National Labor Relations Board v. North Mountain Foothills Apartments, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS No. 24-2223

BOARD

National Labor

Relations Board

Petitioner,

v. NLRB No.

28-CA-286885

NORTH MOUNTAIN FOOTHILLS

OPINION

APARTMENTS,

Respondent.

On Petition for Application for Enforcement of an Order of

the National Labor Relations Board

Argued and Submitted July 11, 2025

San Francisco, CA

Filed October 28, 2025

Before: Holly A. Thomas and Ana de Alba, Circuit Judges,

and Jed S. Rakoff, District Judge. *

Opinion by Judge Rakoff

*

The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.

2 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

SUMMARY **

Labor Law

The panel granted an application by the National Labor

Relations Board (“NLRB”) for enforcement of its order

finding that North American Foothills Apartments

(“NMFA”) violated Section 8(a)(1) of the National Labor

Relations Act.

The panel held that it had jurisdiction to adjudicate

NMFA’s unexhausted constitutional challenges to the

NLRB, which it did not raise before the NLRB.

First, NMFA challenged a statutory provision—

providing that an administrative law judge (“ALJ”) could be

removed “only for just cause,” as determined by the Merit

Systems Protection Board—on the ground that the provision

violates Article II, which it argued vests the sole removal

power over agency “officers” (such as the ALJ who initially

rendered the order appealed from here) in the President. The

President never sought to remove the ALJ who issued the

order here. The panel held that so long as an agency officer

was validly appointed (which NMFA did not contest as to

this ALJ), retrospective relief based on an unconstitutional

removal provision is available only where the provision

inflicts compensable harm. The panel held that even if it

assumed arguendo that the NLRB’s for-cause protections

were invalid, NMFA’s failure to show harm precluded

retrospective relief.

**

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

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

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 3

Second, NMFA argued that the NLRB’s adjudication

scheme violated the Seventh Amendment by denying

employers the right to a jury trial. The Supreme Court has

squarely held that an NLRB unfair practice proceeding is not

a “suit at common law” for purposes of the Seventh

Amendment. The panel held that employers are not entitled

to jury trials in cases involving Thryv v., Inc. v. International

Brotherhood of Electrical Workers, Local 1269, 372 NLRB

No. 22 (2022), remedies. Accordingly, the panel concluded

that the Seventh Amendment was not implicated.

Third, NMFA argued that the combined investigatory

and adjudicatory functions of the NLRB were inconsistent

with separation of power principles such that the NLRB’s

decision violated NMFA’s Fifth Amendment right to due

process. The panel held that the combination of

investigative and judicial functions within an agency does

not, of itself, violate due process. NMFA did not argue that

the NLRB confers both investigative and adjudicatory

powers on a single individual within the agency, nor could

it. NMFA also failed to demonstrate that either the NLRB’s

ALJs or its Board members had an unconstitutional potential

for bias, such that the presumption of honesty and integrity

should not apply to them. Accordingly, the panel rejected

NMFA’s due process challenge.

Turning to the merits, the panel held that NMFA had

forfeited three of the NLRB’s four findings that NMFA

violated Section 8(a)(1) of the National Labor Relations

Act.

As to the NLRB’s finding that NMFA discharged an

employee for engaging in actual or perceived concerted

activities, the panel applied the test set forth in Wright Line,

251 NLRB 1083 (1980), and concluded that the NLRB’s

4 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

finding that NMFA violated Section 8(a)(1) by discharging

the employee for engaging in actual or perceived protected

activities was supported by substantial evidence.

COUNSEL

Kent J. Coupe (argued), Attorney; Amy H. Ginn,

Supervising Attorney; David Habenstreit, Assistant General

Counsel; Ruth E. Burdick, Deputy Associate General

Counsel; Peter S. Ohr, Deputy General Counsel; Jennifer A.

Abruzzo, General Counsel; National Labor Relations Board,

Washington, D.C.; for Petitioner.

Jeffrey W. Toppel (argued), Bianchi & Brandt, Scottsdale,

Arizona; Edmundo P. Robaina, Yen Pilch Robaina & Kresin

PLC, Phoenix, Arizona; for Respondent.

Maneesh Sharma and Matthew Ginsburg, AFL-CIO,

Washington, D.C., for Amicus Curiae American Federation

of Labor-Congress of Industrial Organizations.

