NLRB v. Starbucks Corp.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0305p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

NATIONAL LABOR RELATIONS BOARD,

│

Petitioner, │

│

WORKERS UNITED, > No. 23-1767

│

Intervenor, │

│

v. │

│

│

STARBUCKS CORPORATION, │

Respondent. │

┘

On Application for Enforcement of an Order of the National Labor Relations Board.

Nos. 07-CA-292971; 07-CA-293916.

Argued: October 31, 2024

Decided and Filed: November 5, 2025

Before: BATCHELDER, STRANCH, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Eric Weitz, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Petitioner. Sarah M. Harris, WILLIAMS & CONNOLLY LLP, Washington, D.C., for

Respondent. ON BRIEF: Ruth Burdick, Milakshmi Rajapakse, David Seid, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Sarah M. Harris, Lisa S.

Blatt, Tyler J. Becker, Dana S. Gotfryd, WILLIAMS & CONNOLLY LLP, Washington, D.C.,

for Respondent.

READLER, J., delivered the opinion of the court in which BATCHELDER, J.,

concurred. STRANCH, J. (pp. 36–45), delivered a separate opinion concurring in the judgment

in part and dissenting in part.

No. 23-1767 NLRB v. Starbucks Corp. Page 2

_________________

OPINION

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READLER, Circuit Judge. After working as a shift supervisor at a Starbucks café for

nearly three years, Hannah Whitbeck led a movement to organize a union there. Several months

into that campaign, Starbucks fired her. In its termination letter, the company justified its

decision with a seemingly innocuous explanation: Whitbeck left an employee alone in the café

for roughly half an hour, without telling any supervisor or co-manager, in violation of company

policy.

Through the filing of an administrative complaint, the National Labor Relations Board

challenged this explanation. In the Board’s view, Starbucks discharged Whitbeck due to her

organizing activity, thereby committing an unfair labor practice in violation of § 8(a)(1), (3), and

(4) of the National Labor Relations Act. An Administrative Law Judge agreed. Starbucks

Corp., 372 NLRB No. 122, slip op. at 21, 2023 WL 5137739 (Aug. 9, 2023). The Board later

affirmed that decision and expanded the statutory remedy, ordering Starbucks to compensate

Whitbeck for any “direct or foreseeable pecuniary harms” suffered because of the anti-union

discrimination against her. Id. at 4–5.

We grant the Board’s petition for enforcement of its decision that Starbucks committed

an unfair labor practice. But because the Board exceeded its statutory authority in awarding

Whitbeck “direct or foreseeable” monetary damages, we vacate the remedy and remand.

I.

A. Starbucks hired Whitbeck in 2019 to work as a barista at its Main and Liberty store in

Ann Arbor, Michigan. Several weeks later, the company promoted her to shift supervisor. In

that role, Whitbeck maintained “all the duties of a barista” and assumed the responsibility to

“help[] guide the work of others and assist[] with ordering and accounting.” J.A. at 977.

In January 2022, Whitbeck cofounded an effort to organize a union at her store. With the

help of Workers United, a labor union, Whitbeck discussed among her colleagues what she

No. 23-1767 NLRB v. Starbucks Corp. Page 3

deemed to be the virtues of organizing, directing those interested to sign a union authorization

card. Through these efforts, Whitbeck was widely viewed by her peers as the lead organizer at

the Main and Liberty store.

Over the next two months, Whitbeck engaged in several visible measures to achieve her

organizing ends. She emailed Starbucks’s then–Chief Executive Officer, demanding that the

company recognize Workers United as the Main and Liberty store’s collective bargaining

representative. She conducted a radio interview about the campaign. She began wearing union

buttons in the café. She answered customer questions about unionizing. She appeared in a social

media post supporting unionization. She placed union stickers in the store. And she wrote

“Brewing Solidarity” on the store’s “community board,” a chalkboard open to messages from

both Starbucks and the public.

In early March 2022, the Board held a videoconference hearing regarding Workers

United’s petition to represent employees at various Starbucks stores in the Ann Arbor area,

including the Main and Liberty location. Although she did not participate, Whitbeck attended

the hearing, with her name and picture visible. On that same video call for a brief period of time

was Paige Schmehl, the Starbucks district manager overseeing about ten shops around Ann

Arbor, including the Main and Liberty location. Schmehl noticed Whitbeck’s attendance at the

hearing. Schmehl and Erin Lind, the temporary manager of the Main and Liberty store, were

also aware that store employees were organizing, including by their wearing union buttons at

work. Shortly after the kickoff of that campaigning, Lind, at Schmehl’s direction, posted two

flyers at the Main and Liberty store. One expressed Starbucks’s management’s “sincere hope”

that employees “w[ould] see” they do not need to unionize. Id. at 797. The other stated that the

act of signing a union card “carries legal weight” and encouraged employees to “get all the

facts!” before signing. Id. at 820.

To further its attempt to organize, Workers United scheduled “sip-ins” at two other

Starbucks locations in Schmehl’s district. At a March 20, 2022, sip-in at the Zweeb Street

Starbucks location, a non-Starbucks-affiliated union supporter distributed union buttons and

literature as well as Post-it notes for people to affix supportive messages on the store’s

community board. Note that Whitbeck did not work at that store and did not attend the sip-in.

No. 23-1767 NLRB v. Starbucks Corp. Page 4

But Schmehl sat in the store for the event’s full three-hour duration, seemingly honoring the

substitute store manager’s request for “support” during the sip-in. Schmehl spoke to no one. But

she did remove at least three notes from the community board for purportedly being inconsistent

with company policy, which instructed that the board not include “[a]dvertisements,” “[n]otices

or [a]nnouncements that are political or religious in nature,” “[n]otices that disparage Starbucks,”

or “[a]ny material that could be deemed offensive, insulting or derogatory.” Id. at 945.

B. Amid these organizing efforts, an episode involving Whitbeck and her peers occurred

at the Main and Liberty store. At the start of her shift on February 27, 2022, Whitbeck messaged

Lind that multiple baristas had complained about working with B.G., another shift supervisor at

the Main and Liberty store, with co-equal authority to Whitbeck’s. Whitbeck then wrote in the

daily book, where employees document store incidents, that she “[d]id nothing like always 🙂.”

