatively slight,’” and the employer

establishes a legitimate and substantial

business justification for its actions, there is

no violation of the Act without a finding of

an actual anti-union motivation. Id. at 34,

87 S. Ct. 1792[.]

Fresh Fruit & Vegetable Workers Loc. 1096 v. NLRB,

539 F.3d 1089, 1096 (9th Cir. 2008); see also id. (“In

determining whether or not a company has violated the

NLRA, the relevant inquiry is whether or not the employer’s

action likely discouraged union membership and was

motivated by anti-union animus.” (citing Metro. Edison,

460 U.S. at 700)). “The Supreme Court has defined

INT’L UNION OF OPERATING ENGINEERS V. NLRB 21

‘inherently destructive’ conduct as conduct that ‘carries with

it an inference of unlawful intention so compelling that it is

justifiable to disbelieve the employer’s protestations of

innocent purpose.’” Id. at 1096–97 (quoting Am. Ship,

380 U.S. at 311–12). Under this framework, the “burden of

proving justification is on the employer.” Fleetwood

Trailer, 389 U.S. at 378 (citing Great Dane, 388 U.S. at 34).

Upon de novo review, we conclude that the Board

applied the correct legal standard when it considered Dayton

Newspapers, Inc., 339 N.L.R.B. 650 (2003), enforced in

relevant part, 402 F.3d 651 (6th Cir. 2005), a prior NLRB

decision in which the Board applied the Great Dane

framework. See, e.g., Dayton Newspapers, 339 N.L.R.B. at

664 (“An employer’s unlawful refusal to reinstate economic

strikers is conduct so inherently destructive of employee

rights that evidence of specific antiunion motivation is not

necessary to establish a violation of the Act.” (citing Great

Dane, 388 U.S. 26)). “[T]he Board is not obligated to justify

its interpretation anew with every application if it has done

so adequately in a previous decision.” ITT Indus., Inc. v.

NLRB, 413 F.3d 64, 70 (D.C. Cir. 2005) (citation omitted).

The Board therefore did not legally err on this ground.

For a lockout to be deemed lawful, “the union must be

informed on a timely basis of the employer’s demands so

that the union can evaluate whether to accept them and

prevent the lockout.” Alden Leeds, Inc., 357 N.L.R.B. 84,

93 (2011) (collecting cases), enforced, 812 F.3d 159

(D.C. Cir. 2016). “[I]n order for employees to ‘knowingly

[re]evaluate their position’ . . . , the employees must not only

be informed that they are locked out, but they must be clearly

and fully informed of the conditions they must meet to be

reinstated.” Dayton Newspapers, 339 N.L.R.B. at 656

(quoting Eads Transfer, Inc., 304 N.L.R.B. 711, 712 (1991),

22 INT’L UNION OF OPERATING ENGINEERS V. NLRB

enforced, 989 F.2d 373 (9th Cir. 1993)). Relying on Alden

Leeds and Dayton Newspapers, the Board concluded that

Macy’s violated Section 8(a)(1) and (3) of the NLRA “by

locking out employees, while at the same time never clearly

and fully informing them of the conditions that must be met

in order to be reinstated.”

Reviewing the record as a whole, we find that substantial

evidence supports the Board’s conclusion that Union

employees were not clearly and fully informed of conditions

they need to satisfy to be reinstated. As the ALJ found,

[a]t the time Macy’s locked out the [Union]

engineers on December 7, neither the Union

nor the strikers knew [the Company’s]

bargaining position. All they knew was that

Macy’s was refusing to allow the engineers

to return to work until there was a contract in

place. However, because the Final Offer had

expired, and Macy’s had not presented any

other bargaining proposals to the Union, at

the time of the lockout, neither the Union nor

the employees were “clearly and fully

informed of the conditions they must meet to

be reinstated,” Dayton Newspapers,

339 [N.L.R.B.] at 656, nor did they have “a

clear statement of the conditions that [the]

employees must accept to avert the lockout.”

Alden Leeds, Inc., 357 [N.L.R.B.] at 95.

Nevertheless, Macy’s counters that its lockout was

justified. “An employer must reinstate an economic striker

who offers unconditionally to return to work, unless the

employer has a substantial and legitimate business reason for

INT’L UNION OF OPERATING ENGINEERS V. NLRB 23

refusing to do so.” Zapex Corp. v. NLRB, 621 F.2d 328, 333

(9th Cir. 1980) (citations omitted); see also Dayton

Newspapers, Inc. v. NLRB, 402 F.3d 651, 662 (6th Cir.

2005) (“An employer violates NLRA § 8(a)(3) and (1) if it

fails to reinstate striking workers without showing a

legitimate and substantial business justification.” (first citing

Fleetwood Trailer, 389 U.S. at 378; then citing Great Dane,

388 U.S. at 34)). Macy’s asserts that the lockout was

justified because it was imposed in support of its bargaining

position. Macy’s further argues that it “followed Eads

Transfer’s guidance by promptly informing the Union of its

lockout on December 7, the first business day after the Union

offered to return to work after a three-month strike.”

Considering Dayton Newspapers, we conclude that the

lockout was not justified.

In Dayton Newspapers, 339 N.L.R.B. 650, the Board

found an unlawful lockout where union workers, after a

six-month strike, gave their unconditional offer to return to

work during the holiday season on Thursday, December 23,

1999, and the company refused their request for

reinstatement four days later, on Monday, December 27,

1999. See, e.g., Dayton Newspapers, 402 F.3d at 662 (“As

a consequence of this refusal, the NLRB found that as of

December 27, 1999, [the company] was engaged in an illegal

lockout.”). Before the Board in Dayton Newspapers, the

company complained that the union’s offer to return to work

“came before the holidays and in the midst of [the

company’s] attempt to solve problems with Y2K

adjustments,” and that the company’s “representatives

involved in decision-making were not available at a

moment’s notice at that time of year[.]” 339 N.L.R.B. at

667. Recognizing that the Board “has the primary

responsibility for balancing management’s business needs

24 INT’L UNION OF OPERATING ENGINEERS V. NLRB

with the workers’ right to be reinstated,” Dayton

Newspapers, 402 F.3d at 663 (citing Fleetwood Trailer,

389 U.S. at 378), the Sixth Circuit concluded that the Board

“did not err in finding that after December 27, [the

employer’s] demands became a ‘moving target’ that made it

ever more difficult for the [u]nion to knowingly evaluate its

position and end the lockout,” id. Simply put, “employees

must know at any point in the lockout what they can do to

end it.” Id. at 662.

As the NLRB, Macy’s, and the Union all agree here, at

the time of the lockout there was no offer at all on the table—

not a confusing or uncertain one or even a moving target.

See Alden Leeds, Inc. v. NLRB, 812 F.3d 159, 164–66

(D.C. Cir. 2016) (concluding that the Board’s finding that

the employer violated the NLRA is supported by substantial

evidence, where the employer communicated an “unclear”

proposal, “failing to provide the [u]nion with a timely, clear,

and complete offer setting forth the conditions necessary to

avoid the lockout”). Macy’s did not inform the Union of its

demands or conditions in a timely, clear, and complete

manner, preventing the Union members from having a fair

opportunity to evaluate any bargaining proposals for either

lockout or reinstatement purposes. See id. at 165. Worse

than a “moving target” is not knowing where to aim at all.

See Dayton Newspapers, 339 N.L.R.B. at 656.

Macy’s concedes that it withdrew its Final Offer, and

substantial evidence supports the Board’s finding that

Macy’s rejected the Union’s wage proposal without

proffering any other bargaining proposals before the lockout.

Although Macy’s argues that its condition was that it

required an agreement in place to end the lockout, we

conclude that substantial evidence supports the Board’s

INT’L UNION OF OPERATING ENGINEERS V. NLRB 25

finding that such an indeterminate condition did not satisfy

its obligations.

The Union ended its strike and gave Macy’s its

unconditional offer to return to work on December 4, 2020.

Two days later, on December 6, 2020, Vega sent an email to

Ashmore, stating that the employees would show up to work

the next morning unless they were being locked out. That

afternoon, Ashmore replied that:

[The Union’s] unexpected offer, coming on a

Friday afternoon after a contentious strike of

over three months, implicates several

administrative, logistical, and economic

issues that need to be fully evaluated on our

end with the input of several company

employees. For that reason, the team should

not return to work on Monday. This is not a

lockout . . . .

The next morning, on Monday, December 7, 2020, at

least some of the Union members reported to work. On that

day, Ashmore wrote to Vega:

We have carefully evaluated your offer to

have bargaining [Union] members return to

work. We are not willing to reinstate

bargaining [Union] employees until there is

an agreement in place; this decision is being

made in support of our bargaining position.

Macy’s was “obligated to declare the lockout before or

in immediate response to the strikers’ unconditional offer[]

to return to work.” Eads Transfer, 304 N.L.R.B. at 713

(emphasis added). It was further required to inform the

26 INT’L UNION OF OPERATING ENGINEERS V. NLRB

Union fully and clearly on the conditions necessary for

employees to be reinstated. See Dayton Newspapers,

339 N.L.R.B. at 656. Macy’s failed to satisfy either of these

requirements, and instead it declared its lockout three days

after the Union gave its unconditional offer to return to work

and a day after Ashmore told Vega, “This is not a

lockout . . . .” With such misdirection, the Union engineers

would not be able to “knowingly reevaluate their position

and decide whether to accept the employer’s terms and . . .

take other appropriate action.” Eads Transfer, Inc. v. NLRB,

989 F.2d 373, 376 (9th Cir. 1993). Thus, we are

unpersuaded that Macy’s met the “guidance” set forth by

Eads Transfer, when Dayton Newspapers applied just that

and found that a similarly situated employer there failed to

set forth its conditions clearly and fully, so “the [u]nion

could not intelligently evaluate its position and obtain

reinstatement.” Dayton Newspapers, 339 N.L.R.B. at 656.

Macy’s alternatively argues that its lockout was not only

offensive, but also defensive. “[T]he Supreme Court’s

American Ship decision has obliterated, as a matter of law,

the line previously drawn by the Board between offensive

and defensive lockouts.” Evening News Ass’n,

166 N.L.R.B. 219, 221 (1967). Accordingly, “a

fundamental principle underlying a lawful lockout is that the

Union must be informed of the employer’s demands, so that

the Union can evaluate whether to accept them and obtain

reinstatement,” Boehringer Ingelheim Vetmedica, Inc.,

350 N.L.R.B. 678, 679 (2007) (emphasis added) (quoting

Dayton Newspapers, 339 N.L.R.B. at 656), regardless of

whether we characterize the lockout as offensive or

defensive. Moreover, a lockout that is “defensive” in nature

must be justified by an intent “to avoid severe and unusual

hardships.” Id.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 27

Before the ALJ, Macy’s argued that it had “good-faith

concerns” over misconduct and sabotage by the Union,

especially during the holiday shopping season, which it

claims justified the “defensive” lockout. The ALJ

systematically reviewed the Company’s submitted evidence,

including witness testimony, and ultimately concluded that

Macy’s provided those “post-hoc excuses” to bolster its

defense and that the Company’s true “motive” in locking out

its employees was to “gain economic leverage so the Union

would accept” its new wage proposal that it submitted to the

Union on December 10, 2020. Because the Board “carefully

examined the record and [found] no basis for reversing” the

ALJ’s credibility findings, we conclude that the Board’s

“determinations are entitled to judicial deference[,]” based

on its “‘special expertise in drawing’ inferences of

credibility and unlawful motive[.]” Kava Holdings,

85 F.4th at 486 (quoting Kallmann, 640 F.2d at 1099). “We

may not reject the ALJ’s credibility determinations unless a

clear preponderance of the evidence shows they are

incorrect.” Lippincott Indus., Inc. v. NLRB, 661 F.2d 112,

114 (9th Cir. 1981) (citations omitted). Here, the record as

a whole shows that the ALJ’s conclusions and the Board’s

reasoning about the Company’s misconduct and sabotage

arguments and evidence were well-supported by the

articulated and admissible facts.

In sum, on this record, substantial evidence supports the

Board’s finding that Macy’s violated the Act at the time of

the lockout, where Macy’s failed to inform the Union fully

and clearly on the conditions necessary for employees either

to be reinstated, see Dayton Newspapers, 339 N.L.R.B. at

656, or to avoid a lockout before one even occurred, see

Alden Leeds, 357 N.L.R.B. at 95. Macy’s failed to timely,

clearly, and fully inform the Union of the conditions

28 INT’L UNION OF OPERATING ENGINEERS V. NLRB

necessary (e.g., new contract offers or other bargaining

proposals) to prevent a lockout or to be reinstated, when the

Final Offer expired on October 15, 2020, and Macy’s

rejected the Union’s November 25, 2020 wage proposal

without providing “any type of counter offer” before the

lockout on December 7, 2020. In other words, Macy’s failed

to meet its “burden of showing such a legitimate

justification.” Eads Transfer, 989 F.2d at 375 (citing

Fleetwood Trailer, 389 U.S. at 378).

C. Remedies

“The function of the remedy in unfair labor cases is to

restore the situation, as nearly as possible, to that which

would have occurred but for the violation.” Kallmann,

640 F.2d at 1103 (citing Phelps Dodge, 313 U.S. at 194).

The Board’s selected remedies are challenged on two fronts.

The Union argues that its requested additional remedies were

improperly denied, but Macy’s contends that the traditional

ones were awarded in error. The NLRB counters that its

selection of remedies strikes the proper balance under its

broad discretion. The Board’s “discretion in selecting

remedies is ‘exceedingly broad,’ and we will enforce a

remedy ‘unless it represents a clear abuse of discretion.’”

Ampersand, 43 F.4th at 1236 (quoting Wylie, 934 F.2d at

236). Finding no clear abuse of discretion, we enforce the

Board’s remedial order.

1. The Union’s Requested Additional Remedies

The Board denied the Union’s request for “several

extraordinary remedies” because it concluded that

“traditional remedies are sufficient to effectuate the policies

of the Act” here. The Union petitions for review of that

determination, requesting four additional remedies: (1) a

notice reading in the presence of members of management

INT’L UNION OF OPERATING ENGINEERS V. NLRB 29

responsible for the lockout decision; (2) an extended notice

posting more than the standard sixty-day period; (3) a notice

mailing to all Union members, including those who were

locked out; and (4) a notice expressly explaining how

Macy’s violated the Act. 6 We conclude that the Board did

not clearly abuse its discretion in declining to award these

remedies. See Wylie, 934 F.2d at 236.