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 5

OPINION

RAKOFF, District Judge:

Respondent North Mountain Foothills Apartments

(“NMFA”) appeals the finding by the National Labor

Relations Board (“NLRB”) that NMFA violated Section

8(a)(1) of the National Labor Relations Act (“NLRA” or

“the Act”). For the first time on appeal, NMFA raises

multiple constitutional challenges to the NLRB’s functions

and structure, including challenges to the NLRB’s for-cause

removal protections, adjudication scheme, and combined

investigatory and adjudicatory powers. NMFA also

challenges the NLRB’s decision on the merits. For the

reasons explained below, we reject these arguments and

grant the NLRB’s application for enforcement.

I.

Carrie Matteson and Michael Gareau own NMFA, which

rents and manages apartments, including the 194-unit North

Mountain Foothills Apartment Complex (“the Complex”) in

Phoenix, Arizona. During the period giving rise to this

litigation, Matteson served as NMFA’s operations manager,

Noemi Soto served as the property manager, and Lisa

Stearns served as the assistant property manager. Together,

Matteson, Soto, and Stearns supervised various maintenance

technicians, including James Cosgrove, Jose Diaz, Dwayne

Mims, Joe Scott, Tyler Spence, and “Cassidy.” 1

During the summer of 2021, Phoenix suffered a

heatwave. Due to an outdated HVAC system, the Complex

experienced a significant increase in the number of work

1

As the Board explains in its decision, Cassidy’s last name is unknown.

6 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

orders, leading NMFA to advertise for an “Apartment

Maintenance Technician/General Laborer/Handyman.”

Jasper Press applied for the position. Matteson was

impressed by his experience working with HVAC systems

and offered him the job. She then emailed him to inform him

that he would be paid $25 per hour and receive access to a

three-bedroom apartment in the Complex in lieu of a bonus.

In the email, she stated that the apartment was “a monthly

$1500 investment from the company,” so NMFA “would be

looking for high performance, reliable/dependable/quality

work and skills that contribute to increased [return on

investment] over the course of the year.”

On August 10, Press began working at the Complex.

That day, he was assigned to complete a work order with

Diaz. While he and Diaz were working on the order, Press

mentioned to Diaz that there was a large backlog of work

orders, but that the “challenge” was “worth it because [he]

was being paid $25 an hour” and “had a $1,500 [monthly]

housing subsidy.” Press also commented on the “dilapidated

condition” of the Complex, including the “infestation of

cockroaches” and “constant leaks from aging equipment.”

While Press and Diaz completed the work order, the tenant

who had placed the order informed them that she had already

had to move from a different unit in the Complex due to

cockroaches. Press responded that NMFA would “work on

correcting the issue.” Later that same day, Press was

working with Cassidy on a different assignment and

similarly told her that he was up to the “challenge” of

completing the numerous work orders because of his hourly

wage and housing subsidy. He also told Cassidy that he

thought the Complex was in “poor condition,” which “made

working there difficult.”

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 7

Press also discussed his hourly rate and housing subsidy

with two additional workers, Scott and Cosgrove. Cosgrove

proceeded to tell Mims that Press had mentioned his

compensation package, which Mims later reported to Soto.

Although NMFA did not have a policy that prohibited

workers from discussing their wages, Mims believed that

Press should not have been discussing his compensation with

others. On Press’s second day of work, August 11, Diaz,

Mims, and Scott had to complete work orders that were

originally assigned to Press. Diaz then told Soto that Press

had failed to complete his assignments that day.

On the morning of August 12, Matteson approached

Press by the mailboxes outside the Complex’s leasing office.

According to Press, Matteson appeared “upset” because she

was “talking faster than normal” and her voice was “higher

than normal.” Matteson asked Press whether he knew

anything about why the other workers knew how much he

was earning. Press falsely said that he did not know how the

other workers learned this information, but that it was

possible that someone had overheard him talking to his wife

on the phone. Matteson told Press that they would have

another discussion about the issue and walked away.

A few hours later, Press met with Matteson and Soto for

a closed-door meeting, which he secretly recorded. Matteson

began the meeting by telling Press that she had heard that

other employees knew about his hourly rate and housing

benefit. Over the course of the conversation, she stated that

this was making her “life really tough,” that it had become

“just this red-hot issue,” that Press had created a “crisis

situation,” that she now had a “hornets’ nest to deal with,”

and that she had to “figure out damage control on [her] end.”