Id. at 920. That notation was an apparent sarcastic reference to B.G.’s alleged remarks that

Whitbeck “never does anything” at work. Id. at 185. When B.G. arrived for his shift at 3:00

p.m., he read this entry and, in turn, criticized Whitbeck for acting unprofessionally. As they

argued, B.G. asked a nearby coworker if she knew how much “shit [Whitbeck] talk[ed]” about

her. Id. at 375. Afterward, B.G. and Whitbeck stopped speaking for several hours.

That day, Whitbeck was scheduled to work until 7:00 p.m. with B.G. and Lucien

Meloche, a barista, both scheduled to work until 10:30 p.m. B.G. was also scheduled to take a

thirty-minute break—from 6:45 p.m. to 7:15 p.m.—meaning Meloche would be working alone if

B.G. was not there when Whitbeck left the store at the end of her shift. Starbucks’s corporate

policy, however, required at least two employees to be present in an open café (the “two-

employee rule”). The rule was designed to protect employee safety, a particular concern for

“high incident” stores like the Main and Liberty location, which averaged roughly two to three

occasions of customer violence or related issues each week. So when only two employees are

working and one has a scheduled break, the policy explained, the on-break employee must

remain in the store, receiving compensation for the break’s duration.

Whitbeck’s grandfather reportedly had suffered a heart attack earlier that day, and she

intended to visit him immediately after her shift ended at 7:00 p.m. So, she asked B.G. to take

his break early. But B.G. refused and instead began his break shortly before 7:00 p.m. Whitbeck

No. 23-1767 NLRB v. Starbucks Corp. Page 5

nevertheless exited the store at the end of her shift, leaving just Meloche on the premises.

Though Whitbeck did not contact her supervisors to alert them that Meloche would be alone in

the store or to request support, she texted Lind at 6:55 p.m. to complain about the earlier incident

with B.G. Whitbeck later texted Meloche to confirm whether B.G. had returned. According to

Meloche, B.G. returned close to 7:30 p.m. In the interim, one customer entered the café.

The next day, Whitbeck submitted a written incident report, primarily about her verbal

altercation with B.G. In her report, Whitbeck admitted to leaving Meloche alone, but explained

that “[she] would have stayed if [she] could but there was something serious [she] needed to get

to after work.” Id. at 803. Lind met with Whitbeck that day to discuss the report. Lind did not

probe further into why Whitbeck could not work past 7:00 p.m., and Whitbeck gave no more

details on the topic. Per Starbucks policy, Lind updated Schmehl about the two incidents

revealed in Whitbeck’s report (i.e., the verbal altercation and the violation of the two-employee

rule). Lind also spoke with B.G. about the incidents, later receiving a written statement from

him.

These events prompted Schmehl and Lind to contact Starbucks’s human resources

department. Lind consulted the department regarding the incident. Schmehl, for her part,

forwarded B.G.’s statement to the department, and later engaged with the department on

disciplinary options for Whitbeck and B.G. Schmehl also sought a statement from Meloche,

which she received on March 20, the same day as the “sip-in” described earlier. The next day,

Schmehl decided to terminate employment for both B.G. and Whitbeck, which the legal

department approved on April 3. According to her notice-of-separation letter received on April

11, Whitbeck was fired for “fail[ing] to communicate in line with Starbucks [sic] mission and

values and fail[ing] to meet expectations in [her shift supervisor] role” during the night of her

run-in with B.G. Id. at 816. By contrast, B.G. was fired on April 14 for saying the word “shit”

in a customer-facing area of the store. Id. at 818.

C. On Whitbeck’s behalf, Workers United pursued unfair-labor-practice charges against

Starbucks. The primary charge, filed with the Board on April 11, claimed that Starbucks

unlawfully terminated Whitbeck to stifle organizing efforts. The Board in turn filed a

consolidated complaint alleging that Starbucks violated the NLRA by discharging Whitbeck in

No. 23-1767 NLRB v. Starbucks Corp. Page 6

purported retaliation for her union activity, her participation in a Board hearing, and Workers

United’s filing of a prior charge regarding Whitbeck.

Starbucks denied the claims. The company maintained that Whitbeck was permissibly

terminated for violating Starbucks’s two-employee rule and failing to request coverage from

supervisors. But the ALJ, and a three-member majority of the Board on appeal, disagreed. To

their minds, Whitbeck showed sufficient “union animus” by her supervisors to satisfy the

retaliation claim. Starbucks Corp., 372 NLRB No. 122, slip op. at 4–5, 21. As a remedy, the

Board ordered Starbucks to, among a laundry list of other directives, “[m]ake . . . Whitbeck

whole for any loss of earnings and other benefits, and for any other direct or foreseeable

pecuniary harms, suffered as a result of the discrimination against her.” Id. at 5. The “myriad”

components of such “direct or foreseeable pecuniary harms” can include interest and late fees on

credit cards, penalties on early withdrawals from retirement accounts, and the loss of a car or

home from missed loan or mortgage payments. Thryv, Inc., 372 NLRB No. 22, slip op. at 9,

2022 WL 17974951 (Dec. 13, 2022) (quoting Voorhees Care & Rehab. Ctr., 371 NLRB No. 22,

slip op. at 4 n.14, 2021 WL 3812220 (Aug. 25, 2021)). Such capacious relief, the Board

explains, “is necessary to more fully effectuate the make-whole purposes of the [NLRA].” Id. at

7.

Starbucks now seeks denial or vacatur of the Board’s order for two reasons: The Board’s

unfair-labor-practice determination lacks substantial evidence; and the Board’s award of all

“direct or foreseeable pecuniary harms,” besides lost earnings and benefits, exceeds its remedial

authority provided in § 10(c) of the NLRA.

II.

We begin with the substantial evidence challenge. At its core, the NLRA prohibits

employers from firing employees based on their union-related activity. See 29 U.S.C. § 158(a).

A burden-shifting process frames the statutory inquiry. At the outset, the Board must show that

“anti-union animus” motivated Whitbeck’s discharge. Birch Run Welding & Fabricating, Inc. v.

NLRB, 761 F.2d 1175, 1179 (6th Cir. 1985). If it does, the burden shifts to Starbucks to show

that Whitbeck would have been fired even if she had not engaged in protected activity. Id.