With respect to the first three additional remedies (a

notice reading with management’s presence, an extended

notice posting, and a notice mailing), we observe that they

are typically reserved for “cases involving respondents who

have shown a proclivity to violate the Act or who have

engaged in egregious or widespread misconduct.” Noah’s

Ark Processors, LLC, 372 N.L.R.B. No. 80, slip op. at 4

(Apr. 20, 2023) (finding “egregious or widespread”

misconduct, where the respondent’s “violations seriously

affected the entire unit by undermining their chosen

bargaining representative, violating their right to have the

[u]nion negotiate on their behalf, and demonstrating to them

in no uncertain terms that the [r]espondent was willing to

ignore a court order in order to violate their rights”),

enforced, 98 F.4th 896 (8th Cir. 2024); see also Whitesell

Corp., 357 N.L.R.B. 1119, 1124 (2011); HTH Corp.,

361 N.L.R.B. 709, 714 (2014), enforced in relevant part,

823 F.3d 668 (D.C. Cir. 2016). Based on the record before

us, we conclude that the Board did not clearly abuse its

discretion, where the record does not contain evidence that

Macy’s is a repeat offender of the Act or engaged in such

6

On appeal, the Union challenges the Board’s Decision and Order only

to the extent its extraordinary remedies were denied; it does not take

issue with the traditional remedies that were granted and the Board’s

conclusion that Macy’s violated the Act by unlawfully locking out

employees.

30 INT’L UNION OF OPERATING ENGINEERS V. NLRB

egregious or widespread misconduct that warrants these

extraordinary remedies.

As to the fourth additional remedy, the Union argues that

the Board’s notice does not “contain affirmative language

expressly explaining how Macy’s violated the Act.” For

example, the Board’s notice that is required to be physically

posted at the Company’s facilities and electronically

distributed to employees, includes the statement, “WE

WILL NOT lock you out without providing you with a

timely, clear, and complete offer, that sets forth the

conditions necessary to avoid the lockout.” Specifically, the

Union requests that the Board either substitute or supplement

“We will not” statements with those stating “[w]e have done

or committed . . . .” 7 We agree with the NLRB that the

7

The Board’s notice also includes the following “We will” statements:

WE WILL make the locked-out employees whole for

any loss of earnings and other benefits resulting from

the unlawful lockout, less any net interim earnings,

plus interest, and WE WILL also make them whole for

any other direct or foreseeable pecuniary harms

suffered as a result of the unlawful lockout, including

reasonable search-for-work and interim employment

expenses, plus interest.

To further clarify the Company’s actions to employees, however, the

Union proposes the following amended language to the Board’s notice:

We were found by the National Labor Relations Board

to have violated federal law by refusing to allow

members of [the Union] to return to work and

unlawfully locked them out. We have agreed to

remedy this violation by reinstating all locked out

employees who wish to return and by making them

whole for our conduct.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 31

Union fails to show how it clearly abused its discretion by

applying its “decades-old practice of including only ‘WE

WILL’ and ‘WE WILL NOT’ phrases in its notices . . . .”

See, e.g., HTH Corp. v. NLRB, 823 F.3d 668, 672 (D.C. Cir.

2016) (“In the ‘notice’ the officials are . . . to state 15

specific assurances in the form, ‘We will’ adhere to specified

NLRA obligations and remedy various breaches, or ‘We will

not’ violate the Act in a wide range of specified ways.”).

Accordingly, we do not find a “clear abuse of discretion,”

Ampersand, 43 F.4th at 1236 (quoting Wylie, 934 F.2d at

236), when the Board denied the Union’s “several

extraordinary remedies” because traditional ones sufficed

here. Thus, we deny the Union’s Petition for Review.

2. The Company’s Challenges to the Board’s

Make-Whole Relief

Macy’s argues that the Board erred in finding that it was

liable throughout the lockout and in awarding the Union’s

make-whole relief pursuant to Thryv, Inc.,

372 N.L.R.B. No. 22, slip op. at 1 (Dec. 13, 2022)

(clarifying that “make-whole relief” includes compensation

“for all direct or foreseeable pecuniary harms” to affected

employees), order vacated in part on other grounds,

102 F.4th 727 (5th Cir. 2024). 8 On June 4, 2024, the NLRB

8

Macy’s also argues that the Board erred by retroactively applying Thryv

to award the Union’s make-whole remedy. On appeal, this argument is

barred because Macy’s neither raised it first in a motion for

reconsideration before the Board nor showed any extraordinary

circumstances here. See 29 U.S.C. § 160(e) (“No objection that has not

been urged before the Board, its member, agent, or agency, shall be

considered by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary circumstances.”);

see also NLRB v. Legacy Health Sys., 662 F.3d 1124, 1127 (9th Cir.

32 INT’L UNION OF OPERATING ENGINEERS V. NLRB

filed its Rule 28(j) letter, apprising this Court of the Fifth

Circuit’s May 24, 2024 opinion in Thryv, Inc. v. NLRB,

102 F.4th 727 (5th Cir. 2024), which did not address the

merits of the Board’s revised make-whole relief. We note

that, “[a]s far as we can tell, this is a question of first

impression for the Ninth Circuit . . . .” United Steel Workers

of Am. AFL-CIO-CLC v. NLRB, 482 F.3d 1112, 1115 n.4

(9th Cir. 2007). We conclude that the Board did not clearly

abuse its discretion in ordering make-whole relief. Thryv’s

make-whole framework is valid when the remedies are

equitable and “only actual losses [are] made good.” Phelps

Dodge, 313 U.S., at 194. In other words, Thryv remedies

must be “sufficiently tailored to expunge only the actual, and

not merely speculative, consequences of the unfair labor

practices.” See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900

(1984) (describing this principle as “cardinal”).

i. The Company’s Liability During the

Entirety of the Lockout

Macy’s insists that it cured the taint of its lockout by

tendering its December 10, 2020 wage proposal to the

Union, three days after the lockout began. We disagree.

“We review the Board’s finding of taint for substantial

evidence.” Denton Cnty. Elec. Coop., Inc. v. NLRB,

962 F.3d 161, 168 (5th Cir. 2020) (citations omitted). “[T]o

cure a lockout, the employer must restore the status quo ante

as well as end the lockout.” Alden Leeds, 812 F.3d at 166

(citing Greensburg Coca-Cola Bottling Co.,

311 N.L.R.B. 1022, 1029 (1993), enforcement denied on

2011) (“Section 10(e) . . . bars judicial review of a newly minted

objection to a remedial order when a party fails to move for

reconsideration of the Board’s sua sponte modification.” (citations

omitted)).

INT’L UNION OF OPERATING ENGINEERS V. NLRB 33

other grounds, 40 F.3d 669 (3d Cir. 1994)). “[A] lockout

unlawful at its inception retains its initial taint of illegality

until it is terminated and the affected employees are made

whole.” Movers & Warehousemen’s Ass’n of Metro. Wash.,

D.C., Inc., 224 N.L.R.B. 356, 357 (1976) (emphasis added),

enforced, 550 F.2d 962, 966 (4th Cir. 1977) (“We think it

dispositive of the issue that the employers here failed to

dissipate the effects of their unlawful lockout.”), cert.

denied, 434 U.S. 826 (1977). Substantial evidence supports

the Board’s finding that the lockout’s taint “was not cured

when Macy’s presented the Union with its new wage

proposal on December 10,” because that offer neither

terminated the lockout nor made the affected employees

whole.

We recognize, however, that Macy’s may “avoid further

liability if it is able to show affirmatively that a failure to

restore the status quo ante did not adversely affect

subsequent bargaining.” Alden Leeds, 812 F.3d at 166

(emphasis added) (quoting Greensburg Coca-Cola,

311 N.L.R.B. at 1029). It is the Company’s burden—not the

Union’s or the NLRB General Counsel’s—“to show that its

failure to restore the status quo ante had no adverse impact

on the subsequent collective bargaining.” Movers,

224 N.L.R.B. at 358. This burden requires Macy’s “to

disentangle the consequences for which it was chargeable

from those from which it [was] immune.” Id. (quoting NLRB

v. Remington Rand, 94 F.2d 862, 872 (2d Cir. 1938), cert.

denied, 304 U.S. 576 (1938)). The ALJ found that Macy’s

failed to carry its burden to make this affirmative showing.

Indeed, the ALJ observed that, at the hearing, “[n]o such

evidence was presented” by Macy’s.

Macy’s counters that these erroneous findings “ignore[]

substantial evidence that the parties negotiated in good faith

34 INT’L UNION OF OPERATING ENGINEERS V. NLRB

after the lockout.” According to Macy’s, “[i]f the lockout

had adversely impacted the parties’ ongoing bargaining, then

the [r]ecord would show . . . the Union was forced to accept

a substandard proposal because of the lockout.” However,

Macy’s misunderstands the standard. The fact that the

record does not show the Union’s acceptance of a

substandard proposal does not on its own satisfy the

Company’s burden of showing “no adverse impact on the

subsequent collective bargaining.” Alden Leeds,

357 N.L.R.B. at 84 n.3 (emphasis added) (quoting Movers,

224 N.L.R.B. at 358). The ALJ found that even the “limited

evidence in the record” relating to the subsequent bargaining

indicated that the Union made concessions, which were

indicative of its weakened position because of the

Company’s unlawful lockout. Those concessions included

an offer to cap wage rates at the levels proposed in the Final

Offer as well as proposals to “delete two engineer

classifications from the contract, and further delete a section

from the agreement that required Macy’s to contribute over

$500 per engineer to a training fund.” Instead of addressing

these concessions, Macy’s maintains that no inferior offer

was accepted by the Union. These concessions represent

substantial evidence in support of the ALJ’s finding. “In

these circumstances, without a cessation of the lockout and

a restoration of the status quo ante, it is difficult to conclude

that any bargaining which ensued was not adversely

affected[.]” 9 Movers, 224 N.L.R.B. at 358 (first and third

9

Under the NLRA, when negotiations fail, there is no “compulsion to

reach agreement.” Amax, 453 U.S. at 336 (citations omitted). Macy’s

needed to demonstrate that the lockout “did not adversely affect

subsequent bargaining[,]” not subsequent contracting. Alden Leeds,

812 F.3d at 166 (emphasis added) (quoting Greensburg Coca-Cola,

311 N.L.R.B. at 1029).

INT’L UNION OF OPERATING ENGINEERS V. NLRB 35

emphases added). We conclude that substantial evidence

supports the ALJ’s findings, as adopted by the Board, that

Macy’s unlawful lockout placed the Union in a weakened

bargaining position, and that Macy’s failed to satisfy its

burden of showing otherwise.

ii. The Board’s Revised Make-Whole

Remedial Framework

In Thryv, the Board “standardiz[ed] [its] make-whole

relief to expressly include the direct or foreseeable pecuniary

harms suffered by affected employees . . . .” 10

372 N.L.R.B. No. 22, slip op. at 7. The Board noted that

“‘direct harms’ are those in which an employee’s ‘loss was

the direct result of the [employer’s] illegal conduct,’” id. at

13 (quoting BRC Injected Rubber Prods., Inc.,

311 N.L.R.B. 66, 66 n.3 (1993)), and that “foreseeable

harms” are “those which the [employer] knew or should

have known would be likely to result from its violation of

the Act, regardless of its intentions,” id. Macy’s argues that

the compensation for “direct or foreseeable pecuniary

harms” as contemplated by Thryv would be improper

“compensatory damages,” “consequential damages,” or

“make-whole relief.”

“[V]esting in the Board the primary responsibility and

broad discretion to devise remedies . . . , subject only to

10

In response to the Court’s order requesting supplemental briefing,

Macy’s argues that under the Supreme Court’s recent opinion in SEC v.

Jarkesy, 603 U.S. 109 (2024), it is entitled to a jury trial on the so-called

“Thryv remedies.” Macy’s failed to raise a Seventh Amendment

objection to the Board, see 29 U.S.C. § 160(e), and it similarly failed to

raise any Seventh Amendment arguments in this Court until prompted to

do so by the Court’s order. We therefore decline to entertain this

argument. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

36 INT’L UNION OF OPERATING ENGINEERS V. NLRB

limited judicial review,” Sure-Tan, 467 U.S at 898–99

(collecting cases), Section 10(c) of the NLRA empowers the

Board to “take any ‘affirmative action’ that ‘will effectuate

the policies’ of the Act,” Ampersand, 43 F.4th at 1238 (first

quoting 29 U.S.C. § 160(c); then citing Va. Elec.,

319 U.S. at 539–40). We will not disturb the Board’s

remedial order, “unless it can be shown that the order is a

patent attempt to achieve ends other than those which can

fairly be said to effectuate the policies of the Act.” Va. Elec.,

319 U.S. at 540. Macy’s makes no such showing here.

After “careful consideration” of both its “remedial

authority” and “history of addressing the effects of unfair

labor practices,” the Board in Thryv clarified and

standardized its definition of “make-whole relief” to

“expressly include the direct or foreseeable pecuniary harms

suffered by affected employees” to “more fully effectuate

the make-whole purposes of the Act.” 372 N.L.R.B. No. 22,

slip op. at 7. We agree that make-whole relief, as a general

matter, furthers the policy of the NLRA because it is

“directly targeted” at the Company’s unlawful lockout and

aimed at “restor[ing] the economic strength that is necessary

to ensure a return to the status quo ante at the bargaining

table.” Ampersand, 43 F.4th at 1238 (alteration in original)

(citation omitted).

According to Macy’s (and the partial dissent), the

Board’s decision in Thryv improperly authorizes itself to

award full compensatory damages. Macy’s contends that

“the Board lacks the authority to award damages for

purportedly foreseeable financial harms.” See, e.g.,

UAW-CIO v. Russell, 356 U.S. 634, 642–43 (1958) (“The

power to order affirmative relief under [Section] 10(c) is

merely incidental to the primary purpose of Congress to stop

and to prevent unfair labor practices. Congress did not

INT’L UNION OF OPERATING ENGINEERS V. NLRB 37

establish a general scheme authorizing the Board to award

full compensatory damages for injuries caused by wrongful

conduct.” (citation omitted)).