She stated that she had heard that Press did not want to live

in the Complex because of pests, which Press dismissed as

8 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

an exaggeration. Matteson told Press that “this [was] a really

bad kick-off” and that she was not sure that their working

relationship could be fixed because the “trust and

confidentiality” had “already [been] chiseled away at.”

When Press stated that he was “very sorry that everybody

[knew] how much [he was] being paid,” Matteson

responded, “So am I.” Matteson then forbade Press from

discussing pest control issues with residents and stated that

“[his] work conditions [were] nobody’s business but [his]

except for that now everyone [was] aware of them.” Finally,

Matteson stated that although camaraderie was an important

part of the job, “this whole situation [had] not built

camaraderie at all.” When Press asked Matteson whether

“[t]his situation” referred to the other workers “knowing

[his] wage,” Soto responded, “[a]nd [your] housing and all

that other stuff,” and indicated that Press’s discussions with

the other workers had “backfired, really bad.”

On August 13, Press’s fourth day at NMFA, Press

worked his entire shift without incident. That evening, after

close of business, Soto called Press and informed him that

he was being discharged for failing to complete his work

orders. After Press disputed that he had not completed his

work orders, the conversation ended.

II.

Based on the foregoing facts, Press filed a complaint

with his regional office of the NLRB alleging that NMFA

had engaged in unfair labor practices. After an evidentiary

hearing before an administrative law judge (“ALJ”), the

NLRB found that NMFA had violated Section 8(a)(1) of the

NLRA by (1) interrogating Press about his discussions about

his compensation with other workers at the Complex,

(2) “orally promulgat[ing] an overly broad and

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 9

discriminatory directive prohibiting [Press] from

discussing” his compensation with other workers at the

Complex and “prohibiting him [from] discussing pest

control issues with third parties,” (3) “threaten[ing] [Press]

with unspecified reprisals if he continued to engage in

protected activities,” and (4) “discharg[ing] Press for

engaging in actual or perceived protected activities.”

Based on those findings, the NLRB, by order dated

February 21, 2024, ordered NMFA to cease and desist from

engaging in all four violations with respect to Press and from

“interfering with, restraining, or coercing” other employees

in their “exercise of the rights guaranteed them by [the

NLRA]” in any similar or related manner. The order also

required NMFA to offer to reinstate Press within fourteen

days, make Press whole for any loss of earnings or benefits,

compensate Press for any adverse tax consequences of a

lump sum backpay, remove any reference to Press’s

discharge from its files, and post a remedial notice.

On appeal, NMFA challenges the NLRB’s order on four

grounds. Three of these grounds, involving constitutional

challenges to the NLRB’s structure and function, were never

raised below. Specifically, NMFA argues that the NLRB’s

for-cause removal protections violate Article II of the U.S.

Constitution, that its adjudication scheme violates the

Seventh Amendment right to a jury trial, and that its

combined investigatory and adjudicatory powers are

inconsistent with the separation of powers and therefore

violate the Fifth Amendment right to due process. As a

fourth ground, NMFA argues that the Board’s findings were

not supported by substantial evidence.

In its answering brief, the NLRB opposed these

arguments on multiple grounds, one of which it subsequently

10 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

withdrew. The NLRB first argued that we lack jurisdiction

to hear NMFA’s constitutional claims because NMFA failed

to raise them before the NLRB. The NLRB also initially

argued that, in any event, each and all of NMFA’s

constitutional claims failed on the merits. Finally, on the

merits of the Board’s order, the NLRB argued that NMFA

had abandoned or forfeited various challenges to its findings

and that NMFA’s preserved challenges failed because the

NLRB’s findings were supported by substantial evidence.

For all of these reasons, the NLRB asked that we reject

NMFA’s arguments and enter a judgment enforcing its

order.

Five months later, however, on February 21, 2025, the

NLRB filed a 28(j) letter “notif[ying] the Court that it no

longer presses the argument in its brief regarding the

constitutionality of the removal protections for NLRB Board

members and administrative law judges.” Letter from Ruth

E. Burdick, Deputy Assoc. Gen. Couns., NLRB to Molly C.

Dwyer, Clerk of the Ct. for the U. S. Ct. of Appeals for the

Ninth Cir. 1 (Feb. 21, 2025) (hereinafter “February Letter”).