No. 23-1767 NLRB v. Starbucks Corp. Page 7

Through it all, we ask only whether “the record considered as a whole” supports the Board’s

factual conclusions on these fronts “by substantial evidence.” 29 U.S.C. § 160(e). Substantial

evidence exists when “the record viewed as a whole provides sufficient evidence for a reasonable

factfinder to reach the conclusions the Board has reached.” NLRB v. Galicks, Inc., 671 F.3d 602,

607 (6th Cir. 2012) (citation omitted).

A. Beginning with the threshold inquiry, our task is to consider whether substantial

evidence supports the Board’s conclusion that anti-union animus motivated Starbucks’s conduct.

Birch Run Welding & Fabricating, Inc., 761 F.2d at 1179. To meet that standard, the Board

must make three showings: Whitbeck engaged in protected activity; Starbucks knew of that

protected activity; and Starbucks acted “on the basis of anti-union animus.” FiveCAP, Inc. v.

NLRB, 294 F.3d 768, 777 (6th Cir. 2002). Here, only the last factor—whether Starbucks acted

out of anti-union animus—is at issue. On that point, the ALJ agreed with the union’s assertion

of animus on Starbucks’s part, a determination (along with its associated factual findings) later

adopted by the Board. Substantial evidence supports that conclusion.

Disparate Treatment. In assessing whether anti-union animus guided the discharge, we

may consider whether there are any relevant comparators to Whitbeck. Circumstantial evidence

of animus includes “disparate treatment of certain employees compared to other employees with

similar work records or offenses.” W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995).

Here, several pieces of evidence indicate that termination was not the anticipated or common

penalty for this infraction, and that at least one other employee engaged in the same conduct as

Whitbeck but did not have their employment terminated as a result.

Consider first that just two years earlier another shift supervisor at the Main and Liberty

store, Adam Hess, received a final warning (but was not terminated) for violating the two-

employee rule at least twice and for “putting his hands on people’s shoulders to move them out

of the way.” J.A. at 264. Indeed, it was only months later that Hess, after continuing to break

the two-employee rule and repeatedly making inappropriate comments in the café, had his

employment terminated. Contrast that chain of events to those involving Whitbeck, who was

fired after she violated the two-employee policy just once even though she lacked any

disciplinary history and appears to have been a model employee. That type of “disparate

No. 23-1767 NLRB v. Starbucks Corp. Page 8

treatment” can reflect anti-union animus. See, e.g., Airgas USA, LLC v. NLRB, 916 F.3d 555,

565 (6th Cir. 2019); NLRB v. Main St. Terrace Care Ctr., 218 F.3d 531, 542 (6th Cir. 2000).

Starbucks raises several counterpoints to undermine the probative value of this evidence.

None are convincing. For instance, Starbucks maintains that Hess’s violations stemmed from a

“job aid” concerning entering a store alone, which Starbucks says triggers “different risks” to

employees and customers than leaving an open café to a single barista, as Whitbeck did.

Perhaps. But perhaps not. Starbucks, we note, does not explain how those risks differ. Nor does

this seem to be an obvious conclusion to draw, when each action still results in an employee

working alone, unable to receive help from a coworker should a safety concern arise. Whether

that employee had entered the store alone, or simply remained in the store while the last on-duty

coworker left, seemingly is irrelevant. Indeed, the job aid appears to be a red herring, as

Starbucks purports to treat the document as merely complementary to more authoritative

guidance providing that corrective action depends on the infraction’s seriousness and

surrounding circumstances. And we fail to see how Hess’s multiple violations were any less

serious than Whitbeck’s. True, as Starbucks notes, Whitbeck’s violation of the two-employee

rule occurred at night and in a “high incident” store. But Starbucks’s disciplinary guidance

provides no escalating penalties for such geographic or temporal nuances.

Starbucks next maintains that Whitbeck committed an “aggravated violation” of the two-

employee rule. Despite knowing her departure violated corporate policy, the company explains,

Whitbeck did not timely inform any supervisor that Meloche remained in the store by himself.

That failure, says Starbucks, foreclosed any opportunity for the company to adequately safeguard

the store, thereby justifying Whitbeck’s discharge. It may be the case, as Starbucks contends,

that the company could have responded during the 30-minute period when Meloche worked

alone. Yet that point glosses over the counterpoints. One is that the policy expressly anticipated

a violation of the two-employee rule and specified that the appropriate discipline was a warning,

without any suggestion that there are differing degrees of the violation, such as “aggravating

circumstances.” But even accepting Starbucks’s assertion that “aggravating circumstances,”

such as Whitbeck’s noncommunication, “warrant[] immediate dismissal,” Starbucks Br. 27, over

six weeks passed between when Whitbeck admitted to her infraction and her eventual discharge.

No. 23-1767 NLRB v. Starbucks Corp. Page 9

During that time, Starbucks did not suspend Whitbeck, demote her, or reduce her hours at all—

despite this alleged urgency to fire her. Whitbeck remained in her shift-supervisor role, at her

same weekly hours, for six full weeks. And then there is the comparison to Hess, who twice

failed to disclose his violation of the two-employee policy to management yet received only a

final written warning, continuing to work at the Main and Liberty store for months thereafter.

Looking to comparators more broadly, Starbucks highlights “five to ten” instances where

Schmehl terminated employees without disciplinary history for violating “safety and security

policies.” But the record sheds no further light on these alleged analogues, in particular, whether

they concerned a similar violation of the two-employee policy. In fact, Schmehl testified that

she was “not aware of anyone that’s ever been a discipline [sic] for leaving a barista alone in a

store.”

No more availing is Starbucks’s attempt to analogize Whitbeck and B.G.

Notwithstanding that Starbucks discharged both employees in the middle of April 2022, the fact

remains that B.G. was fired for the distinct reason of “us[ing] profanity in front of house,” J.A. at

818, and nothing in the record specifies how the company’s discipline for this infraction stacks

up against that for violating the two-employee rule. Just because these terminations concerned

“conduct that occurred on the same day and involved both” B.G. and Whitbeck, Starbucks Br.

29, in other words, does not mean the two automatically form apt comparators. Nor does the

ALJ’s finding that B.G. had a reputation for holding “anti-union views” change our thinking.