We agree that the NLRB is not authorized to award

“consequential damages.” See Partial Dissent at 52. The

NLRB “does not pursue the ‘adjudication of private rights.’

Rather, it ‘acts in a public capacity to give effect to the

declared public policy of the Act . . . .’” EEOC v.

Occidental Life Ins. Co. of Cal., 535 F.2d 533, 538 (9th Cir.

1976) (alteration in original) (quoting Nat’l Licorice Co. v.

NLRB, 309 U.S. 350, 362 (1940)), aff’d, 432 U.S. 355

(1977). The broad “grant of remedial power” under the Act

also “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.” 11 NLRB v. Strong,

393 U.S. 357, 359 (1969) (cleaned up).

11

Significantly, the Board remains within its orbit here because its

make-whole relief is designed “solely to ‘restore the status quo[,]’” so it

is equitable in nature. Jarkesy, 603 U.S. at 123 (quoting Tull v. United

States, 481 U.S. 412, 422 (1987) (“Remedies intended to punish

culpable individuals, as opposed to those intended simply to extract

compensation or restore the status quo, were issued by courts of law, not

courts of equity.”)).

The Board specifically states that its “make-whole remedies do not

punish bad actors, but rather implement the statutory principles of

rectifying the harms actually incurred by the victims of unfair labor

practices and restoring them to where they would have been but for the

unlawful conduct.” Thryv, 372 N.L.R.B. No. 22, slip op. at 11. We

agree because “[t]he instant case”—where no actual remedies or

monetary relief have been ordered—“is not a suit at common law or in

38 INT’L UNION OF OPERATING ENGINEERS V. NLRB

But the NLRB has not awarded such damages here. We

therefore conclude that the Board’s invocation of Thryv’s

make-whole relief framework in this case vindicates a public

right. See Va. Elec., 319 U.S. at 543 (“The instant

reimbursement order is not a redress for a private wrong.

Like a back pay order it does restore to the employees in

some measure what was taken from them because of the

[c]ompany’s unfair labor practices.” (emphasis added)).

“The fact that these proceedings (may) operate to confer an

incidental benefit on private persons does not detract from

this public purpose.” Occidental Life, 535 F.2d at 538

(citation omitted). To the extent that the Board’s

make-whole relief “somewhat resemble[s] compensation for

private injury,” that compensation is merely incidental to

“the effectuation of the policies of the Act” because the

remedy is primarily “designed to aid in achieving the

elimination of industrial conflict[,]” vindicating “public, not

the nature of such a suit.” NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1, 48 (1937).

That any make-whole remedy must be “sufficiently tailored to the

actual, compensable injuries suffered,” Sure-Tan, 467 U.S. at 901,

contrary to the partial dissent’s view, also does not equate to the

improper “adjudication or vindication of private rights,” Haleston Drug

Stores v. NLRB, 187 F.2d 418, 420 (9th Cir. 1951), cert. denied,

342 U.S. 815 (1951); see also Amalgamated Util. Workers v. Consol.

Edison Co. of N.Y., 309 U.S. 261, 269–70 (1940) (“It is the Board’s right

to make that order that the court sustains. The Board seeks enforcement

as a public agent, not to give effect to a ‘private administrative remedy’.

Both the order and the decree are aimed at the prevention of the unfair

labor practice.”). Instead, it merely underscores how the remedy is “an

incident to [permissible] equitable relief,” Jones & Laughlin, 301 U.S. at

48, which “eschews mechanical rules and depends on flexibility,”

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975) (cleaned up).

INT’L UNION OF OPERATING ENGINEERS V. NLRB 39

private rights.” 12 Va. Elec., 319 U.S. at 543 (first citing

Agwilines, 87 F.2d at 150–51; then citing Phelps Dodge,

12

On December 27, 2024, the Third Circuit issued its opinion in NLRB

v. Starbucks Corp., --- F.4th ----, No. 23-1953, 2024 WL 5231549

(3d Cir. Dec. 27, 2024), granting the Board’s petition to enforce its order,

yet vacating the Thryv remedies for exceeding the Board’s authority

under the NLRA. Unlike the partial dissent, we do not view Starbucks

as wholly in conflict with today’s opinion. Like the Third Circuit, we

agree and recognize that the NLRB has long ordered, and still may order,

monetary relief akin to backpay. Starbucks, --- F.4th ----,

2024 WL 5231549, at *11–12. We also agree, as we have emphasized,

that any make-whole relief must be equitable in nature. Id. As the Third

Circuit acknowledges, any monetary relief ordered by the NLRB must

be a form of restitution addressing the result of the employer’s violation

of the NLRA. See, e.g., id. at *11 (“The Board can still award monetary

relief based on what the employer withheld as a result of an unfair labor

practice.” (emphasis added)); accord Partial Dissent at 52; see also

Phelps Dodge, 313 U.S. at 198 (“[O]nly actual losses should be made

good[.]”).

However, to the extent that the Third Circuit’s opinion could be read

to invalidate any form of monetary relief because it “resembles an order

to pay damages,” we disagree. Starbucks, --- F.4th ----,

2024 WL 5231549, at *12 (emphasis added) (citing Damages, Black’s

Law Dictionary (12th ed. 2024) (defining “damages” as “[m]oney . . .

ordered to be paid to[] a person as compensation for loss or injury”)).

Resemblance alone cannot be dispositive, where Congress’s express

grant of broad authority to the NLRB to fashion appropriate remedies,

see 29 U.S.C. § 160(c), and those remedies’ nature and purpose, indicate

that make-whole relief can operate “[l]ike a back pay order” that

does restore to the employees in some measure what

was taken from them because of the Company’s unfair

labor practices. In this both these types of monetary

awards somewhat resemble compensation for private

injury, but it must be constantly remembered that both

are remedies created by statute—the one explicitly

40 INT’L UNION OF OPERATING ENGINEERS V. NLRB

313 U.S. 177). After all, the NLRA’s overriding policy is

“industrial peace.” Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 38 (1987) (quoting Brooks v. NLRB,

348 U.S. 96, 103 (1954)).

Accordingly, compensation for “direct or foreseeable

pecuniary harms,” so long as it is equitable, would allow for

“a restoration of the situation, as nearly as possible, to that

which would have obtained but for” the unlawful lockout

here. Phelps Dodge, 313 U.S. at 194. As such, the Board’s

remedial order is not “a patent attempt to achieve ends other

and the other implicitly in the concept of effectuation

of the policies of the Act—which are designed to aid

in achieving the elimination of industrial conflict.

They vindicate public, not private rights.

Va. Elec., 319 U.S. at 543 (emphases added) (first citing Agwilines,

87 F.2d at 150–51; then citing Phelps Dodge, 313 U.S. 177); see also

Russell, 356 U.S. at 643 (quoting the same). Any permissible Thryv

remedy must therefore operate like like a backpay order, serving to

effectuate the policies of the Act by eliminating industrial conflict and

giving something akin to restitution—in other words, it must be

equitable. See Curtis, 415 U.S. at 197 (“[C]ourts of appeals have

characterized back pay as an integral part of an equitable remedy, a form

of restitution.”); see also Restitution, Black’s Law Dictionary (12th ed.

2024) (defining “restitution” as “[r]eturn or restoration of some specific

thing to its rightful owner or status”). Such remedies only incidentally

compensate employees to “insure meaningful bargaining,” Fibreboard

Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964), and to “restore

the economic strength that is necessary to ensure a return to the status

quo ante at the bargaining table,” Ampersand, 43 F.4th at 1238 (cleaned

up) (citation and alteration omitted); see also supra note 11. “For this

reason it is erroneous to characterize” equitable Thryv remedies “as

penal or as the adjudication of a mass tort. It is equally wrong to fetter

the Board’s discretion by compelling it to observe conventional common

law or chancery principles in fashioning” the make-whole relief here.

Va. Elec., 319 U.S. at 543.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 41

than those which can fairly be said to effectuate the policies

of the Act.” 13 Va. Elec., 319 U.S. at 540. We will not

disturb the Board’s remedial order here, where “both the

terms of the Act and the case law construing the Act support

the Board’s action in this case,” and there has been no

showing of any actual, issued remedy that is inequitable.

King Soopers, Inc. v. NLRB, 859 F.3d 23, 38 (D.C. Cir.

2017) (collecting cases); see also id. at 37 (“The Board is

entitled to considerable deference in crafting remedies for

unfair labor practices, and the reasons given by the Board to

13

To the extent that Macy’s argues that “Thryv grants the Board

unfettered discretion to determine whether a pecuniary loss is direct or

foreseeable,” we disagree because the Supreme Court has previously

acknowledged that “Section 10(c) . . . was intended to give the National

Labor Relations Board broad authority to formulate appropriate

remedies[,]” Loc. 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC,

478 U.S. 421, 446 n.26 (1986) (emphasis added), and that:

[I]n the nature of things Congress could not catalogue

all the devices and stratagems for circumventing the

policies of the Act. Nor could it define the whole

gamut of remedies to effectuate these policies in an

infinite variety of specific situations. Congress met

these difficulties by leaving the adaptation of means to

end to the empiric process of administration.

Phelps Dodge, 313 U.S. at 194 (emphasis added); see also Va. Elec.,

319 U.S. at 539 (emphasizing that the Board’s remedial power “is not

limited to the illustrative example of one type of permissible affirmative

order,” such as backpay, and cautioning that the “particular means by

which the effects of unfair labor practices are to be expunged are matters

‘for the Board not the courts to determine’” (first citing Phelps Dodge,

313 U.S. at 187, 189; then quoting Machinists, 311 U.S. at 82)).

42 INT’L UNION OF OPERATING ENGINEERS V. NLRB

justify the new make-whole remedial framework pass

muster.”). 14

Macy’s also contends that the “pecuniary damages that

[the Board] seeks to award are the wolf of consequential

damages in the sheep’s clothing of ‘make-whole’ relief.”

Macy’s asserts that this kind of relief here would be

prohibited consequential damages under United States v.

Burke, 504 U.S. 229 (1992), which is a tax consequence case

relating to an action under Title VII of the Civil Rights Act

of 1964 for sex-based discrimination in the payment of

salaries. Although not controlling in the NLRA context,

Burke demonstrates how the Board’s make-whole relief

under Thryv is appropriate here, contrary to the Company’s

assertion. For the below reasons, we find no reason to

disturb the Board’s remedy, when it serves to “more fully

effectuate the make-whole purposes of the Act.” Thryv,

372 N.L.R.B. No. 22, slip op. at 7.

The Supreme Court in Burke distinguished between

make-whole relief and damages recoverable under tort law.

It considered this distinction in the context of determining

whether a settlement payment relating to a backpay claim

arising under Title VII would be excludable from gross

income under the federal Internal Revenue Code (“IRC”), as

14

This is not Chevron deference. See Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright

Enters. v. Raimondo, 603 U.S. 369 (2024). Rather, it is a reflection of

the discretion afforded by Congress to allow the Board to award

remedies it deems fit to effectuate policies of the Act. See Phelps Dodge,

313 U.S. at 194 (“Because the relation of remedy to policy is peculiarly

a matter for administrative competence, courts must not enter the

allowable area of the Board’s discretion and must guard against the

danger of sliding unconsciously from the narrow confines of law into the

more spacious domain of policy.”).

INT’L UNION OF OPERATING ENGINEERS V. NLRB 43

“damages received . . . on account of personal injuries.”

Burke, 504 U.S. at 230 (alteration in original) (quoting

26 U.S.C. § 104(a)(2)). To qualify for exclusion from gross

income under the IRC, the respondents had to show that

Title VII redressed a tort-like personal injury. Id. at 237.

The Supreme Court observed “one of the hallmarks of

traditional tort liability is the availability of a broad range of

damages” that are unavailable in both Title VII and NLRA

contexts. Id. at 235. Under tort law, one may be awarded

sums “larger than the amount necessary to reimburse actual

monetary loss sustained or even anticipated by the plaintiff,”

as well as those amounts redressing “intangible elements of

injury that are ‘deemed important, even though not

pecuniary in [their] immediate consequence[s].’” Id.

(alterations in original) (emphases added) (quoting D.

Dobbs, Law of Remedies 136 (1973)). Thryv does not

provide such relief. After all, relief under either the NLRA

or “Title VII focuses on ‘legal injuries of an economic

character[.]’” Id. at 239 (quoting Albemarle Paper,

422 U.S. at 418); see also Golden State Bottling Co. v.

NLRB, 414 U.S. 168, 188 (1973) (“[A]n order requiring

reinstatement and backpay is aimed at ‘restoring the

economic status quo that would have obtained but for the

company’s wrongful refusal to reinstate . . . .’” (quoting

NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263

(1969))).

As the partial dissent points out, the Supreme Court in

Burke also observed that Title VII “restor[es] victims,

through backpay awards and injunctive relief, to the wage

and employment positions they would have occupied absent

the unlawful discrimination[,]” but not for nonpecuniary

harms, including “other traditional harms associated with

personal injury, such as pain and suffering, emotional

44 INT’L UNION OF OPERATING ENGINEERS V. NLRB

distress, harm to reputation, or other consequential damages

(e.g., a ruined credit rating).” Burke, 504 U.S. at 239

(emphasis added) (citation omitted). Macy’s argues that

these “express limitations in Burke apply with equal force to

Section 10(c) of the Act,” because Title VII’s backpay

provision was expressly modeled on the NLRA’s. See

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843,

848–49 (2001) (noting that Title VII’s backpay provision,

42 U.S.C. § 2000e-5(g)(1), “closely tracked the language”

of the Act’s backpay provision, 29 U.S.C. § 160(c), which

gives courts “guidance as to the proper meaning of the same

language”). Even if we accept this comparison, the Board’s

make-whole relief is consistent with both Title VII’s, which

it need not follow in this context, and the NLRA’s, which it

must. For example, “Congress directed the thrust of

[Title VII] to the consequences of employment practices,”

Albemarle Paper, 422 U.S. at 422 (emphasis added)

(quoting Griggs v. Duke Power Co., 401 U.S. 424, 432

(1971)), with a “clear purpose . . . to bring an end to the

proscribed discriminatory practices and to make whole, in a

pecuniary fashion, those who have suffered by it,” Bowe v.

Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969)

(emphases added), as amended on denial of reh’g (Oct. 29,

1969). Similarly, under the NLRA, the Board’s “power to

command affirmative action is remedial, not punitive, and is

to be exercised in aid of the Board’s authority to restrain

violations and as a means of removing or avoiding the

consequences of violation where those consequences are of

a kind to thwart the purposes of the Act.” Consol. Edison

Co. of N.Y. v. NLRB, 305 U.S. 197, 236 (1938) (emphasis

added); see also Albemarle Paper, 422 U.S. at 417–18 (“If

employers faced only the prospect of an injunctive order,

they would have little incentive to shun practices of dubious

INT’L UNION OF OPERATING ENGINEERS V. NLRB 45

legality. It is the reasonably certain prospect of a backpay

award that provides the spur or catalyst which causes

employers and unions to self-examine and to self-evaluate

their employment practices . . . .” (cleaned up)); Thryv,

372 N.L.R.B. No. 22, slip op. at 11 (articulating similar

principles).

Moreover, the Board acknowledged that it “will not issue

remedial orders for harms which are unquantifiable,

speculative, or nonspecific.” Thryv, 372 N.L.R.B. No. 22,

slip op. at 12 (emphasis added) (citing Nortech Waste,

336 N.L.R.B. 554, 554 n.2 (2001)). In Thryv, the Board

addressed that any make-whole relief comprised of direct or

foreseeable pecuniary harms will be fully litigated in a later

compliance proceeding. See id. at 11–12. The NLRB

General Counsel will have to prove whether any such relief

is “not speculative,” and that it is “specific and easily

ascertained.” Nortech Waste, 336 N.L.R.B. at 554 n.2. We

conclude that a remedial framework that “specifically

leav[es] to the compliance stage of the proceeding the

question of whether the employees incurred” direct or

foreseeable pecuniary harms “attributable” to the

Company’s unlawful lockout, id., is not a clear abuse of

discretion here. In other words, any later pecuniary order

“must be sufficiently tailored to expunge only the actual, and

not merely speculative, consequences of the unfair labor

practices.” Sure-Tan, 467 U.S. at 900 (citation omitted));

Phelps Dodge, 313 U.S. at 198 (“[O]nly actual losses should

be made good[.]”).

Under the NLRA, Congress’s grant of remedial power

entrusts the Board to make “workers whole for losses

suffered on account of an unfair labor practice . . . .” Strong,

393 U.S. at 359 (quoting Phelps Dodge, 313 U.S. at 197);

see also id. (“Back pay is one of the simpler and more

46 INT’L UNION OF OPERATING ENGINEERS V. NLRB

explicitly authorized remedies utilized to attain this end.”

(emphasis added)). We conclude that the Board’s

framework for compensation “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,” is within the Board’s broad

discretion of what “can fairly be said to effectuate the

policies of the Act,” Va. Elec., 319 U.S. at 540, by restoring

“the situation, as nearly as possible, to that which would

have occurred but for the violation,” Kallmann, 640 F.2d at

1103 (citing Phelps Dodge, 313 U.S. at 194). The Board’s

“order clearly falls within the general purpose of making the

employees whole, and thus restoring the economic status

quo that would have obtained but for” the Company’s

unlawful lockout. J.H. Rutter-Rex Mfg., 396 U.S. at 263.

“Imposing such remedies, designed to respond directly to an

unfair labor practice, falls squarely within the heartland of

the NLRB’s delegated powers.” Ampersand, 43 F.4th at

1238 (cleaned up). Accordingly, on the record as a whole,

“we have no reason to find that the Board’s decision to

change its remedial framework is ‘a patent attempt to

achieve ends other than those which can fairly be said to

effectuate the policies of the Act.’” King Soopers, 859 F.3d

at 39 (quoting Fibreboard Paper, 379 U.S. at 216).

Therefore, to the extent that Macy’s challenges the

Board’s revised make-whole remedial framework, 15 we

deny its Petition for Review.

15

As discussed, any remedies it does order must be equitable, specific,

and only make “actual losses … good.” Phelps Dodge, 313 U.S. at

198. Macy’s can also raise its forfeited or waived arguments in the

subsequent compliance proceeding.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 47

D. The Circumstances Here Disclosed

The partial dissent contends that the Board’s “actions

were arbitrary and capricious and unsupported by the

record.” Partial Dissent at 55. However, applying the law

as it is, not as what the partial dissent wishes it to be, reveals

that they were simply not. See Danielson v. Inslee,

945 F.3d 1096, 1103 (9th Cir. 2019); see also Dayton v.

Peck, Stow & Wilcox Co., 739 F.2d 690, 694 (1st Cir. 1984).

Our task is to “evaluate the entire record and uphold the

NLRB if a reasonable jury could have reached the same

conclusion, even if we would justifiably have made a

different choice under de novo review.” Int’l All. of

Theatrical Stage Emps., Loc. 15 v. NLRB, 957 F.3d 1006,

1013 (9th Cir. 2020) (emphasizing the standard of review)

(cleaned up). For example, while it is possible to infer that

the Company’s lockout could have been informed by

“enormous logistical difficulties,” Partial Dissent at 83, the

weighing of such evidence belongs to the Board, which “has

special expertise in drawing inferences of credibility and

unlawful motive, and [whose] determinations are entitled to

judicial deference,” Kava Holdings, 85 F.4th at 486 (cleaned

up). Here, substantial evidence supports the Board’s

consideration and conclusion of the credibility and value of

such evidence. See Int’l All. of Theatrical Stage Emps.,

957 F.3d at 1013 (“Evidence is substantial when a

reasonable mind might accept it as adequate to support a

conclusion—even if it is possible to draw a contrary

conclusion from the evidence.” (cleaned up)); see also

29 U.S.C. § 160(e) (“The findings of the Board with respect

to questions of fact if supported by substantial evidence on

the record considered as a whole shall be conclusive.”

(emphasis added)); Starbucks, --- F.4th ----,

2024 WL 5231549, at *6 n.2 (noting that a judge on the

48 INT’L UNION OF OPERATING ENGINEERS V. NLRB

panel doubted the NLRB’s factual conclusions, but he

recognized that because there is “more than a scintilla” of

evidence to support the NLRB’s “contrary conclusions,” the

court is “bound by the substantial evidence standard of

review,” so it is barred from “explor[ing] the other ways of

reading [the] record” (citation omitted)).

Similarly, while the partial dissent raises potentially

significant points about the scope of make-whole relief

under Thryv, Macy’s neither properly challenged Thryv’s

retroactivity or the Seventh Amendment’s application to this

case nor showed “extraordinary circumstances” to warrant

consideration of these issues. See supra notes 8, 10; see also

29 U.S.C. § 160(e); Legacy Health Sys., 662 F.3d at 1127;

cf. Starbucks, --- F.4th ----, 2024 WL 5231549, at *12

(holding that the employer’s “statutory interpretation and

Seventh Amendment challenges were not forfeited”). More

critically, the Board has yet to order specific forms of relief,

including those the partial dissent lambasts as “virtually

unlimited.” See Partial Dissent at 61. Such costs could be

beyond the Board’s remedial authority. See id. (listing

examples including “day care costs, specialty tool costs,

utility disconnection/reconnection fees, relocation/moving

costs, legal representation costs in eviction proceedings, and

expenses resulting from a change in immigration status”).

Only actual “losses suffered on account of an unfair labor

practice … should be made good.” Phelps Dodge, 313 U.S.

at 197–98. And, indeed, the Board must still establish, in a

later proceeding, how any make-whole relief it seeks is

equitable or “sufficiently tailored to the actual, compensable

injuries suffered” by the employees in this case. Sure-Tan,

467 U.S. at 901.

It also bears repeating that “[i]n fashioning an

appropriate remedy to address the substantial unfair labor

INT’L UNION OF OPERATING ENGINEERS V. NLRB 49

practices in this case, the Board was acting at the ‘zenith’ of

its discretion.” Fallbrook Hosp. Corp. v. NLRB,

785 F.3d 729, 738 (D.C. Cir. 2015) (quoting Niagara

Mohawk Power Corp. v. Fed. Power Comm’n,

379 F.2d 153, 159 (D.C. Cir. 1967)); accord 29 U.S.C.

§ 160(c) (authorizing the NLRB “to take such affirmative

action . . . as will effectuate the policies” of the Act).

Additionally, there has simply been “no showing that the

Board’s order restoring the status quo ante to insure

meaningful bargaining is not well designed to promote the

policies of the Act. Nor is there evidence which would

justify disturbing the Board’s conclusion that the order

would not impose an undue or unfair burden on the

Company.” Fibreboard Paper, 379 U.S. at 216. There has

also been no meaningful showing that as a result of an unfair

labor practice any make-whole relief in this case “exceed[s]

what the employer unlawfully withheld[,]” or is not “closely

tied to the equitable remedy of backpay.” Starbucks,

--- F.4th ----, 2024 WL 5231549, at *11–12; see also supra

note 13; accord Partial Dissent at 52.

One final note: the amended dissent claims that our

original opinion “accepted” the Board’s supposed “power

grab wholesale” and that we now attempt to “narrow the

Board’s authority to order relief in [this] amended opinion.”

Partial Dissent at 49. But nowhere in the plain text of our

original, or even amended, opinion did we provide such

maximalist language, and the dissent is unable to point to

any. 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, where

Macy’s can raise the arguments the dissent urges us to

consider now, despite strict procedural bars that preclude us

50 INT’L UNION OF OPERATING ENGINEERS V. NLRB

from doing so. We only applied the law as it is, compelled

by decades of precedent, not as what we wish, predict, or

think it to be.

In sum, we “decide[d] only the case before us and

sustain[ed] the power of the Board” to tailor remedies that

“effectuate the statutory purpose” behind the National Labor

Relations Act “under the circumstances here disclosed.”

Va. Elec., 319 U.S. at 543, 545 (emphasis added); see also

Intalco Aluminum Corp. v. NLRB, 417 F.2d 36, 42 n.17

(9th Cir. 1969) (acknowledging that in Virginia Electric, the

Supreme Court found that it “need not examine the various

situations in those cases ‘or consider hypothetical

possibilities’” (quoting Va. Elec., 319 U.S. at 545)); NLRB

v. Reed & Prince Mfg. Co., 118 F.2d 874, 891 (1st Cir.

1941) (“We therefore think that under the circumstances

here disclosed the broader prohibition as appears in . . . the

Board’s order is within the discretion of the Board and

should be enforced.” (emphasis added)), cert. denied,

313 U.S. 595 (1941).

IV. CONCLUSION

We have considered the Union’s and the Company’s

remaining arguments and find them unpersuasive. For the

foregoing reasons, we DENY both the Union’s and the

Company’s Petitions for Review, and we GRANT the

Board’s Cross-Application for Enforcement of its final

Order.

PETITIONS FOR REVIEW DENIED;

CROSS-APPLICATION FOR ENFORCEMENT

GRANTED; ORDER ENFORCED.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 51

BUMATAY, Circuit Judge, dissenting in part:

This case involves the fallout from a lengthy labor

dispute between Macy’s and the International Union of

Operating Engineers, Local 39 (“Union”), which represents

some of the retailer’s engineers and craftsmen. After

extensive negotiations over a new collective bargaining

agreement, Macy’s gave the Union its best and final offer.

The Union rejected that offer and went on strike. During the

three-month strike, Macy’s accused Union members of

harassing its customers and employees and sabotaging its

facilities. The Union then made a surprise unconditional

offer to return to work—shortly before the close of business

on a Friday evening. Macy’s pleaded for time to respond to

the offer, but the Union refused. So when the Union

members showed up for work on Monday—the next

workday—Macy’s did not let them start working and locked

them out. Two days later, Macy’s gave the Union a new

proposal to end the dispute and lockout. The Union again

rejected Macy’s offer, and the two sides never reached an

agreement.

Enter the National Labor Relations Board. The Board’s

in-house prosecutor charged Macy’s with an “unfair labor

practice.” After a hearing, a Board Administrative Law

Judge (“ALJ”) systematically rejected each of Macy’s

defenses and found that Macy’s violated the National Labor

Relations Act (“Act”) because it waited a whole two days

before it gave a new offer to the Union. As punishment, the

ALJ ordered Macy’s to make the Union members whole for

any losses of pay and benefits that they may have suffered

because of the lockout. Macy’s, Inc., 372 NLRB No. 42, at

21 (2023). On review, the Board agreed with the ALJ that

Macy’s violated the Act. But it rejected the ALJ’s remedy

52 INT’L UNION OF OPERATING ENGINEERS V. NLRB

because it didn’t go far enough. Instead, the Board ordered

Macy’s to “also compensate the employees for any other

direct or foreseeable pecuniary harms incurred as a result of

the unlawful lockout . . . regardless of whether these

expenses exceed interim earnings.” Id. at 1 n.2 (emphasis

added). And because the Union and Macy’s still haven’t

come to an agreement, Macy’s must compensate the Union’s

members for ongoing harms accumulating to this day—more

than four years since the lockout.

But the Board has no authority to order this type of

monetary relief. Until three years ago, the Board had never

claimed the authority to award consequential damages, like

the ones ordered against Macy’s. See Thryv, Inc., 372 NLRB

No. 22 (2022), overruled on different grounds, Thryv, Inc. v.

NLRB, 102 F.4th 727 (5th Cir. 2024). Indeed, the Act

restricts the Board to ordering only “back pay” and

“affirmative action . . . as will effectuate the policies of” the

Act. See 29 U.S.C. § 160(c). Somehow, the Board has

transformed this limited statutory grant into something that

covers credit card debt, withdrawals from retirement

accounts, car loans, mortgage payments, childcare,

immigration expenses, and medical expenses. See, e.g.,

Thryv, Inc., 372 NLRB No. 22, at 9. Never mind that

granting the Board this authority would violate the Seventh

Amendment. We create a needless circuit split in affirming

the Board’s power grab. See NLRB v. Starbucks Corp., 125

F.4th 78, 97 (3d. Cir. 2024) (“While the Board can certainly

award some monetary relief to the employees, that relief

cannot exceed what the employer unlawfully withheld.”).

At first, the majority accepted this power grab wholesale.

See Int’l Union of Operating Engineers, Stationary

Engineers, Local 39 v. NLRB, 127 F.4th 58, 67 (9th Cir.

2025). Now, even the majority recognizes that the Board’s

INT’L UNION OF OPERATING ENGINEERS V. NLRB 53

assertion of power is too sweeping and seeks to narrow the

Board’s authority to order relief in its amended opinion.