That letter is consistent with the current administration’s

position that the NLRB’s for-cause removal protections do

in fact violate Article II. See Application to Stay the

Judgments at 12, Trump v. Wilcox, No. 24A966 (filed Apr.

1, 2025) (“[T]his Court’s precedents establish that Article II

empowers the President to remove, at will, members of

multimember boards that wield substantial executive power,

such as the NLRB . . . .”). Both parties now agree that if the

issue is properly before us, the NLRB’s for-cause removal

protections should be deemed to violate Article II. The

NLRB argues, however, that those statutory removal

provisions are not properly before us and that, if they were,

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 11

such challenges would fail because NMFA has not met the

causal-harm requirement. February Letter at 1.

III.

We review questions of jurisdiction and of constitutional

law de novo. Decker Coal Co. v. Pehringer, 8 F.4th 1123,

1129 (9th Cir. 2021). If we reach the merits of the Board’s

decision, we “must uphold a Board decision when

substantial evidence supports its findings of fact and when

the agency applies the law correctly.” 2 United Nurses Ass’ns

of Cal. v. NLRB, 871 F.3d 767, 777 (9th Cir. 2017).

A.

We first consider whether we have jurisdiction to

adjudicate NMFA’s constitutional challenges to the NLRB.

Section 10(e) of the NLRA provides that “[n]o 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.” 29 U.S.C. § 160(e). NMFA

argues that its constitutional challenges, which it did not

raise before the NLRB, qualify as “extraordinary

circumstances,” so that we nevertheless have jurisdiction to

consider them. The NLRB disagrees, and two of our sister

circuits are divided on this issue. See Noel Canning v. NLRB,

705 F.3d 490, 497 (D.C. Cir. 2013) (exercising jurisdiction

over an extraordinary circumstances exception in an

unexhausted constitutional challenge to the NLRB’s

authority); NLRB v. RELCO Locomotives, Inc., 734 F.3d

764, 796–98 (8th Cir. 2013) (reaching the opposite

conclusion in the same context).

2

Unless otherwise indicated, all quotations omit internal alterations,

brackets, citations, ellipses, quotations, and quotation marks.

12 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

Though we have not specifically considered this

question before, we receive considerable guidance from our

previous decisions. In Reid v. Engen, for instance, we held

that we “may decide an issue not raised in an agency action

if the agency lacked either the power or the jurisdiction to

decide it.” 765 F.2d 1457, 1461 (9th Cir. 1985). “This

situation,” we explained, “is typified by challenges to the

constitutionality of a statute or challenges to the

constitutionality of a regulation promulgated by the agency.”

Id.; see also Marathon Oil Co. v. United States, 807 F.2d

759, 768 (9th Cir. 1986) (explaining that we may consider

issues that “implicate[] the constitutionality of a statute or

regulation where the agency does not have power to correct

a claimed grievance”). Indeed, as the Supreme Court itself

stated in Califano v. Sanders, “Constitutional questions

obviously are unsuited to resolution in administrative

hearing procedures and, therefore, access to the courts is

essential to the decision of such questions.” 430 U.S. 99, 109

(1977). “[W]hen constitutional questions are in issue, the

availability of judicial review is presumed . . . .” Id.

Allowing courts to review unexhausted constitutional

claims concerning an agency’s enabling statute makes good

sense. As the Supreme Court recently observed in Carr v.

Saul, echoing our reasoning in Reid, “agency adjudications

are generally ill suited to address structural constitutional

challenges, which usually fall outside the adjudicators’ areas

of technical expertise.” 593 U.S. 83, 92 (2021); see also

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994)

(“[A]djudication of the constitutionality of congressional

enactments has generally been thought beyond the

jurisdiction of administrative agencies.”). The Supreme

Court also emphasized that it had “consistently recognized a

futility exception to exhaustion requirements.” Carr, 593

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 13

U.S. at 93. As that exception itself recognizes, it “makes

little sense to require litigants to present claims to

adjudicators who are powerless to grant the relief

requested,” as such a “vain exercise” will “rarely protect

administrative agency authority or promote judicial

efficiency.” Id.

The NLRB’s limited arguments to the contrary are

unpersuasive. The agency argues that “[t]he text of Section

10(e) makes no exception for constitutional claims” and that

both we and the Supreme Court “have therefore consistently

recognized that Section 10(e) applies with equal force when

a party attempts to raise new constitutional arguments.”