J.A. at 458. In some cases, that fact may be relevant in discrediting an employer’s purported

animus. But here, one could just as well conclude that Starbucks was unlawfully heavy-handed

with Whitbeck while still willing to discipline anti-union employees when warranted. In short,

the issue does not cut decisively in either direction.

That said, the Board’s comparator evidence is not without flaws. Case in point is the

Board’s reliance on Starbucks’s job-aid guidance, which arguably suggested that Whitbeck

should receive a punishment less than termination due to her leaving Meloche alone in the café.

The Board concluded that Starbucks’s decision to terminate Whitbeck was at odds with the

instructions in the job aid, thereby reflecting anti-union animus. But that document does not

stand alone with respect to company disciplinary procedures. Rather, by its own terms, the job

No. 23-1767 NLRB v. Starbucks Corp. Page 10

aid merely “complement[s]” other binding guidance. Id. at 847. Looking more broadly,

Starbucks’s employee-resources manual clarifies the possibility of immediate discharge “[i]n

cases of serious misconduct,” id. at 966, and the Board’s comparator evidence centers on just one

similarly situated employee. But on the whole, the Board supported its order using more than an

inference of disparate treatment. And considering Starbucks’s failure to articulate the probative

value of the job aid as well as the lack of discipline for Hess’s repeated misconduct, this

comparator evidence supports the Board’s conclusion.

Timing. Close “proximity in time between the employees’ union activities and their

[discipline]” can be relevant in assessing animus. W.F. Bolin, 70 F.3d at 871. Whitbeck was

terminated on April 11, despite her violations occurring in late February. In the lead up to

Whitbeck’s termination, several material events occurred. Seventeen days before Schmehl

recommended termination, she joined the videoconference hearing on Workers United’s petition

and noticed Whitbeck’s attendance. A day before that recommendation, Schmehl attended the

“sip-in” at the Zweeb Street store, detailed earlier. And at least five days before Starbucks’s

legal department approved Schmehl’s decision, it learned about Workers United’s first unfair

labor practice charge filed on Whitbeck’s behalf. While none of these events on its own is

especially indicative of anti-union animus, each timespan roughly lands within the realm of

temporal proximity we have previously deemed suggestive of anti-union animus. See, e.g., Bobo

v. United Parcel Serv., Inc., 665 F.3d 741, 756 (6th Cir. 2012) (deeming two-week gap between

protected activity and discharge probative of anti-union animus); NLRB v. Roemer Indus., Inc.,

824 F. App’x 396, 405 (6th Cir. 2020) (same). Taking these events together thus raises at least a

suspicion of improper conduct by Starbucks.

Starbucks counters by asserting that the Board overlooked critical context behind each

incident. With respect to the six-week interim between Whitbeck’s misconduct and discharge,

for example, Starbucks explains that it simply needed time to properly investigate the incident.

As to the “sip-in,” while it occurred a day before Whitbeck’s discharge, Starbucks notes that

Whitbeck did not attend that event, nor did it take place at the Main and Liberty store. And as to

the filing of Workers United’s first charge, Schmehl had already recommended Whitbeck’s

termination at that point. A more relevant timing consideration, says Starbucks, is that Schmehl

No. 23-1767 NLRB v. Starbucks Corp. Page 11

recommended termination one day after receiving Meloche’s statement (which, recall, happened

on the same day as the “sip-in”), and that Starbucks fired B.G. shortly thereafter for his

misconduct on the day of the altercation.

While lending credence to Starbucks’s position, these considerations have their caveats,

especially in light of our deference to the Board’s credibility determinations. See, e.g., Galicks,

671 F.3d at 607. Although Schmehl processed Whitbeck’s termination unaware of the Workers

United charge, Starbucks’s legal department—aware of the then-ongoing labor proceedings—

consulted with Schmehl twice and gave its requisite approval to the discharge. Likewise, the

lack of a direct tie between Whitbeck and the “sip-in” does not foreclose the possibility that the

latter affected the former’s employment. Considering that Workers United filed petitions to

represent both the Zweeb Street store where the “sip-in” occurred as well as the Main and

Liberty location, Schmehl could have intended to impede key actors like Whitbeck in the broader

organizing campaign after witnessing the campaign’s scale. As to Meloche’s statement, it

consisted merely of a phone call in which he recounted “hearing about the break situation from

[Whitbeck],” J.A. at 999, and a ninety-one-word text message explaining how Whitbeck “left

[him] alone at the store,” id. at 812. Neither comment gave Starbucks new details about

Whitbeck’s misconduct that she had admitted to a month earlier, let alone details damning

enough to warrant her termination a day later. Finally, the delayed discipline for B.G.’s one-time

use of profanity around customers sheds little light on Starbucks’s reasoning for postponing

Whitbeck’s discharge after she, again, admitted to a policy violation that, in the company’s

words, “warranted immediate dismissal.” Starbucks Br. 27. In the end, while it may be merely

coincidental that Starbucks fired Whitbeck during or shortly after her protected activity, this

record evidence helps support the Board’s conclusion.

General Anti-Union Animus. Lastly, consider Starbucks’s purported general animus

toward Workers United in tandem with its knowledge of Whitbeck’s organizing efforts.

“[E]xpressed hostility towards unionization combined with knowledge of the employees’ union

activities” can support a Board’s animus finding. W.F. Bolin, 70 F.3d at 871. The record

contains one incident evidencing such hostility: the “sip-in.” Recall, Schmehl attended the

demonstration for its full three-hour duration. Although Schmehl’s attendance was prompted by

No. 23-1767 NLRB v. Starbucks Corp. Page 12

a substitute store manager’s request for support, two aspects of that visit raise modest suspicions.

One, Schmehl did not speak with a single employee, a seemingly odd tack for a visiting district

manager. Indeed, as Schmehl testified, when visiting other stores for upwards of three hours, she

would do so to, for instance, review the “plan for the next promotional period” with the

respective store manager. J.A. at 650. Two, Schmehl repeatedly removed pro-union notes from

a community board, a responsibility that might more squarely fall within the job descriptions of

lower-level employees, including the store manager who had attended the same “sip-in.” See id.

at 977 (“The store manager is ultimately in charge of all store operations . . . .”). Taken together,

this conduct could suggest a general hostility toward Workers United’s organizing efforts, of

which Schmehl knew Whitbeck was a supporter.