Unfortunately, the majority doesn’t go far enough. While

the majority now tries to limit the Board to remedies that are

“equitable,” Am. Maj. Op. at 40, it still leaves the door open

for the Board to order foreseeable damages that are

untethered from the law. The Board has already ordered that

Macy’s “shall . . . 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, if any, regardless of

whether these expenses exceed interim earnings.” See

Macy’s, Inc., 372 NLRB No. 42 at 1 n.2. And the majority

offers no guidance on how to fashion “equitable” foreseeable

damages. Sure, the majority takes some of the most

egregious costs that the Board seeks to impose off the table,

such as “day care costs, specialty tool costs, utility

disconnection/reconnection fees, relocation/moving costs,

legal representation costs in eviction proceedings, and

expenses resulting from a change in immigration status.”

See Am. Maj. Op. 48 (simplified). But that leaves the Board

with a wide array of costs it may impose under Thryv, such

as “out-of-pocket medical expenses,” “credit card debt,”

“other costs . . . to make ends meet,” “interest and late fees

on credit cards,” “early withdrawal[ penalties] from . . .

retirement account[s],” “[car] loan or mortgage payments,”

and “transportation or childcare costs.” 372 NLRB No. at

*15. And slapping the label that those foreseeable damages

be “equitable” doesn’t cure the statutory violation here.

That’s because foreseeable or consequential damages are

fundamentally at odds with “equitable relief.” See Mertens

v. Hewitt Associates, 508 U.S. 248, 256-57 (1993)

(“‘equitable relief’ can also refer to those categories of relief

54 INT’L UNION OF OPERATING ENGINEERS V. NLRB

that were typically available in equity (such as injunction,

mandamus and restitution, but not compensatory

damages)”) (second emphasis added). Simply, under this

statute, the equitable relief available to employees is limited

to back pay and reinstatement.

And given the legal nature of foreseeable or

consequential damages, blessing the Board’s authority to

impose these remedies would implicate the Seventh

Amendment’s right to a jury trial. U.S. Const. amend. VII.

This concern is heightened by the similarity between the

injury the Board seeks to remedy and the common-law tort

of wrongful termination. See SEC v. Jarkesy, 603 U.S. 109,

125 (2024). The majority would dispense with any concerns

about the legal nature of the Board’s remedial scheme by

declaring that the Board’s foreseeable-damages regime

“vindicates a public right.” See Am. Maj. Op. at 38. As an

alarming result—despite “declin[ing] to entertain” Macy’s

Seventh Amendment objection, see Am. Maj. Op. at 35

n.10—the majority’s dicta would seemingly foreclose any

Seventh Amendment challenge to the Board’s authority to

impose consequential or foreseeable pecuniary damages.

The majority just asserts that, so long as imposing

foreseeable damages would further “industrial peace,” we

apparently need not worry the relief takes a legal—not an

equitable—form. See id. at 40 (simplified). But the

majority’s vision of the public rights exception is much too

broad. The Court has reminded us that this exception is only

an exception. Jarkesy, 603 U.S. at 131. So “[e]ven with

respect to matters that arguably fall within the scope of the

‘public rights’ doctrine, the presumption is in favor of

Article III courts.” Id. at 132 (simplified). The limited

“public rights” exceptions recognized by the Court are based

on “centuries-old,” “background legal principles.” Id. at

INT’L UNION OF OPERATING ENGINEERS V. NLRB 55

131. And in Jarkesy, the Court refused to expand the list to

include administrative adjudications over conduct that

resembles “common law fraud.” Id. at 134. Thus, courts

should be reluctant to expand the exception beyond the

enumerated historical categories, especially those claims

with common law analogues and involving legal remedies.

See id. at 136.

The better course would have been to follow the Third

Circuit’s lead and nip this claim of expansive authority in the

bud.

And we never should have gotten this far. The Board’s

actions were arbitrary and capricious and unsupported by the

record. See Valley Hosp. Med. Ctr., Inc. v. NLRB, 100 F.4th

994, 1002 (9th Cir. 2024) (noting the standard of review

under 5 U.S.C. § 706(2)(A)). The Board wrongly concluded

that Macy’s needed to have a detailed proposal on the table

within one working day of the Union’s offer of return to

justify its lockout. This rule is as novel as it is unrealistic. It

contradicts both Ninth Circuit precedent and the Board’s

own precedent. The Board also ignored evidence that the

lockout could have been justified as defensive given Macy’s

reasonable concerns of sabotage and misconduct.

While I agree with denying the Union’s petition for

review, I respectfully dissent from the denial of Macy’s

petition for review and from the grant of the Board’s

application for enforcement.

56 INT’L UNION OF OPERATING ENGINEERS V. NLRB

I.

The Board Lacks Authority to Order Foreseeable or

Consequential Damages

A.

The Board is a limited-authority agency with a limited

purpose and limited enforcement mechanisms. “The Board

is not a court; it is not even a labor court; it is an

administrative agency charged by Congress with the

enforcement and administration of the federal labor laws.”

Shepard v. NLRB, 459 U.S. 344, 351 (1983). Simply, the

Board is not in the business of the “adjudication of private

rights.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 193

(1941) (simplified). Its only function is to “safeguard[] and

encourage[] the right of self-organization.” Id. Thus, the

Board was not established to award “full compensatory

damages for injuries caused by wrongful conduct.” Int’l

Union, United Auto., Aircraft & Agr. Implement Workers of

Am. (UAW-CIO) v. Russell, 356 U.S. 634, 642–43 (1958).

Instead, its authority to order relief is “merely incidental to

the primary purpose of Congress to stop and to prevent

unfair labor practices.” Shepard, 459 U.S. at 352. Given

this, the Board can’t award consequential or foreseeable

damages, which go beyond compensatory damages and

include damages for harms that do not flow directly from an

unfair labor practice. See Black’s Law Dictionary (12th ed.

2024) (defining “consequential damages” as those that “do

not flow directly and immediately from an injurious act but

that result indirectly from the act”).

Despite its limited authority, the Board has assumed

powers to award not only compensatory damages but all

foreseeable damages—a species of consequential damages.

In Thryv, the Board concluded that a company violated the

INT’L UNION OF OPERATING ENGINEERS V. NLRB 57

Act by unilaterally laying off six union employees and

refusing to comply with the union’s information requests.

372 NLRB No. 22, at 3–4. Rather than apply its standard

remedy to the case, the Board expanded its authority to

award monetary relief. The Board concluded “that in all

cases in which [its] standard remedy would include an order

for make-whole relief, the Board will expressly order that

the respondent compensate affected employees for all direct

or foreseeable pecuniary harms suffered as a result of the

respondent’s unfair labor practice.” Id. at 13 (emphasis

added). The Board then defined “direct harms” as monetary

losses that are the direct result of an unfair labor practice. Id.

In contrast, it defined “foreseeable harms” as “those which

the [employer] knew or should have known would be likely

to result from its violation of the Act, regardless of its

intentions.” Id. The Board has never included such broad,

indirect harm as part of its make-whole remedy. See id. at

18 (Kaplan & Ring, dissenting in part).

So what’s covered by “direct or foreseeable harm”?

Quite a lot, it turns out. While the Board declined “to

enumerate all the pecuniary harms that may be considered

direct or foreseeable in the myriad of unfair labor practices

that come before us[,]” they made clear it’s very expansive.

Id. at 12. The Board explained that foreseeable harms

include indirect costs, “such as out-of-pocket medical

expenses, credit card debt, or other costs simply in order to

make ends meet.” Id. at 9. The Board also made clear that

“penalties” related to “early withdrawals from [a] retirement

account,” “loan or mortgage payments,” and “transportation

or childcare costs” could all be fair game. Id. And this list

didn’t even represent the “limits of the Board’s statutory

remedial authority,” it’s only the “minimum” for make-

whole relief. Id. at 7 n.10 (emphasis added). The Board’s

58 INT’L UNION OF OPERATING ENGINEERS V. NLRB

General Counsel added even more costs to the list:

unreimbursed tuition payments, job search costs, day care

costs, specialty tool costs, utility disconnection/reconnection

fees, relocation/moving costs, legal representation costs in

eviction proceedings, and expenses resulting from a change

in immigration status. Office of the General Counsel

Memorandum GC 24-04, Securing Full Remedies for All

Victims of Unlawful Conduct (Apr. 8, 2024). 1 So now

everything is on the table under the Board’s newly claimed

authority—the only limit is the Board’s imagination.

Of course, the Board denied that these broad remedies

make up “consequential damages.” But that’s hard to

believe given that the Board specifically invited briefing on

whether it should adopt consequential damages as part of its

make-whole remedy in that very case. Thryv, Inc., 372

NLRB No. 22, at 6 n.8, 8. Indeed, the Board’s Chairman has

labeled as “consequential damages” harms such as late fees

on credit cards, penalties for early withdrawals from

retirement accounts, and the loss of a vehicle or home if an

employee is unable to make loan or mortgage payments. See

Voorhees Care & Rehab. Ctr., 371 NLRB No. 22, 4 n.14

(2021). Perhaps recognizing its overreach, the Board

pretends its adoption of a “foreseeable damages” standard is

something different than consequential damages. Yet the

only distinction the Board draws between the two is

observing that “consequential damages” is “a term of art

used to refer to a specific type of legal damages awarded in

other areas of the law.” Thryv, Inc., 372 NLRB No. 22, at 8.

Yes, it’s a term of art for tort and contracts law, but the Board

can’t simply put lipstick on the pig and call it “foreseeable

damages.” That doesn’t change its legal nature—it’s still

1

Available at https://perma.cc/P8CN-HZBS.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 59

consequential damages no matter how it’s spun. And, as the

Board admits, consequential damages are a remedy for

private rights—not the sort of thing that the Board may

vindicate.

The Board’s remedy proved to be too much for its entire

membership to stomach. Two members dissented. They

explained that the Board’s new remedial standard “would

permit recovery for any losses indirectly caused by an unfair

labor practice, regardless of how long the chain of causation

may stretch from unfair labor practice to loss, whenever the

loss is found to be foreseeable.” Id. at 16 (Kaplan & Ring,

dissenting in part). They warned that “this standard opens

the door to awards of speculative damages that go beyond

the Board’s remedial authority.” Id. First, they noted that

“‘foreseeability’ is a central element of tort law” and that

“[a]ny attempt to address tort claims in a Board proceeding

obviously runs headlong into the Seventh Amendment’s

guarantee of the right to have such claims tried before a

jury.” Id. at 18–19. Second, the dissent observed that the

Board’s foreseeable damages remedy “go[es] well beyond

tort law,” because the remedy wasn’t even limited by

proximate cause. Id. at 19. So, to the dissenting members,

the Board’s newly minted power is even greater than the

power to award consequential damages.

B.

The Board exceeded its authority in ordering Macy’s to

pay foreseeable or consequential damages. First, nothing in

the text of the Act authorizes such expansive authority for

the Board. Second, reading the Act to grant these broad

remedies, as the dissenting Board members noted, puts the

Board in conflict with the Seventh Amendment.

60 INT’L UNION OF OPERATING ENGINEERS V. NLRB

1.

Let’s start with the Board’s statutory authority to fashion

remedies for unfair labor practices. To remedy an unfair

labor practice, Congress granted the Board authority to:

[I]ssue and cause to be served on . . . [a]

person [who committed the unfair labor

practice] 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.

29 U.S.C. § 160(c). Thus, in all cases, the Board’s remedial

authority must further the policies of the Act, which are to:

[E]liminate the causes of certain substantial

obstructions to the free flow of commerce

and to mitigate and eliminate these

obstructions when they have occurred by

encouraging the practice and procedure of

collective bargaining and by protecting the

exercise by workers of full freedom of

association, self-organization, and

designation of representatives of their own

choosing, for the purpose of negotiating the

terms and conditions of their employment or

other mutual aid or protection.

29 U.S.C. § 151.

While an admittedly broad policy statement, it only

provides for vindication of public rights—not of private

INT’L UNION OF OPERATING ENGINEERS V. NLRB 61

rights, which consequential damages are designed to

remedy. Consistent with that understanding, the Supreme

Court recognized long ago that the Board’s functions are

“narrowly restricted to the protection and enforcement of

public rights” and that it thus has no role to play in the

“adjudication of private rights.” Nat’l Licorice Co. v. NLRB,

309 U.S. 350, 362–63 (1940). So even with the Board’s

power to fashion affirmative acts to carry out federal labor

policies, it can’t order relief that is “a patent attempt to

achieve ends other than those which can fairly be said to

effectuate the policies of the Act.” Va. Elec. & Power Co.

v. NLRB, 319 U.S. 533, 540 (1943). For example, the Board

isn’t vested with “a virtually unlimited discretion to devise

punitive measures” and it can’t “prescribe penalties or fines

which the Board may think would effectuate the policies of

the Act.” Republic Steel Corp. v. NLRB, 311 U.S. 7, 11

(1940). As Judge Learned Hand said long ago, “[t]he

‘affirmative action’ which the section contemplates must be

remedial, and not punitive or disciplinary . . . and the order,

qua payments, must therefore be confined to restitution for

the wrong done, however widely that should be conceived.”

NLRB v. Leviton Mfg. Co., 111 F.2d 619, 621 (2d Cir. 1940).

Thus, the Board’s authority begins and ends with the

enforcement of public rights—its role is not to vindicate the

private rights of aggrieved employees.

Even so, the Board expressly sought to vindicate private

rights in its Thryv decision. In adopting its consequential

damages or foreseeable harm regime, its goal was to

“rectify[] the harms actually incurred by the victims of unfair

labor practices.” Thryv, Inc., 372 NLRB No. 22, at 11. In

justifying the broad remedy, the Board noted the need to

assist “wrongfully-terminated employees [who] may incur

‘expenses for transportation, room, and board’” related to

62 INT’L UNION OF OPERATING ENGINEERS V. NLRB

their termination. Id. at 7 (simplified) (emphasis added).

This is no different than vindicating the private right against

wrongful termination, which falls outside the Act’s statutory

policies.

The Board also acknowledged its new remedy has a

compensatory—rather than restitutionary—purpose:

“making employees whole should include, at least,

compensating them for direct or foreseeable pecuniary

harms resulting from the [employer’s] unfair labor practice.”