However, each of the cases that the NLRB cites where

plaintiffs were prohibited from raising constitutional

arguments in judicial proceedings that they had not

exhausted before the agency involved an unexhausted

challenge to an agency’s decision, not an unexhausted

constitutional challenge to the workings of the agency itself.

See, e.g., Int’l Ladies’ Garment Workers’ Union v. Quality

Mfg. Co., 420 U.S. 276, 281 n.3 (1975) (due process claim);

NLRB v. G.W. Thomas Drayage & Rigging Co., 206 F.2d

857, 860–61 (9th Cir. 1953) (First Amendment claim). In

another case cited by NLRB, moreover, the Court found that

“extraordinary circumstances” warranted considering the

unexhausted claim. See Sure-Tan, Inc. v. NLRB, 467 U.S.

883, 896 n.7 (1984) (First Amendment claim).

We therefore conclude that we have jurisdiction to

consider NMFA’s constitutional challenges.

B.

We turn now to NMFA’s constitutional challenges. The

first such challenge is to the statutory provision that an ALJ

(such as the one who initially rendered the order appealed

14 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

from here) can be removed “only for good cause,” as

determined by the Merit Systems Protection Board. 5 U.S.C.

§ 7521. The NMFA contends that this provision violates

Article II, which it argues vests the sole removal power over

agency “officers” like this ALJ in the President. However,

the Supreme Court has traditionally recognized two

exceptions to that rule: (1) “principal officers” in

multimember expert bodies that perform “quasi[-]legislative

or quasi[-]judicial” functions, Humphrey’s Ex’r v. United

States, 295 U.S. 602, 628–29 (1935); and (2) “inferior

officer[s],” Morrison v. Olson, 487 U.S. 654, 689–93 (1988).

The Supreme Court recently granted a stay of an order

enjoining the President from removing an NLRB member.

See Trump v. Wilcox, No. 24A966 (May 22, 2025). And,

while this issue is still pending before the Supreme Court,

and Humphrey’s Executor remains good law, the NLRB, in

the letter to this Court on February 21, 2025, effectively

withdrew its opposition to the NMFA’s argument that the

“for cause” provision is unconstitutional.

However, the NLRB went on in the Letter to mention its

alternative argument that the supposed unconstitutionality of

the “for cause” provision was irrelevant in an absence of

harm. Put another way, a federal court does not sit to decide

abstract disputes that have no impact on the case at hand. See

Richardson v. McChesney, 218 U.S. 487, 492 (1910).

Specifically, the President never sought to remove the ALJ

who issued the order here. So long as an agency’s officers

are validly appointed (which NMFA does not contest as to

this ALJ), retrospective relief based on an unconstitutional

removal provision is available only where the provision

“inflict[s] compensable harm.” Collins v. Yellen, 594 U.S.

220, 259 (2021); see also CFPB v. CashCall, Inc., 35 F.4th

734, 742 (9th Cir. 2022) (“[A]t a minimum, the party

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 15

challenging an agency’s past actions must . . . show how the

unconstitutional removal provision actually harmed the

party.”). To satisfy the harm requirement, a party must

demonstrate that the challenged action or decision was taken

by an officer the President sought to but could not remove,

or that the removal provision otherwise affected or

influenced the challenged action or decision. See CashCall,

Inc., 35 F.4th at 743; see also Collins, 594 U.S. at 259–60

(discussing the harm requirement).

Despite the NLRB’s continued reliance on this

requirement, NMFA does not discuss the harm requirement

in its briefing, much less demonstrate that it is satisfied in

this case. Therefore, its for-cause removal challenge

necessarily fails on the merits. That is, even if we assume

arguendo that NLRB’s for-cause protections are invalid,

NMFA’s failure to show the slightest harm precludes

retrospective relief.

We next turn to NMFA’s argument that the NLRB’s

adjudication scheme violates the Seventh Amendment by

denying employers the right to a jury trial.

The Seventh Amendment provides that “[i]n Suits at

common law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shall be preserved.”

U.S. Const., amend. VII. To determine whether an action is

one “at common law,” or otherwise, courts consider whether

the action is akin to an action that would have traditionally

been brought before a court of law or a court of equity and

whether the remedies sought are legal or equitable in nature.

See SEC v. Jarkesy, 603 U.S. 109, 122–23 (2024). However,

because some causes of action sound in both law and equity,

the primary nature of the remedy is the “more important

consideration.” Id. at 123.