Starbucks offers a host of retorts. We agree, as Starbucks observes, that the Board cannot

support its animus determination based solely on a perception of general hostility toward

unionizing. Rather, the Board must make a “particularized showing” that the employer acted

with animus toward the employee. FiveCAP, 294 F.3d at 781. But as already discussed, the

Board supplemented its analysis of the “sip-in” with other indications of animus—all of which

were tailored to Whitbeck. No further availing are Starbucks’s assertions that Schmehl acted

lawfully and followed company policy in removing the pro-union notes. Like Starbucks’s

observations that it had a right to legally monitor non-employee union activity, see Oakwood

Hosp. v. NLRB, 983 F.2d 698, 703 (6th Cir. 1993) (noting an employer’s general right to observe

non-employee union organizers), and that Schmehl and Lind might not have known that

Whitbeck served as a lead union organizer, Starbucks’s private-bulletin-board policy is beside

the point. Schmehl acted in a way at odds with her ordinary district-manager responsibilities

when attending the demonstration and was at the same time aware of Whitbeck’s open support

for the organizing union. Those facts, coupled with the others discussed, render the Board’s

analysis in accord with our precedent.

B. Because the Board has established its prima facie case, the burden shifts to Starbucks

“to prove that it would have made the same employment decision regardless” of Whitbeck’s

union activity. Ctr. Constr. Co. v. NLRB, 482 F.3d 425, 435 (6th Cir. 2007). “Simply showing

No. 23-1767 NLRB v. Starbucks Corp. Page 13

that the evidence supports an alternative story is not enough.” Galicks, 671 F.3d at 608. Rather,

Starbucks “must show that the Board’s story is unreasonable.” Id.

Starbucks believes that is the case for two reasons. First, according to the company, the

Board ignored that Whitbeck was fired for violating the two-employee rule as well as failing to

communicate a need for coverage in the Main and Liberty location. Second, the Board

purportedly ignored evidence that other employees had been fired for violating Starbucks’s

safety policies, even when they lacked any disciplinary history.

Both retorts should sound familiar. After all, they parallel Starbucks’s counterarguments

to its alleged disparate treatment of Whitbeck, points we have already rejected. As before,

Starbucks fails to reconcile Whitbeck’s discharge with the conflicting guidance in its job aid, and

its mere warning of Hess despite his multiple uncommunicated violations of the two-employee

rule. Other than a vague description of Schmehl’s immediate terminations of other employees

who breached “safety and security policies,” Starbucks offers little more to prove that its

purported analogues committed offenses comparable to Whitbeck’s. Again, the lone comparator

with sufficient specification in the record—B.G.—was discharged for the distinct reason of using

an expletive in a customer-facing area of the store. In short, the Board had sufficient evidence to

conclude that Starbucks failed to prove an affirmative defense.

C. No silver bullet decisively establishes Starbucks’s improper motive in discharging

Whitbeck. But under our precedent, it is enough that, taking the record as a whole, substantial

evidence supports the Board’s prima facie case and defeats the company’s affirmative defenses.

The findings here clear that threshold. Starbucks terminated Whitbeck while aware of her

organizing efforts. And during the ensuing administrative proceedings, Starbucks failed to

undermine an assortment of signals indicating Whitbeck’s discharge was fueled, at least in part,

by anti-union animus. Even if none of those signals standing alone would suffice for us to affirm

the Board’s decision, that is not the test. Evaluating, as we must, whether substantial evidence

supports the Board, we agree that it does.

No. 23-1767 NLRB v. Starbucks Corp. Page 14

III.

That brings us to the remedy. Once the Board identifies an unfair labor practice, § 10(c)

of the NLRA authorizes the Board to order the employer to “cease and desist” from that practice

and to “take such affirmative action, including reinstatement of employees with or without back

pay, as will effectuate the policies of th[e] [NLRA.]” National Labor Relations Act, ch. 372,

§ 10(c), 49 Stat. 449, 454 (1935) (codified as amended at 29 U.S.C. § 160(c)). Although that

statutory language has been in place since 1935, the Board recently gave the latter clause new

meaning. Specifically, the Board now reads the phrase “affirmative action” to authorize it to

compensate “affected employees for all direct or foreseeable pecuniary harms suffered as a result

of the [employer’s] unfair labor practice.” Thryv, Inc., 372 NLRB No. 22, slip op. at 13.

Applying this so-called Thryv remedy here, the Board ordered Starbucks to make “Whitbeck

whole for . . . any other direct or foreseeable pecuniary harms[] suffered as a result of the

discrimination against her.” Starbucks Corp., 372 NLRB No. 122, slip op. at 5.

If that latter remedy sounds capacious, it should. In Thryv, three members of the Board

(over a two-member dissent) “revisit[ed] and clarif[ied] [its] existing practice of ordering relief”

for unlawful conduct. Thryv, 372 NLRB No. 22, slip op. at 6. In particular, the Board located

newfound, categorical authority to “order respondents to compensate affected employees for all

direct or foreseeable pecuniary harms.” Id. at 1. It arrived at that conclusion both from its

reading of § 10(c)’s text and by pointing to a handful of the Board’s past cases that, in its view,

awarded relief beyond just backpay and reinstatement. Id. at 7–11. Having done so, the Board

then crafted a “myriad of other possible examples” of direct or foreseeable harms: childcare

costs, transportation expenses, credit card debt (including interest and late fees thereof), penalties

on early withdrawals from retirement accounts, and the loss of a car or home from missed loan

and mortgage payments. Id. at 9 (quoting Voorhees Care & Rehab. Ctr., 371 NLRB No. 22, slip

op. at 4 n.14). The Board added that it would be ordering the same relief “in all cases in which

[its] standard remedy would include an order for make-whole relief,” id. at 13, a practice it

maintains to date—including here, Starbucks, 372 NLRB No. 122, slip op. at 1 n.3. Not even

contrary circuit decisions would dissuade the Board from pursuing its refashioned approach, save

for where binding precedent unquestionably forecloses it from doing so. See Airgas USA, LLC,

No. 23-1767 NLRB v. Starbucks Corp. Page 15

373 NLRB No. 102, slip op. at 1 n.2, 2024 WL 4251820 (Sept. 18, 2024) (clarifying the Board

will continue applying Thryv in future orders, even if it receives adverse decisions from Circuit

Courts).