Id. at 8 (emphasis added). And the Board reads “foreseeable

harms” as broadly as possible—it includes medical

expenses, credit card debts and fees, car payments, mortgage

payments, childcare costs, and transportation costs. See id.

at 9. These rectify individualized private harms at law. As

the Court has said, “one of the hallmarks of traditional tort

liability is the availability of a broad range of damages to

compensate the plaintiff ‘fairly for injuries caused by the

violation of his legal rights.’” United States v. Burke, 504

U.S. 229, 235 (1992) (simplified). All this shows that the

Board’s make-whole remedy goes far beyond

“effectuat[ing] the policies” of the Act. See 29 U.S.C. §

160(c). Instead, it vindicates private rights. And the Act

“limits the Board’s remedial authority to equitable, not legal,

relief.” Starbucks Corp., 125 F.4th at 95.

Besides violating the policies of the Act, the Board’s new

remedy also violates the text of the Act. The Board can issue

a “cease and desist” order and instruct the “reinstatement of

employees with or without back pay.” 29 U.S.C. § 160(c).

None of these express grants of power encompass the award

of foreseeable or consequential damages. Under the Board’s

“cease and desist” authority, it may enjoin “future conduct”

that would violate the Act. See NLRB v. C.E. Wylie Const.

Co., 934 F.2d 234, 237 (9th Cir. 1991). Yet injunctive power

INT’L UNION OF OPERATING ENGINEERS V. NLRB 63

doesn’t authorize the award of the damages it seeks now.

And the power to authorize “back pay” doesn’t provide the

Board with the ability to award consequential damages. In

this context, “back pay” means pay that is unpaid but due.

See A Dictionary of Modern American Usage at 17 (1935)

(defining “back pay” as an “arrears of a pay”); Webster’s

Collegiate Dictionary at 59 (1936) (defining “arrears” as

“that which is unpaid but due”). Together, the Act

authorizes the Board to remedy violations of unfair labor

practices by restoring wages and employment positions that

employees would have otherwise received in the absence of

unfair labor practices. But such injunctive relief and back

pay awards don’t provide the textual hook for the expansive

remedy sought here.

However broadly it’s possible to read the Board’s

remedial authority, Congress confirmed its narrow powers

through its Taft–Hartley amendments. See Labor

Management Relations Act of 1947, Pub. L. No. 80-101,

101, 61 Stat. 136, 147. In 1947, Congress amended § 160(c)

and precluded the Board from awarding remedies to an

employee “who had been discharged because of

misconduct.” See Fibreboard Paper Products Corp. v.

NLRB, 379 U.S. 203, 217 (1964). After the amendment,

§ 160(c) then said,

No order of the Board shall require the

reinstatement of any individual as an

employee who has been suspended or

discharged, or the payment to him of any back

64 INT’L UNION OF OPERATING ENGINEERS V. NLRB

pay, if such individual was suspended or

discharged for cause.

29 U.S.C. § 160(c) (emphasis added). Through this

amendment, Congress expressly set the universe of the

Board’s remedial power to grant monetary relief for

aggrieved employees—it’s limited to reinstatement and back

pay. If Congress intended the Board to have broader power

to direct monetary relief, such as ordering foreseeable or

consequential damages, it would have said so in this

provision. Otherwise, the Board would be precluded from

awarding back pay when the employee commits misconduct,

but it may still grant the same employee foreseeable or

consequential damages. This reading makes little sense.

Our duty is to interpret the law “as a symmetrical and

coherent regulatory scheme” and “fit, if possible, all parts

into an harmonious whole.” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) (simplified). The

best reading of § 160(c) then cabins the Board’s remedial

measures over employees and forecloses the Board from

ordering consequential or foreseeable damages. So while

the Board may have discretion to devise remedies to further

the Act, when ordering relief for individual employees, it’s

limited to reinstatement and back pay. This flows from the

Board’s narrow design to remedy only public rights.

The Board dismisses this textual restraint on its powers.

It does so by misreading Fibreboard Paper Products. In that

case, the Board ordered a company to resume certain

business operations, to reinstate terminated employees with

back pay, and to bargain with the union. 379 U.S. at 209. It

was argued in that case that the Board’s order violated

§ 160(c)’s prohibition against reinstatement and back pay for

employees “discharged for cause.” Id. at 217. As mentioned

INT’L UNION OF OPERATING ENGINEERS V. NLRB 65

earlier, the Court determined that the provision precluded the

Board from “reinstating an individual who had been

discharged because of misconduct.” Id. (emphasis added).

But the Court observed that the provision did not “curtail the

Board’s power in fashioning remedies when the loss of

employment stems directly from an unfair labor practice as

in the case at hand.” Id. (emphasis added). The Board takes

this language to green-light the award of consequential

damages. But it did nothing of the sort. Instead, with these

sentences, the Court distinguished between employees fired

because of misconduct and employees fired because of

unfair labor practices. The Court simply reinforced the

straightforward reading of the text—while the Taft–Hartley

amendment implicated the former, it had nothing to do with

the latter. Nowhere did the Court say that the Board could

disregard the obvious textual limitations on remediating

employees.

If there were any doubts as to the limits of the Board’s

authority, the Court laid them to rest in Burke. In that case,

the Supreme Court analyzed the remedies available under

Title VII—an employee anti-discrimination statute. See

Burke, 504 U.S. at 237–38 (analyzing 42 U.S.C. § 2000e–

2(a)(1)). Title VII is important here because its “remedial

scheme was expressly modeled on the backpay provision of

the National Labor Relations Act.” Id. at 240 n.10. Indeed,

Title VII’s remedial provision will look familiar. It’s nearly

identical to the Act’s:

[T]he court may enjoin the respondent from

engaging in such unlawful employment

practice, and order such affirmative action as

may be appropriate, which may include, but

is not limited to, reinstatement or hiring of

66 INT’L UNION OF OPERATING ENGINEERS V. NLRB

employees, with or without back pay . . . or

any other equitable relief as the court deems

appropriate.

42 U.S.C. § 2000e–5(g)(1).

Given their ties and similar language, we should follow

the Court’s reading of Title VII. The Court said, “Title VII

does not allow awards for compensatory or punitive

damages; instead, it limits available remedies to backpay,

injunctions, and other equitable relief.” Burke, 504 U.S. at

238. We should also follow how the Court defined the scope

of Title VII’s remedy: it “consists of restoring victims,

through backpay awards and injunctive relief, to the wage

and employment positions they would have occupied absent

the unlawful discrimination.” Id. at 239. Title VII doesn’t

permit the compensation of a “plaintiff for any of the other

traditional harms associated with personal injury, such as

pain and suffering, emotional distress, harm to reputation, or

other consequential damages (e.g., a ruined credit rating).”

Id. Indeed, “[n]othing in this remedial scheme purports to”

do so. Id. In the Court’s view, Title VII’s limited remedies

stood in contrast “to those available under traditional tort

law.” Id. at 240.

So let’s recap. Title VII and the Act have similar

purposes (the protection of employees), a similar remedial

design, and similar textual language. And the Supreme

Court has definitively established the remedies available

under Title VII. The obvious response is to give the Act a

similar reading. It’s baffling that the Board argues

otherwise.

But there’s more evidence of this commonsense reading.

In the Civil Rights Act of 1991, Congress amended Title VII

INT’L UNION OF OPERATING ENGINEERS V. NLRB 67

to expressly add “compensatory and punitive damages” to

its remedial scheme. See Pub. L. No. 102-166, 105 Stat.

1071; 42 U.S.C. § 1981a. If such damages were already

available under the Title VII’s original language, then

Congress wouldn’t have needed to act. Given their

similarities, if Title VII required amendment to allow

compensatory and punitive damages, logic dictates that the

Act likewise would need amendment before granting the

Board authority to order consequential or foreseeable

damages.

***

Thus, the Board exceeded its authority under § 160(c) in

devising its newfound foreseeable-damages remedy.

2.

Even though § 160(c) is clear on its face, the Seventh

Amendment commands that we resolve any ambiguity by

rejecting the Board’s claim of broad authority to order

consequential or foreseeable damages. The Seventh

Amendment guarantees the right to trial by jury “[i]n Suits

at common law.” U.S. Const. amend. VII. If administrative

agencies, like the Board, seek to impose damages on a party

that resemble those available in “Suits at common law,” then

the party must receive a jury trial. Issuing broad

consequential damages—a tort remedy—thus implicates the

Seventh Amendment. The dissenting Board members saw

this danger clearly in opposing the Board’s power grab. See

Thryv, Inc., 372 NLRB No. 22, at 16 (“We further observe

that the Board faces potential Seventh Amendment issues if

it strays into areas more akin to tort remedies.”) (Kaplan and

Ring, dissenting in part). So even if the Board’s statutory

authorities here are “susceptible of multiple interpretations,”

we should “shun an interpretation that raises serious

68 INT’L UNION OF OPERATING ENGINEERS V. NLRB

constitutional doubts and instead . . . adopt an alternative that

avoids those problems.” Jennings v. Rodriguez, 583 U.S.

281, 286 (2018).

The Supreme Court recently explained the scope of the

Seventh Amendment. See Jarkesy, 603 U.S. 109. The Court

first reiterated that the right to a jury trial is “of such

importance and occupies so firm a place in our history and

jurisprudence that any seeming curtailment of the right has

always been and should be scrutinized with the utmost care.”

Id. at 121 (simplified). The Court then concluded that the

term, “Suits at common law,” contrasted with cases in equity

and admiralty. Id. at 122. The right to jury trial, then,

applies to all suits “which are not of equity or admiralty

jurisdiction, whatever may be the peculiar form which they

may assume.” Id. (simplified). And it doesn’t matter

whether the claim is born of statute. The constitutional

guarantee also encompasses statutory claims that are “legal

in nature.” Id. (simplified). And to determine whether a

claim is “legal in nature,” the Court directed that we consider

both “the cause of action and the remedy it provides.” Id. at

122–23. In the end, however, the remedy is the “more

important consideration” in determining whether the

Seventh Amendment applies. Id. at 123 (simplified).

Indeed, in many cases, consideration of the remedy should

be “all but dispositive.” Id. But even when the Seventh

Amendment applies, an exception exists. Id. at 127. Under

the “public rights” exception, “Congress may assign [a]

matter for decision to an agency without a jury, consistent

with the Seventh Amendment.” Id.

Jarkesy gives us some takeaways. First, it doesn’t matter

who brings the claims or how they are labeled. The Seventh

Amendment applies even to administrative agencies and

even if they call the claim something other than a “legal

INT’L UNION OF OPERATING ENGINEERS V. NLRB 69

claim.” See id. at 121–24. Second, we look at both the

nature of the claim and the remedies the agency seeks. And

the remedy alone may be enough to invoke the Seventh

Amendment. See id. at 123–24. Third, we must consider if

the public rights exception would still allow the

administrative adjudication to go forward. See id. at 127.

Given these principles, reading § 160(c) to authorize the

Board to award consequential or foreseeable damages would

raise serious constitutional doubt under the Seventh

Amendment.

First, consider the remedies the Board seeks to impose—

arguably the most important concern. Recall, under its

make-whole authority, the Board believes that it may make

employers pay for any foreseeable pecuniary harm that

employees experience because of an unfair labor practice.

This includes such attenuated harms as babysitting fees,

credit card late fees, car payments, and attorneys’ fees to sue

landlords. But all this exceeds the purely equitable remedies

that the Board may order.

Without question, the Board has the equitable powers to

restore employees to the status quo through monetary relief.

See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48

(1937) (the Board may order a monetary recovery as “an

incident to equitable relief”). But the Board’s authority to

order payments “must . . . be confined to restitution for the

wrong done.” Leviton Mfg. Co., 111 F.2d at 621. It has no

authority to award money damages as a tort remedy. See

Jarkesy, 603 U.S. at 123 (“[M]oney damages are the

prototypical common law remedy”); Teamsters v. Terry, 494

U.S. 558, 570 (1990) (“Generally, an action for money

damages was ‘the traditional form of relief offered in the

courts of law.’”) (simplified).

70 INT’L UNION OF OPERATING ENGINEERS V. NLRB

To be sure, sometimes equitable restitution and money

damages can look the same. In some cases, they can even

lead to the same dollar award against a party. See Dan B.

Dobbs, 1 Dobbs Law of Remedies 280 (2d. ed. 1993). Even

so, they are distinct. And this distinction is significant:

[T]hey are often triggered by different

situations and always measured by a different

yardstick. Damages always begins with the

aim of compensation for the plaintiff . . . .

Restitution, in contrast, begins with the aim

of preventing unjust enrichment of the

defendant. To measure damages, courts look

at the plaintiff’s loss or injury. To measure

restitution, courts look at the defendant’s gain

or benefit.

Id. In other words, what distinguishes ordinary money

damages at law from “equitable restitution and other

monetary remedies available in equity” is that for money

damages “the question is what has the owner lost, not what

has the taker gained.” City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687, 710 (1999) (simplified).

And so, as a corollary, the question for equitable remedies is

only the unjust gain of the taker or employer—not the loss

to the owner or employee.

Explaining the difference between equitable monetary

relief and monetary damages should illuminate the problem

here. The Board wants to measure monetary relief from the

perspective of the employee’s loss—not the employer’s

gain. The Board’s foreseeable-damages regime asks: What

did the employee lose? What fees did the employee incur

because of the unfair labor practice? What opportunities did

INT’L UNION OF OPERATING ENGINEERS V. NLRB 71

the employee forgo because of the proscribed conduct? But

this would be inappropriate under equity. Equitable relief

should ask only what the employer has unjustly gained.

When employers withhold pay from employees based on

unlawful employment actions, employers unjustly keep the

employees’ wages and so equitable relief equates to back

pay—exactly as contemplated by § 160(c). On the other

hand, the award of broad foreseeable damages goes beyond

equitable restitution and crosses into the tort remedy of

money damages.

Indeed, given how far-reaching the Board views

foreseeable damages—encompassing any indirect harm no

matter how remote from the unfair labor practice—these

awards are nearly indistinguishable from punitive damages,

which only courts of law may impose. See Jarkesy, 603 U.S.

at 123–25. As the dissenting members noted, the Board’s

new consequential-damages regime isn’t even limited by the

requirement of “proximate cause”—which makes the

Board’s remedy “go well beyond tort law.” Thryv, Inc., 372

NLRB No. 22, at 19 (Kaplan and Ring, dissenting in part).