16 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

The Supreme Court has squarely held that an NLRB

unfair practice proceeding is not a “suit at common law” for

purposes of the Seventh Amendment. In NLRB v. Jones &

Laughlin Steel Corp., the Supreme Court considered a

Seventh Amendment challenge to the NLRB’s adjudication

scheme. 301 U.S. 1, 25 (1937). Applying the two-part test

outlined above, the Supreme Court reasoned that an NLRB

unfair practice proceeding was “one unknown to the

common law” because it was “a statutory proceeding” and

that “[r]einstatement of the employee and payment for time

lost” were “remedies appropriate to its enforcement,” so that

any “contention under the Seventh Amendment [was]

without merit.” Id. at 48–49. In subsequent decisions

concerning the constitutionality of other adjudication

schemes, the Supreme Court has continued to cite Jones as a

case concerning an adjudicatory proceeding that does not

implicate the Seventh Amendment. See Jarkesy, 603 U.S. at

137–38 (quoting Atlas Roofing Co. v. Occupational Safety

& Health Rev. Comm’n, 430 U.S. 442, 453 (1977)).

NMFA nevertheless argues that the NLRB’s

adjudication scheme violates the Seventh Amendment based

on the NLRB’s recent recognition of so-called “Thryv

remedies.” In Thryv, Inc. and International Brotherhood of

Electrical Workers, Local 1269, the Board clarified that

make-whole relief may address “all direct or foreseeable

pecuniary harms” that “employees suffer as a result of [an

employer’s] unfair labor practice.” 372 NLRB No. 22, at *1

(2022). “Direct harms” refer to harms “in which an

employee’s loss was the direct result of the [employer’s]

illegal conduct,” while “foreseeable harms” refer to harms

which the employer “knew or should have known would be

likely to result from its violation of the Act, regardless of its

intentions.” Id. at 20. NMFA suggests that those remedies

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 17

“sound in tort” and are “clearly compensatory damages,” so

that it was entitled to a jury trial under the Seventh

Amendment in this case.

After briefing concluded in this case, we decided a

different case concerning Thryv remedies that, while not

controlling on the jury trial question, nevertheless

foreshadowed our decision here. In Macy’s, Inc. v. NLRB,

we were tasked with determining whether the NLRB had

“improperly authorize[d] itself to award full compensatory

damages” in Thryv by awarding damages “for purportedly

foreseeable financial harms.” No. 23-150, slip op. at 36 (9th

Cir. Oct. 21, 2025). In concluding that the NLRB had not

exceeded its authority, we clarified that Thryv remedies are

“designed solely to restore the status quo” and are therefore

“equitable in nature.” Id. at 37 n.11. As we explained,

“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.” Id.

For reasons not relevant here, we ultimately “decline[d]

to entertain” the issue of whether employers were entitled to

jury trials in cases involving Thryv remedies. Id. at 35 n.10.

With that issue now squarely before us, we answer no.

As we held in Macy’s, Thryv remedies are equitable in

nature. In Jarkesy, the Supreme Court held that “monetary

relief can be legal or equitable.” 603 U.S. at 123. The

determinative question is whether the remedy “is designed

to punish or deter the wrongdoer, or, on the other hand,

solely to restore the status quo.” Id. Because the relevant

factors in Jarkesy “tie[d] the availability of civil penalties to

the perceived need to punish the defendant rather than to

18 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

restore the victim,” the Court held that those remedies were

legal, rather than equitable in nature. Id. at 123–24.

Here, however, there can be no doubt that Thryv

remedies are intended to restore the status quo. The Board

specifically explained that this remedy “do[es] not punish

bad actors, but rather implement[s] 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, Inc.,

372 NLRB No. 22, at *17 (2022), enforcement denied on

other grounds, 102 F.4th 727 (5th Cir. 2024). Accordingly,

the Seventh Amendment is not implicated.

We turn finally to NMFA’s argument that the combined

investigatory and adjudicatory functions of the NLRB are

inconsistent with separation of power principles such that the

NLRB’s decision violated NMFA’s Fifth Amendment right

to due process. Like NMFA’s Seventh Amendment

challenge, this argument fails on the merits.

Both we and the Supreme Court have long held that

“[t]he combination of investigative and judicial functions

within an agency does not, of itself, violate due process.”