A. Understanding the Board’s remedial authority to be equitable and not legal in nature,

Starbucks disagrees that the agency’s statutory authority to take “affirmative action” to remedy

NLRA violations encompasses the power to award broad monetary relief envisioned under

Thryv. Before reaching the merits of that claim, however, we must first address a threshold

issue: forfeiture. “No objection that has not been urged before the Board, its member, agent, or

agency,” the NLRA says, “shall be considered by the [federal] court [of appeals], unless the

failure or neglect to urge such objection shall be excused because of extraordinary

circumstances.” 29 U.S.C. § 160(e). As the Board sees things, Starbucks forfeited its various

challenges to § 10(c)’s scope by failing to raise them before the Board.

Not so. During the underlying administrative proceeding, Starbucks repeatedly

challenged the Board’s authority to award legal relief under § 10(c). In the Board’s own words,

the employer “attacked the Thryv remedy.” NLRB Br. 50. For example, Starbucks criticized the

Board’s recent awards of foreseeable damages as involving “not an equitable concept but instead

a legal principle typically preserved for juries in court.” NLRB Supp. App. 32. Starbucks

argued that the Board “does not have authority to create or award additional types of

compensatory relief,” and, further, that “if the [NLRA] is going to be expanded to include

consequential damages, or any other form of pecuniary harm beyond that specified by the Act,

that is a decision for Congress to make.” Id. at 34. And, on top of that, Starbucks “reserve[d]

the right to challenge the Board’s decision in Thryv,” including that the Board “lacks authority”

to award consequential damages, “through subsequent court review.” Id. at 33. All of this fairly

“apprise[d] the Board of” Starbucks’s “intention to bring up the question” of permissible

remedies on appeal. UAW v. NLRB, 844 F.3d 590, 598 (6th Cir. 2016) (citation modified). That

alone suffices to defeat any invocation of our forfeiture doctrine. Id.; see also NLRB v. Metro

Man IV, LLC, 113 F.4th 692, 700 n.2 (6th Cir. 2024) (rejecting forfeiture argument because

respondent raised “the general issue . . . squarely before the Board”).

No. 23-1767 NLRB v. Starbucks Corp. Page 16

B. With this procedural prelude aside, turn to the merits. We review de novo the Board’s

legal conclusions, including its interpretation of § 10(c). See Rieth-Riley Constr. Co. v. NLRB,

114 F.4th 519, 528 (6th Cir. 2024) (citing Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,

2262 (2024)). Again, § 10(c) requires the Board to order employers “to cease and desist” from

identified unfair labor practices and “to take such affirmative action including reinstatement of

employees with or without back pay, as will effectuate” the policies of the NLRA. 29 U.S.C.

§ 160(c). The question before us is whether Congress used “affirmative action” as a phrase of art

referring only to equitable remedies, as Starbucks urges, or instead as a literal phrase

encompassing all types of relief, including those legal in nature, as the Board suggests. To our

minds, all signs point to the former.

1. In interpretating a statute, we begin, as always, with its text. Hardt v. Reliance

Standard Life Ins., 560 U.S. 242, 251 (2010). Here, two words in § 10(c) warrant emphasis:

“affirmative action.” Standing alone, the terms “affirmative” and “action,” as defined by lay and

law dictionaries contemporary to the NLRA’s 1935 enactment, have somewhat imprecise

meaning. See, e.g., Affirmative, 1 Oxford English Dictionary 157–58 (1st ed. 1933)

(“Strengthening, corroborative; confirmatory.”); Action, id. at 93 (“The process or condition of

acting or doing (in the widest sense), the exertion of energy or influence; working, agency,

operation.”); Affirmative, Black’s Law Dictionary 75 (3d ed. 1933) (“That which declares

positively; that which avers a fact to be true; that which establishes; the opposite of negative.”);

Action, id. at 41 (“Conduct; behavior; something done; the condition of acting; an act or series of

acts.”). But when paired together, these words take on a more concrete effect: They limit the

realm of possible remedies to those primarily equitable in nature. See, e.g., John F. Manning,

The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2393 (2003) (“[L]iteral or dictionary

definitions of words will often fail to account for settled nuances or background conventions that

qualify the literal meaning of language and, in particular, of legal language.”).

That observation prompts a few words on equitable relief. At a high level, equity refers

to the remedies, procedures, and practices developed in and evolved from English courts of

equity, particularly the Court of Chancery. See Cleveland v. Second Nat. Bank & Tr. Co., 149

F.2d 466, 469 (6th Cir. 1945). It usually functions in personam rather than in rem, such that

No. 23-1767 NLRB v. Starbucks Corp. Page 17

equity courts provide relief by directing an individual to perform an act concerning the property

at issue. Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 841 (1994) (Scalia, J.,

concurring). This manner of relief includes, for instance, ordering a party “to cease and desist”

from a particular course of conduct. S. Pac. Terminal Co. v. Interstate Com. Comm’n, 219 U.S.

498, 499 (1911). Even after the merger of law and equity in federal courts, see Fed. R. Civ. P. 2,

we have preserved much of the separation between these two systems, see, e.g., Chauffeurs,

Teamsters & Helpers, Loc. No. 391 v. Terry, 494 U.S. 558, 565 (1990) (right to a jury trial).

Remedies in particular remain as one of the “principal differences.” Missouri v. Jenkins, 515

U.S. 70, 127 (1995) (Thomas, J., concurring).

With these background principles in mind, return now to the early twentieth-century

understanding of the phrase “affirmative action.” See Loper Bright, 144 S. Ct. 2266 (“[E]very

statute’s meaning is fixed at the time of enactment.” (citation modified)). The phrase

“affirmative action” was routinely tied to equitable power. Decades before the NLRA’s

enactment, the Supreme Court recognized that a “court of equity” wields the “power” to “require

affirmative action.” In re Lennon, 166 U.S. 548, 556 (1897); see also Federal Republic of

Germany v. Philipp, 141 S. Ct. 703, 712 (2021) (consulting “legal and historical backdrop” to

interpret federal statute). This same understanding populated the era of the NLRA’s enactment,

with federal courts describing equity’s core effect as restraining or compelling “affirmative

action.” See, e.g., Mut. Oil Co. v. Empire Petroleum Co., 5 F.2d 500, 500 (6th Cir. 1925) (per

curiam) (explaining equitable relief may “require[e] affirmative action”); Vaughan v. John C.