By awarding damages for harms that are not directly or

proximately caused by unfair labor practices, we move from

mere compensation to granting a windfall to aggrieved

employees. And when “compensatory damages exceed pure

compensation,” they may become “punitive.” See Dobbs,

Law of Remedies 455.

True, the Board tries to get around this conclusion by

denying any punitive motive for its new remedy. But let’s

look at what the Board said. The Board claimed the remedy

wouldn’t be punitive because it applied to all cases, rather

than just to extraordinary ones. Thryv, Inc., 372 NLRB No.

22, at 17. Yet the Board conceded that “if we were to issue

this make-whole relief only to address the most deplorable

72 INT’L UNION OF OPERATING ENGINEERS V. NLRB

or flagrant violations of the Act, these remedies run the risk

of becoming punitive rather than restorative.” Id. In other

words, the Board acknowledges the punitive nature of its

expansive foreseeable-harm remedy but understands that

applying it selectively would make it blatantly punitive,

which it knows it can’t do. But a punitive measure is still

punitive even if it applies across the board.

Thus, based on the remedies alone, the Board’s

imposition of foreseeable damages would implicate the

Seventh Amendment—giving us every reason to avoid

reading § 160(c) so broadly.

Second, the “close relationship” between the Board’s

efforts to block unfair labor practices and the common-law

tort of wrongful termination supports reading the Board’s

remedial powers narrowly. See Jarkesy, 603 U.S. at 125.

Take this case. The Board asserts that Macy’s violated the

Act by locking out employees without clearly and fully

informing them of the conditions for their reinstatement—

effectively terminating them. See Macy’s, Inc., 372 NLRB

No. 42, at 20. But California, where most of the Macy’s

stores were located, recognizes a tort cause of action for

wrongful terminations that violate public policy. See Freund

v. Nycomed Amersham, 347 F.3d 752, 758 (9th Cir. 2003)

(requiring that the public policy “inures to the benefit of the

public rather than serving merely the interests of the

individual” (simplified)); see also American Law of Torts §

34:83 (2024) (observing that the tort of wrongful termination

exists when an (1) “employee was discharged by his or her

employer” and (2) “the employer breached a contract or

committed a tort in connection with the employee’s

termination.”). And the wrongful-termination tort has a

historical pedigree tracing back to the English common law.

See American Law of Torts § 34.85; see also 1 William

INT’L UNION OF OPERATING ENGINEERS V. NLRB 73

Blackstone, Commentaries *413 (“[N]o master can put away

his servant, or servant leave his master, either before or at

the end of his term, without a quarter’s warning; unless upon

reasonable cause to be allowed by a justice of the peace[.]”).

Consider the individualized assessments necessary to

prove the foreseeable harms for each employee. As the

Board admitted, “aggrieved employees will . . . have to

submit evidence to substantiate pecuniary harms for which

they seek reimbursement” before the Board’s ALJs. Thryv,

Inc., 372 NLRB No. 22, at 11. What then distinguishes

these Board proceedings from individualized tort claims in

federal or state court? Not much.

Thus, both the Board’s actions and wrongful-termination

tort “target the same basic conduct,” Jarkesy 603 U.S. at

125,—preventing wrongdoing in the employment context.

See also Lewis v. Whirlpool Corp., 630 F.3d 484, 487–89

(6th Cir. 2011) (noting the overlap between wrongful-

termination claims and the Board’s jurisdiction). Indeed, the

Board’s jurisdiction so overlaps with the wrongful-

termination tort that it may preempt federal or state tort

actions. See San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236, 245 (1959); Platt v. Jack Cooper Transp., Co.,

959 F.2d 91, 94 (8th Cir. 1992); Lewis, 630 F.3d at 487.

While not necessarily a perfect overlap, no “precise[]

analog[ue]” is necessary under the Seventh Amendment.

Tull v. United States, 481 U.S. 412, 421 (1987). Rather, the

jury right “extends to statutory claims unknown to the

common law, so long as the claims can be said to sound

basically in tort, and [they] seek legal relief.” Monterey, 526

U.S. at 709 (simplified). So the basic “legal” nature of the

claim here supports rejecting the Board’s expansive

remedial powers.

74 INT’L UNION OF OPERATING ENGINEERS V. NLRB

Finally, the public rights exception doesn’t justify the

Board’s broad assertion of remedial powers. The Court has

reminded us that this exception is only an exception.

Jarkesy, 603 U.S. at 131. After all, “[i]t has no textual basis

in the Constitution.” Id. So “[e]ven with respect to matters

that arguably fall within the scope of the ‘public rights’

doctrine, the presumption is in favor of Article III courts.”

Id. at 132 (simplified). Thus, we don’t focus on whether an

action “originate[s] in a newly fashioned regulatory

scheme.” Id. at 133 (simplified). Rather, “what matters is

the substance of the action, not where Congress has assigned

it.” Id. at 134.

And the Court has made clear that the public rights

exception must remain a narrow one. When the Court has

recognized a “public rights” exception, it is based on

“centuries-old,” “background legal principles.” Id. at 131.

Indeed, the Court has only recognized a few categories of

administrative adjudications that fall within the exception:

the collection of revenue; customs law; immigration law;

relations with Indian tribes; the administration of public

lands; and the granting of public benefits, such as payments

to veterans, pensions, and patent rights. Id. at 129–30. On

their face, these categories have little resemblance to

traditional legal claims—they all involve interests that

would not exist without the federal government. In contrast,

in Jarkesy, the Court refused to expand the list to include

administrative adjudications over conduct that resembles

“common law fraud.” Id. at 134. Thus, courts should be

reluctant to expand the exception beyond the enumerated

historical categories.

The Board’s new make-whole remedy is identical to

traditional legal-claim remedies vindicating private rights

and doesn’t fit within the public-rights exception. The

INT’L UNION OF OPERATING ENGINEERS V. NLRB 75

Board’s remedy goes beyond defending the public interest

in federal labor policy and instead targets “the wrong done

the individual employee,” which falls outside the Board’s

authority when fashioning unfair labor practice remedies.

Vaca v. Sipes, 386 U.S. 171, 182 n.8 (1967). So the award

of consequential or foreseeable damages bears little relation

to public rights, and the Board cannot escape this conclusion

by merely calling it a “make-whole” or “equitable” remedy.

See Jarkesy v. SEC, 34 F.4th 446, 457 (5th Cir. 2022)

(“Congress cannot change the nature of a right, thereby

circumventing the Seventh Amendment, by simply giving

the keys to the SEC to do the vindicating.”). However

appropriate a consequential-damages regime may be in the

labor context, when an administrative agency strays into the

realm of legal remedies, that’s a matter for Article III courts

not administrative tribunals.

And the Board is wrong to contend that the Court settled

the Seventh Amendment question back in the 1930s. In

Jones & Laughlin Steel Corporation, the Court concluded

that the Seventh Amendment didn’t preclude the Board from

ordering the “payment of wages for the time lost by the

discharge”—in other words, back pay. 301 U.S. at 48. The

Amendment wasn’t implicated, the Court said, because the

ordered back pay was “incident to equitable relief,” even

though the same “damages might have been recovered in an

action at law.” Id. Key to the Court’s opinion, then, was

that back pay was a form of equitable relief. Indeed, the

Court has emphasized the equitable nature of the back-pay

remedy. See Albemarle Paper Co. v. Moody, 422 U.S. 405,

415–418 (1975) (characterizing back pay awarded against

employers under Title VII as equitable). Here, however, the

Board seeks far greater remedial authorities. It doesn’t just

seek damages “incident to equitable relief,” but it seeks

76 INT’L UNION OF OPERATING ENGINEERS V. NLRB

consequential or foreseeable damages associated with a

“[s]uit at common law.” So Jones & Laughlin isn’t the end

of the analysis when the Board imposes remedies far beyond

back pay. Based on precedent since the 1930s, the Board’s

award of consequential damages would contravene the

Seventh Amendment’s right to a jury trial.

To be clear, the Seventh Amendment doesn’t invalidate

all Board remedial authorities to direct monetary relief. As

limited by § 160(c)’s express authority to order “back pay,”

the Board may act consistently with the Seventh

Amendment. But when the Board strays from the text and

seeks extra-statutory authorities, like the power to direct

consequential or foreseeable damages, then the Seventh

Amendment has something to say. We thus must read

§ 160(c) as precluding the type of monetary relief the Board

seeks here. See Jennings, 583 U.S. at 286.

II.

The Board’s Merits Decision Was Wrong

Even worse, we didn’t need to reach the remedy issue at

all. Instead, the Board’s decision to conclude that Macy’s

committed an unfair labor practice was arbitrary and

capricious and unsupported by the evidence. The Board

concluded that Macy’s committed an unfair labor practice

under § 8(a)(1) and (3) of the Act by not reinstating the

Union members after their offer to return to work and by

locking them out without informing them of the terms to end

the lockout. Macy’s, Inc., 372 NLRB No. 42, at 20. But this

conflicts with the Act for two reasons. First, the Board was

wrong to conclude that Macy’s offensive lockout was

“inherently destructive” because it took two-business days

to communicate its offer to end the lockout. Second, the

INT’L UNION OF OPERATING ENGINEERS V. NLRB 77

Board overlooked some key facts in deciding that Macy’s

actions were not a proper defensive lockout.

Section 8(a)(1) and (3) of the Act “make it an unfair labor

practice for an employer ‘by discrimination in regard to hire

or tenure of employment or any term or condition of

employment to encourage or discourage membership in any

labor organization.’” Fresh Fruit & Vegetable Workers Loc.

1096 v. NLRB, 539 F.3d 1089, 1096 (9th Cir. 2008) (quoting

29 U.S.C. § 158(a)(1), (3)). To find a violation of these

provisions, “the relevant inquiry is whether or not the

employer’s action likely discouraged union membership and

was motivated by anti-union animus.” Id. So usually,

evidence of discriminatory conduct and discriminatory

intent are necessary. But this isn’t always the case.

Sometimes conduct is so “inherently destructive,” that

“improper motive” can be inferred. Id.

We’ve described the framework for analyzing

“inherently destructive” conduct as this:

If employer conduct is “inherently

destructive,” the Board may find an improper

motive regardless of evidence of a legitimate

business justification . . . . If, on the other

hand, “the adverse effect of the

discriminatory conduct on employee rights is

‘comparatively slight,’” and the employer

establishes a legitimate and substantial

business justification for its actions, there is

78 INT’L UNION OF OPERATING ENGINEERS V. NLRB

no violation of the Act without a finding of

an actual anti-union motivation.

Id. (citing NLRB v. Great Dane Trailers, Inc., 388 U.S. 26,

33 (1967)). Both the Board and Macy’s agree that this Great

Dane framework governs this case.

Establishing “inherently destructive” conduct is a high

bar. It requires conduct that “carries with it an inference of

unlawful intention so compelling that it is justifiable to

disbelieve the employer’s protestations of innocent

purpose.” Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 311–

12 (1965) (emphasis added). The conduct must have “far

reaching effects which would hinder future bargaining” and

“creat[e] visible and continuing obstacles to the future

exercise of employee rights.” Portland Willamette Co. v.

NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976) (emphasis

added). In other words, the conduct must have “the natural

tendency . . . to severely ‘discourage union membership

while serving no significant employer interest.’” Fresh

Fruit & Vegetable Workers Loc., 539 F.3d at 1097 (quoting

Am. Ship Building, 380 U.S. at 312) (emphasis added).

Thus, the effect of the conduct must be more than temporary

or slight. It must significantly alter the bargaining

relationship. In sum, there must be “no question that the

employees were being punished for their union activities.”

Id. (emphasis added).

The Board hasn’t met that standard here.

A.

There’s nothing inherently problematic with the use of

lockouts. Am. Ship Bldg., 380 U.S. at 308–313. Proper

offensive lockouts may occur when an employer locks out

employees “in support of legitimate bargaining demands.”

INT’L UNION OF OPERATING ENGINEERS V. NLRB 79

Boehringer Ingelheim Vetmedica, Inc., 350 NLRB 678, 679

(2007). The Board never found that Macy’s had anti-union

animus in initiating its lockout and so the Board must show

that Macy’s actions were “inherently destructive” to support

its charge. But all the facts reveal that the delay in providing

a new proposal at the time of the lockout had no “far

reaching,” “continuing,” or “sever[e]” effect on collective

bargaining. To the contrary, the lockout served a legitimate

economic purpose.

Let’s recap the facts from 2020:

• On August 31, Macy’s gives its best and final offer to

the Union.

• On September 4, the Union’s members begin to strike.

• On October 8, Macy’s informs the Union that its best

and final offer will expire on October 15.

• On October 15, Macy’s best and final offer expires.

• On November 25, the Union presents a counter

proposal to Macy’s.

• On December 4, Macy’s rejects the Union’s counter

proposal. That Friday evening, the Union

unconditionally offers to return to work “immediately”

in an email sent after hours on the East Coast. Macy’s

asks the Union to hold off on returning to work and

promises to respond by the close of business on

Monday. The Union asks if “this mean[s] you are

locking them out till Monday?”

• On December 5–6, Macy’s reiterates its request for

time to respond, noting the “administrative, logistical,

and economic” challenges of reinstating employees on

80 INT’L UNION OF OPERATING ENGINEERS V. NLRB

short notice. The Union refuses to accommodate

Macy’s and declares that its members will return to

work unless they’re locked out. Macy’s again asks for

time because “[t]hey have been out for 90+ days, and

to think you can just flip a switch and have them back

is not possible.”

• On December 7, Macy’s notifies the Union it will not

reinstate its members “until there is an agreement in

place,” which is “in support of [its] bargaining

position.” Macy’s proposes dates for new bargaining

sessions, including a date on December 10.

• On December 10, Macy’s presents a new collective

bargaining agreement proposal to the Union.

So the Union demanded to return to work within one

business day on a Friday evening. Macy’s reasonably asked

the Union to hold off on returning to work while it figured

out its position over the weekend. On Monday, Macy’s told

the Union that it was locking out the Union members in

support of its bargaining position and notes that a new

bargaining agreement must be reached before reinstatement.

Two days later, Macy’s and the Union were back at the

bargaining table with Macy’s presenting a new proposal.