United States v. Litton Indus., Inc., 462 F.2d 14, 16 (9th Cir.

1972) (citing FTC v. Cement Inst., 333 U.S. 683, 700–02

(1948)); see also Hirsh v. Justices of the Sup. Ct. of Cal., 67

F.3d 708, 714 (9th Cir. 1995). Rather, in determining

whether an agency’s functions give rise to a due process

violation, we consider whether a single individual is tasked

with performing both investigatory and adjudicatory

functions and “whether the average judge in the

adjudicator’s position is likely to be neutral, or whether there

is an unconstitutional potential for bias.” William Jefferson

& Co. v. Bd. of Assessment & Appeals, 695 F.3d 960, 964

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 19

(9th Cir. 2012). Moreover, to prevail on a due process

challenge sounding in the separation of powers, the

challenger must “overcome a presumption of honesty and

integrity in those serving as adjudicators.” Id.

NMFA has not demonstrated that the NLRB runs afoul

of either criterion. To start, NMFA has not argued that the

NLRB confers both investigative and adjudicatory powers

on a single individual within the agency. Nor could it. While

the General Counsel supervises the NLRB’s investigatory

function, the Board is responsible for performing its

adjudicatory function. See 29 U.S.C. § 153(d). We

recognized this division of authority in NLRB v. Aaron Bros.

Corp., in which we summarily rejected a claim that the

NLRB’s regional directors impermissibly exercised both

investigative and adjudicative functions. 563 F.2d 409, 413

(9th Cir. 1977) (per curiam) (“It is this combination of

responsibilities which the Company argues denied it Due

Process. The claim is not well founded.”). As the Supreme

Court and the D.C. Circuit have explicitly recognized, “[t]his

bifurcated structure reflects the intent of the Congress ‘to

differentiate between the General Counsel’s and the Board’s

final authority along a prosecutorial versus adjudicative

line.’” NLRB v. Fed. Lab. Rels. Auth., 613 F.3d 275, 278

(D.C. Cir. 2010) (quoting NLRB v. United Food & Com.

Workers Union, Local 23, 484 U.S. 112, 124 (1987)).

NMFA has also failed to demonstrate that either the

NLRB’s ALJs or its Board members have an

“unconstitutional potential for bias,” such that the

“presumption of honesty and integrity” should not apply to

them. William Jefferson & Co., 695 F.3d at 964. Indeed, in

its briefing, NMFA does not even argue, much less

demonstrate, that ALJs and Board members exhibit “actual

bias” or that any “pecuniary or personal interest” that they

20 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

might have in the outcome of the proceedings over which

they preside creates even an “appearance of partiality that

violates due process.” Stivers v. Pierce, 71 F.3d 732, 741

(9th Cir. 1995) (emphasis removed). We thus reject this

further challenge to the constitutionality of the NLRB’s

structure.

C.

Finally, NMFA challenges the NLRB’s decision on the

merits. The NLRB found that NMFA had violated Section

8(a)(1) of the NLRA by (1) “interrogat[ing] Press about

discussing his wages,” (2) “orally promulgat[ing] an overly

broad and discriminatory directive prohibiting [Press] from

discussing his wages and housing subsidy with other

employees and prohibiting him [from] discussing pest

control issues with third parties,” (3) “threaten[ing] [Press]

with unspecified reprisals if he continued to engage in

protected activities,” and (4) “discharg[ing] Press for

engaging in actual or perceived protected activities.”

Three of the four findings are not properly before us.

Below, NMFA failed to raise any contention regarding

whether there was substantial evidence that it had repeatedly

questioned Press about discussing his wages, so it has

forfeited any argument on this appeal as to that finding. See

NLRB v. IBEW, Local 952, 758 F.2d 436, 439–40 (9th Cir.

1985). Although in its pleadings below, NMFA briefly

complained of the NLRB’s findings that it promulgated

overly broad and discriminatory directives and threatened

Press, it did not meaningfully develop those arguments, let

alone claim they were unsupported by substantial evidence,

so they are similarly forfeited. See In re Pena, 974 F.3d 934,

940 n.3 (9th Cir. 2020). The NLRB is therefore entitled to

summary enforcement of its first three findings.