Winston Co., 83 F.2d 370, 374 (10th Cir. 1936) (“The power of equity, in an injunctive action, to

issue an order requiring affirmative action is frequently and properly exercised.”). So too in the

state courts, where jurisdictions around the country similarly used the phrase “affirmative action”

to describe the effect and function of equitable remedies as well as a limited slate of

extraordinary legal relief, such as mandamus. Consider examples from the Northeast, Dep’t of

Pub. Utils. v. Trs. of Props. of N.Y., N.H. & H.R. Co., 24 N.E.2d 647, 651 (Mass. 1939)

(explaining that “an order compelling affirmative action” is usually associated with “equity”);

the South, Williams v. Shaver, 140 S.W. 740, 742 (Ark. 1911) (“[E]quity will grant relief by

injunctive or affirmative action . . . .”); and the Midwest, Portmann v. Bd. of Elections, 19

N.E.2d 531, 533 (Ohio Ct. App. 1938) (“An injunction will lie not only to prevent a

No. 23-1767 NLRB v. Starbucks Corp. Page 18

contemplated wrong where there is no adequate remedy at law, but to require affirmative

action . . . .”).

Prominent legal scholars both then and now share the same view. They likewise describe

“affirmative action” as authorizing relief that is equitable in nature. E.g., 1 John Norton

Pomeroy, A Treatise on Equity Jurisprudence § 381, at 632 (3d ed. 1905) (describing how “a

court of equity will never, by its affirmative action, . . . enforce a penalty or forfeiture”); Roscoe

Pound, The Progress of the Law, 1918–1919: Equity, 33 Harv. L. Rev. 420, 439 (1920)

(referring to “the power of equity to coerce affirmative action”); Samuel L. Bray, The System of

Equitable Remedies, 63 UCLA L. Rev. 530, 553 (2016) (explaining how courts typically

“compel action or inaction . . . by means of an equitable remedy”). In short, courts and

commentators alike have long employed the phrase “affirmative action” to refer to the effect or

function of equitable relief.

Consistent with this shared understanding, the Board’s authority under § 10(c) to order

employers to take “affirmative action” encompasses only equitable remedies. That phrase has a

well-established meaning associated with the function or effect of traditional equitable remedies.

And “where Congress borrows terms of art in which are accumulated the legal tradition and

meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were

attached to each borrowed word.” Morissette v. United States, 342 U.S. 246, 263 (1952). Our

conclusion, we note, aligns with the Supreme Court’s NLRA-related recognition that “Congress

did not establish a general scheme authorizing the Board to award full compensatory damages

for injuries caused by wrongful conduct.” Int’l Union, UAW v. Russell, 356 U.S. 634, 643

(1958). Rather, “[t]he power to order affirmative relief under § 10(c) is merely incidental to the

primary purpose of Congress to stop and to prevent unfair labor practices.” Id. at 642–43. It

also comports with the Third and Fifth Circuits’ assessment of the issue. NLRB v. Starbucks

Corp., 125 F.4th 78, 95 (3d Cir. 2024) (“The NLRA therefore limits the Board’s remedial

authority to equitable, not legal, relief.”); Hiran Mgmt., Inc. v. NLRB, --- F.4th ---, 2025 WL

3041862, at *6 (5th Cir. Oct. 31, 2025); see also Int’l Union of Operating Eng’rs, Stationary

Eng’rs, Loc. 39 v. NLRB, --- F.4th ---, 2025 WL 2963359, at *24 (9th Cir. Oct. 20, 2025)

No. 23-1767 NLRB v. Starbucks Corp. Page 19

(Bumatay, J., dissenting in part) (concluding the same); 3484, Inc. v. NLRB, 137 F.4th 1093,

1125 (10th Cir. 2025) (Eid, J., concurring in part and dissenting in part) (same).

2. While the foregoing textual analysis is sufficient on its own to resolve the question in

Starbucks’s favor, a host of other considerations lead to the same conclusion. One is the

structure of § 10, which further confirms the equitable nature of “affirmative action.” Begin with

the fact that Congress, in the NLRA, did not make the Board’s remedial orders self-executing.

Rather, federal appellate courts must enter a “decree enforcing, modifying and enforcing as so

modified, or setting aside in whole or in part the order of the Board.” 29 U.S.C. § 160(e). That

courts may tailor the Board’s orders comports with, in the words of Judge Friendly, the “long-

established, broad, and flexible” “power of a court of equity to modify a decree.” N.Y. State

Ass’n for Retarded Child., Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983) (Friendly, J.).

Likewise, the Board’s power to hold unlawful actors in contempt to coerce compliance with its

orders, see Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 152 (2002), reflects the

paradigmatic enforcement tool of a court sitting in equity, see Brandon v. Holt, 469 U.S. 464,

476 (1985) (Rehnquist, J., dissenting). Like other statutory phrases, the meaning of “affirmative

action” is “known by the company it keeps.” Dubin v. United States, 143 S. Ct. 1557, 1569

(2023) (citation modified).

Consider yet one more feature of the NLRA’s remedial provision. By way of

background, Congress, when bestowing federal courts with the power to award damages

remedies, ordinarily does so only with express limits. E.g., 42 U.S.C. § 1981a(b)(3)

(establishing cascading series of damages for certain Title VII claims); 28 U.S.C. § 2674 (barring

interest and punitive damages for lawsuits under the Federal Tort Claims Act); 17 U.S.C.

§ 504(a)–(c) (limiting recovery for copyright infringement to either statutory damages or actual

damages and profits). That the NLRA nowhere specifies monetary relief is thus a strong

indicator that Congress did not design the Act to empower the Board with such legal remedial

power. See 29 U.S.C. §§ 151–169. Again, the only remedies enumerated in § 10(c)—

reinstatement and backpay—land clearly in equity. Fleming v. Ayers & Assocs., 948 F.2d 993,

998 (6th Cir. 1991) (“[R]einstatement is an equitable remedy . . . .”); Curtis v. Loether, 415 U.S.