The Board decided that this two-day delay in informing the

Union of its latest offer was an unfair labor practice. Indeed,

the Board held that Macy’s failure to communicate a new

offer by Monday morning (one business day) was an unfair

labor practice. See Macy’s, Inc., 372 NLRB No. 42, at 20

(“the lockout was unlawful at its inception, on December

7”). But this is not even close to meeting the exacting

standard of “inherently destructive” conduct.

INT’L UNION OF OPERATING ENGINEERS V. NLRB 81

We’ve already been skeptical of the need to immediately

reinstate employees after an offer to return to work. In Fresh

Fruit & Vegetable Workers Local, after a strike and 14-year

long lockout, an employer offered to reinstate striking Union

workers but delayed reinstatement for one month. 539 F.3d

at 1093–94. The employer justified the delay by the need for

the employees to give notice to their existing employers and

to allow for a particular manager to train the returning

employees. Id. at 1094. The Board thought that this delay

was inherently destructive and ordered back pay. Id. at

1094–95. We rejected the Board’s conclusion. Id. at 1096.

We explained that the one-month delay after a 14-year

lockout did not meet the high bar for “inherently destructive”

conduct. Id. at 1097. Given the “short” reinstatement delay

“relative to the lockout period,” we concluded the delay

couldn’t be viewed as “punishment for a protected activity.”

Id. “After a fourteen-year lockout,” we said, “a delay of a

few more weeks prior to reinstatement does not necessarily

express anti-union animus beyond that expressed by the

lockout itself.” Id. (emphasis added). Rather, the delay

would be understood as the time “necessary and normal to

accomplish reinstatement,” not as an attempt to “obstruct or

discourage employees from exercising their statutory

rights.” Id. Thus, we reversed the Board’s conclusion of a

violation of the Act. See id. at 1100.

As in Fresh Fruit, the Board didn’t consider the totality

of the circumstances before concluding that Macy’s

committed an unfair labor practice. The Board ruled that the

lack of an immediate, clear, and complete proposal to the

Union within one business day of the offer to return

constituted “inherently destructive” conduct. But that’s

wrong. After the Union engaged in a three-month strike,

rejected Macy’s final offer, and then sought to jam Macy’s

82 INT’L UNION OF OPERATING ENGINEERS V. NLRB

with a Friday night return-to-work offer, Macy’s taking a

mere two business days to formulate and communicate a

new, detailed offer can’t be viewed as anti-union animus.

Given the relatively short period in which Macy’s developed

a new offer after the months-long strike, nothing shows that

the minor delay in communicating its latest offer after the

lockout was necessarily made to punish the Union for its

protected activity or was necessarily an attempt to obstruct

or discourage the employees’ union activity. Instead, the 48-

hour delay could be viewed as the “necessary and normal”

time to figure out Macy’s response to the Union’s

unexpected return-to-work offer and to draw up a new

proposal. See id. at 1097. Without any evidence of anti-

union animus, the Board hasn’t shown how the short delay

here had more than a “comparatively slight” impact on the

Union under Great Dane Trailers, 388 U.S. at 33.

Establishing a hard-and-fast rule that an employer must

provide a “timely, clear, and complete offer” before

engaging in an offensive lockout within one-business day

was arbitrary and capricious. See Macy’s, Inc., 372 NLRB

No. 42, at 1.

Indeed, labor disputes often involve complex

circumstances that can’t be resolved on the short fuse that

the Board requires here. Under the Board’s arbitrary rule,

Macy’s could have only responded two ways to the Union’s

Friday-night offer: (1) immediately reinstate the workers

and lose its bargaining position after the three-month strike,

or (2) institute the offensive lockout but come up with a new

offer essentially overnight. Nothing in the Act requires these

grim choices.

Well, couldn’t Macy’s have immediately revived its final

offer to comply with these rules? Yes, but that would defeat

the purpose of the “best and final” offer as a bargaining

INT’L UNION OF OPERATING ENGINEERS V. NLRB 83

tactic. Now, a union can decide whether an offer is a best

and final one or not. All a union must do to resurrect an

expired offer is make an unconditional offer to return to

work on short notice before a weekend.

But, what’s wrong with forcing Macy’s to reinstate the

employees by Monday morning? First, this ignores the

enormous logistical difficulties with returning dozens of

striking employees to work over a weekend. Second, this

would also weaken Macy’s bargaining position by

decreasing the need for an agreement. Unless an employer

shows anti-union animus, the Act doesn’t permit the Board

to force a one-sided solution in a labor dispute.

And nothing in the Board’s precedent supports its

draconian ruling here. Start with Dayton Newspapers. In

that case, an employer locked out several delivery drivers

after a one-day strike. In re Dayton Newspapers, Inc., 339

NLRB 650, 650 (2003). Negotiations and the lockout

continued for months. But, on December 23, the union made

an unconditional offer to return to work. Id. at 651. Four

days later, the employer rejected the offer and

communicated that the union had to accept several “changed

circumstances,” including unspecified “operational

changes.” Id. The next day, the union agreed to the

“changed circumstances,” although it noted that the

“operational changes” condition may need further

negotiations. Id. More than a month later, on February 4,

the employer nonetheless rejected the union’s offer,

suggesting that the union hadn’t accepted all the conditions

of reinstatement. Id. at 652. The Board concluded that the

employer engaged in an unfair labor practice in not

reinstating the locked-out drivers because the employer

failed to “clearly and fully set forth” the conditions of

reinstatement. Id. at 656. In particular, the demand for

84 INT’L UNION OF OPERATING ENGINEERS V. NLRB

acceptance of “operational changes” was “unclear and

changing” and became a “moving target.” Id. Under these

conditions, the union couldn’t “intelligently evaluate its

position and obtain reinstatement.” Id.

The differences between Dayton Newspapers and this

case are glaring. First off, notice that the negotiations over

reinstating the drivers took place over weeks—not days or

hours, as here. The Board never criticized the employer for

taking too long to communicate its condition of

reinstatement—it criticized the employer for not being clear

on the conditions themselves. See id. at 656–58. In contrast,

the Board here held that Macy’s failure to communicate a

new offer by Monday morning—one business day later—

was an unfair labor practice. See Macy’s, Inc., 372 NLRB

No. 42, at 20. So the Board is punishing Macy’s for taking

a total of 48 hours more to communicate its newest offer to

end the lockout.

Indeed, Board precedent requires parties to afford each

other fair time to evaluate and respond to offers. In Alden

Leeds, the Board concluded that giving a union “only one

working day’s notice, in which to evaluate and understand

[employer’s] uncertain, ambiguous, and confusing offer,

vote on it and accept it, is clearly insufficient and not the

‘timely’ notice required by Board precedent.” 357 NLRB

84, 95 (2011). So the Board violates its own precedent to

reach its desired outcome. If that’s not arbitrary and

capricious, nothing is. We then just give the Board a blank

check to do what it wants in the labor context.

B.

As if it weren’t enough, the Board gives us one final

reason to deny the Board’s petition. Macy’s argues that it

had good-faith concerns about the Union’s actions during the

INT’L UNION OF OPERATING ENGINEERS V. NLRB 85

strike that justified a defensive lockout. According to

Macy’s, strikers orally abused its employees, attacked its

customers, flouted COVID safety protocols, caused a

sewage backup by blocking a drain outside its San Francisco

store, and sabotaged its facilities. It was especially

concerned about having the employees return to work given

the upcoming holiday season, which accounts for much of

the company’s profits. See Macy’s, Inc., 372 NLRB No. 42,

at 20. The Board rejected Macy’s defensive lockout

justification because it believed that the defensive lockout

concern was simply a pretext to pressure the Union to accept

the company’s offer. But that conclusion was arbitrary and

capricious and unsupported by the record.

To justify a defensive lockout, an employer need only be

“reasonably concerned” about the employees’ actions. See

Sociedad Espanola de Auxilio Mutuo y Beneficiencia, 342

NLRB 458, 462 (2004). This is a relatively low bar. While

we must defer to the Board’s factual findings if they are

supported by substantial evidence, we have a duty to correct

when the “administrative agency has made an error of law.”

NLRB v. Enter. Ass’n of Steam, Hot Water, Hydraulic

Sprinkler, Pneumatic Tube, Ice Mach. and Gen. Pipefitters

of N.Y., 429 U.S. 507, 522 n.9 (1977). Here, neither the ALJ

nor the Board cited the “reasonably concerned” standard and

only looked at whether Macy’s proved the incidents of

misconduct by Union members. But that’s not the legal

standard to justify a defensive lockout. All that’s necessary

is that Macy’s show that it was “reasonably concerned”

about the misconducted. Thus, we should have remanded on

this basis alone. See id.

Moreover, as Macy’s raised to the Board, the ALJ

glossed over all the evidence of Macy’s “good faith” belief

that the striking employees engaged in misconduct or

86 INT’L UNION OF OPERATING ENGINEERS V. NLRB

sabotage. Despite our deference to factual findings, the ALJ

and the Board can’t ignore significant evidence contrary to

its position. See Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951) (“The substantiality of evidence must take

into account whatever in the record fairly detracts from its

weight.”); Lakeland Health Care Assocs., LLC v. NLRB, 696

F.3d 1332, 1335 (11th Cir. 2012) (noting the Board “cannot

ignore relevant evidence that detracts from its findings”

(simplified)).

Neither the ALJ nor the Board considered the fact that,

before the lockout, Macy’s twice sought injunctive relief in

state court against the Union. On November 20, Macy’s

filed a motion for a preliminary injunction alleging causes of

action against the Union for nuisance, trespass, false

imprisonment, assault, battery, and intentional interference

with prospective economic relations. Before the lockout, the

state court denied the request without prejudice because

Macy’s had not yet proven irreparable harm. But the state

court did not appear to rule on the facts of Macy’s allegation.

By going to state court on the very same concerns as raised

for the defensive lockout, Macy’s showed it was “reasonably

concerned” with the Union members’ actions. Indeed, filing

for a false or bad-faith injunction would have subjected

Macy’s to judicial sanctions. Yet the ALJ and the Board

never said why this evidence wasn’t sufficient to prove

Macy’s defensive reasons. By not accounting for these

significant facts, the ALJ and the Board acted arbitrarily,

capriciously, and without support.

III.

Let’s recap the Board’s extraordinary actions here. After

a lengthy and acrimonious strike, the Union made an

unconditional offer to return to work—expecting to be

INT’L UNION OF OPERATING ENGINEERS V. NLRB 87

accommodated within one business day. On the next

workday, Macy’s responded that it was locking out the

striking employees in support of its bargaining position.

True, Macy’s didn’t have an offer on the table then, but that’s

not unexpected given that the Union had rejected its best and

final offer. In any case, Macy’s put together a new offer two

days later. Despite these efforts, the Board determined that

Macy’s committed an unfair labor practice. If this wasn’t

unusual enough, the Board then imposed extraordinary

damages—making Macy’s pay for “all direct or foreseeable

harms” that occurred to the employees since the lockout.

Until recently, the Board never claimed the authority to order

consequential damages as here. And the Board ignores the

obvious statutory and constitutional roadblocks to this newly

claimed authority. The majority largely ignores these

concerns and just proclaims that we must defer to the Board

because it is at the “zenith” of its discretion. That’s

incorrect. The law and the Constitution are supreme here—

not the bureaucrats of the Board. We should not have

condoned this government overreach.

I respectfully dissent.

88 INT’L UNION OF OPERATING ENGINEERS V. NLRB

R. NELSON, Circuit Judge, with whom CALLAHAN,

IKUTA, LEE, BUMATAY, and VANDYKE, Circuit

Judges, join, dissenting from the denial of rehearing en banc:

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. I respectfully dissent.

I

A

This case arose from a lengthy labor dispute between

Macy’s Inc. and the International Union of Operating

Engineers, Local 39 (Union), which represents some of

Macy’s engineers and craftsmen. Macy’s and the Union had

a collective bargaining agreement which covered sixty to

seventy employees. The most recent bargaining agreement

ended on August 31, 2020. After two months and twelve

bargaining sessions, Macy’s presented the Union with its

final offer on August 31. The Union rejected the offer and

went on a three-month strike accompanied by a picketing

offensive at Macy’s flagship San Francisco location.

The day before Thanksgiving, a month after the final

offer expired, the Union sent a new proposal. Macy’s

rejected this proposal on Friday, December 4. That same

afternoon, just before the close of business, the Union made

“an unconditional offer to return our members to work

immediately.” On Sunday, December 6, the Union refused

to give Macy’s an extension until Monday to reassess before

INT’L UNION OF OPERATING ENGINEERS V. NLRB 89

reinstating the employees. On Monday, Union members

showed up to work and were turned away (as Macy’s had

conveyed would happen). The parties agreed to meet three

days later, when Macy’s presented the Union with a new

offer. The parties negotiated but could not agree to terms.

Five years later, the Union members remain locked out.

The Administrative Law Judge (ALJ) found that Macy’s

committed an unfair business practice by locking out Union

members after the Union sent its Friday afternoon offer to

return to work and refused to wait until Monday for a

response. The ALJ ordered Macy’s to make the Union

members whole. Macys, Inc., 372 NLRB No. 42, at 23

(2023). Macy’s appealed the ALJ’s determination to the

National Labor Relations Board (NLRB).

The NLRB affirmed the ALJ’s decision on the merits but

rejected the ALJ’s remedy because it didn’t go far enough.

The Board “amended the make-whole remedy and modified

the judge’s recommended order to provide” consequential

damages called a Thryv remedy. Id. at 1 n.2. This remedy

extends to all foreseeable pecuniary harms of an unfair labor

practice, including, but not limited to, search-for-work

expenses, out-of-pocket medical expenses, credit card debt,

transportation, childcare costs, “other costs simply in order

to make ends meet,” and anything else the Board can think

of. Thryv, Inc., 372 NLRB No. 22, at 15 (2022), order

vacated in part, 102 F.4th 727 (5th Cir. 2024). So Macy’s

became liable for any inconvenience Union members faced

from being unemployed for five years and counting.

B

The panel majority affirmed the NLRB. Int’l Union of

Operating Eng’rs, Stationary Eng’rs, Loc. 39 v. NLRB, 127

90 INT’L UNION OF OPERATING ENGINEERS V. NLRB

F.4th 58, 68 (9th Cir. 2025); Amended Opinion at 9. 1 It

created a novel and legally dubious rule to uphold the merits

of the NLRB’s unfair labor pra

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