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 21

All that remains is the NLRB’s finding that NMFA

discharged Press for engaging in actual or perceived

concerted activities. To determine whether an employer

violated Section 8(a)(1), we consider whether substantial

evidence supports the Board’s application of the Wright Line

test. See Wright Line, 251 NLRB 1083 (1980). “Under

Wright Line, the General Counsel must make a showing

sufficient to support the inference that protected conduct was

a motivating factor in the employer’s decision.” United

Nurses Ass’ns, 871 F.3d at 778. The Board may then “infer

a discriminatory motive from direct or circumstantial

evidence.” Id. If the Board finds that an employer had an

unlawful motive, then the burden shifts to the employer to

demonstrate that “it would have taken the challenged action

even in the absence of the protected activity.” Healthcare

Emps. Union v. NLRB, 463 F.3d 909, 923 (9th Cir. 2006).

“An employer cannot prove this affirmative defense where

its asserted reasons for a discharge are found to be

pretextual.” United Nurses Ass’ns, 871 F.3d at 779.

At the outset, the parties dispute whether Press engaged

in protected activity by discussing his compensation with

other workers. For employee activity to be protected under

the NLRA, it must be both concerted (i.e., done with or on

behalf of other employees) and done for mutual aid or

protection (i.e., done with the intention of improving the

terms and conditions of their employment). See NLRB v.

Mike Yurosek & Son, Inc., 53 F.3d 261, 264–66 (9th Cir.

1995). Although we have not previously held that discussing

compensation qualifies as protected activity, the NLRB has

long recognized as much. See, e.g., Triana Industries, Inc.,

245 NLRB No. 161, at *1 (1979) (explaining that the NLRA

“encompasses the right of employees to ascertain what wage

rates are paid by their employer” because “wages are a vital

22 NLRB V. N. MOUNTAIN FOODHILLS APARTMENTS, LLC

term and condition of employment”); see also Eastex, Inc. v.

NLRB, 437 U.S. 556, 569 (1978) (“Few topics are of such

immediate concern to employees as the level of their

wages.”). We agree with the NLRB. Here, Press spoke with

other employees about his compensation in response to the

challenging working conditions they all faced, and—based

on Matteson’s references to a “crisis situation,” a “hornets’

nest,” and “damage control”—those discussions appear to

have sparked conversation among other workers about their

own compensation. So it seems apparent both that discussing

compensation qualifies as a protected activity and that the

NLRB’s determination that Press was engaged in such

activity was supported by substantial evidence.

The NLRB’s subsequent finding that NMFA was aware

of that activity and that the conduct served as a motivating

factor in NMFA’s decision to terminate Press was also

supported by substantial evidence. On Press’s third day at

the Complex, Matteson told Press that his decision to discuss

his compensation with the other workers was “making [her]

life really tough” and was “just this red-hot issue.” When

Press stated that he was “very sorry” that the other workers

knew how much he was being paid, Matteson responded

“[s]o am I.” Finally, Matteson told Press that his discussions

with the other workers about his compensation had “not built

camaraderie at all,” and Soto emphasized that these

discussions had “backfired, really bad.” In light of

Matteson’s statements in that meeting, the ALJ had a

substantial basis to conclude that Press’s protected activity

played a meaningful role in NMFA’s decision to discharge

him the following day.

The burden therefore shifts to NMFA to demonstrate that

it would have discharged Press when it did regardless of his

protected activity. NMFA argues that the discharge decision

NLRB V. N. MOUNTAIN FOOTHILLS APARTMENTS, LLC 23

was based on Press’s work performance and that it had

similarly discharged other workers shortly after their first

day because they were unable to complete work projects.

However, neither Matteson nor Soto raised the issue of

Press’s work performance during their closed-door meeting

with him the day before he was discharged. Instead,

Matteson and Soto repeatedly referenced and expressed

frustration about Press’s compensation-related discussions

with the other workers. Moreover, NMFA’s claim that it has

discharged other new hires under similar conditions is based

on vague and conclusory testimony by Gareau, Mims, and

Scott, only one of whom, Mims, provided the name (and

only the first name) of a new hire who had been so

discharged.

Under these circumstances, the NLRB’s finding that

NMFA violated Section 8(a)(1) by discharging Press for

engaging in actual or perceived protected activities was

supported by substantial evidence. Accordingly, we grant

NMFA’s application for enforcement.

* * *

For the reasons stated above, the NLRB’s application for

enforcement of its order dated February 21, 2024 is

GRANTED.