189, 197 (1974) (“In Title VII cases the courts of appeals have characterized back pay as an

No. 23-1767 NLRB v. Starbucks Corp. Page 20

integral part of an equitable remedy[] . . . .”). As Judge Eid recently observed, “the fact that the

NLRA only expressly grants the Board authority to award those two equitable remedies sheds

light on what other types of relief the Board may award.” 3484, 137 F.4th at 1125 (Eid, J.,

concurring in part and dissenting in part).

Indeed, if “affirmative action” captured the expansive remedies the Board defends here,

then another portion of § 10(c) would be plainly inconsistent and make little sense. In adding an

exception for employees “suspended or discharged for cause,” the statute says the Board may not

award such employees “reinstatement or backpay.” 29 U.S.C. § 160(c). As these are the

remedies expressly listed in § 10(c), one could fairly read this prohibition as completely limiting

the relief allowable to an employee reprimanded for cause. Yet under the Board’s reading, those

same ne’er-do-well employees could still receive relief, and rather significant relief at that, in the

form of other direct or foreseeable harms suffered, because the exception says only

“reinstatement and backpay.” We ordinarily interpret statutes to avoid such “anomalous results.”

Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193, 202 (2000).

3. Consider also related statutes. Roughly three decades after the NLRA’s adoption,

Congress enacted Title VII. See Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 701–718, 78

Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17). In so doing,

legislators “expressly modeled” the law’s remedial provision, § 706(g), after § 10(c). Albemarle

Paper Co. v. Moody, 422 U.S. 405, 419 (1975). Section 10(c) thus “gives us guidance as to the

proper meaning of the same language in [§ 706(g)] of Title VII.” Pollard v. E.I. du Pont de

Nemours & Co., 532 U.S. 843, 849 (2001). The opposite is true as well, given future

developments with Title VII. To that end, in 1972, Congress amended § 706(g) to authorize

courts to “order such affirmative action as may be appropriate, which may

include . . . reinstatement . . . with or without back pay . . . or any other equitable relief as the

court deems appropriate.” Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261,

§ 4(a), 86 Stat. 103, 107 (codified as amended at 42 U.S.C. § 2000e-5(g)(1)) (emphasis added).

That phrasing further confirms our understanding of “affirmative action.” If Congress intended

“affirmative action” to also encompass legal relief, it would make little sense to follow that term

No. 23-1767 NLRB v. Starbucks Corp. Page 21

with the language “or any other equitable relief.” It would be akin to a grocery list that prompts

purchases of “apples, bananas, or any other vegetable.”

Section 706(g) sends even more signals as to § 10(c)’s limited scope. One, as the

Supreme Court has held, § 706(g), as amended in 1972, provides no authority for compensatory

damages. United States v. Burke, 504 U.S. 229, 238 (1992). With § 706(g) “expressly modeled”

after § 10(c), Albemarle Paper Co., 422 U.S. at 419, the same should be true for the NLRA.

Two, Congress later amended Title VII to expressly permit such compensatory remedies—

following a jury trial—in certain contexts. See Civil Rights Act of 1991, Pub. L. No. 102-166,

§ 102, 105 Stat. 1071, 1073 (codified as amended at 42 U.S.C. § 1981a(c)). Lawmakers could

do the same for § 10(c). But, at least so far, they have not.

4. The scales tip even further when we broaden our inquiry to parallel state laws.

Examples abound of state antidiscrimination statutes that, like § 706(g), expressly denote

“affirmative action” as equitable in nature. E.g., Ariz. Rev. Stat. Ann. § 41-1481(G) (permitting

courts to remedy unlawful discrimination by ordering “affirmative action,” including

“reinstatement” with or without backpay and “any other equitable relief”); Haw. Rev. Stat.

§ 378-5(b) (same); Iowa Code § 70A.29(3)(a) (same); S.C. Code Ann. § 1-13-90(d)(9) (same);

Conn. Gen. Stat. § 31-40aa(j)(2) (same, adding that “compensatory and punitive damages” are

available only if employer acted “with malice or with reckless indifference”).

To the same end, where state law’s reach has been left for court interpretation, state

courts have long read “affirmative action” in their state antidiscrimination statutes to refer only

to equitable relief. That is the case even when, as in § 10(c), the statutory text does not expressly

state as such. Consider Iowa. E.g., Iron Workers Loc. No. 67 v. Hart, 191 N.W.2d 758, 767

(Iowa 1971) (“The right granted [to the] Commission to allow back pay . . . is only incidental to

affirmative action equitably decreed and cannot by analogy generate a power to enter

judgment for other common law damages.”). Kansas. E.g., Woods v. Midwest Conveyor Co.,

648 P.2d 234, 245 (Kan. 1982) (concluding authority to order “affirmative action” does not

“permit[] orders . . . covering compensatory and punitive damages”). Maryland. E.g., Gutwein

v. Easton Publ’g Co., 325 A.2d 740, 747 (Md. 1974) (explaining authority to order “affirmative

action” does not “specifically authorize an award of compensatory damages”). Massachusetts.

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E.g., Lab. Rels. Comm’n v. Bd. of Selectmen of Dracut, 373 N.E.2d 1165, 1169 (Mass. 1978)

(“[T]he statutory phrase ‘further affirmative action’ contemplates resort to the equitable

powers . . . .”). New Hampshire. E.g., E.D. Swett, Inc. v. N.H. Comm’n for Hum. Rts., 470 A.2d

921, 927 (N.H. 1983) (declining to read “affirmative action” in state law “so as to encompass

other forms of relief such as compensatory damages”). Ohio. E.g., Ohio C.R. Comm’n v. Lysyj,

313 N.E.2d 3, 7 (Ohio 1974) (per curiam) (stating authority over “affirmative action” does not

include “power to award either compensatory or punitive damages”). Pennsylvania. E.g., Pa.

Hum. Rels. Comm’n v. Zamantakis, 387 A.2d 70, 72–73 (Pa. 1978) (refusing to extend “authority

by judicial fiat” over damages in state law permitting “affirmative action” because

“[t]raditionally, damages, . . . have been a matter for courts of law” (citation modified). And the

District of Columbia, to boot. E.g., Mendota Apartments v. D.C. Comm’n of Hum. Rts., 315

A.2d 832, 836 (D.C. 1974) (opining “the authority to order a respondent to ‘take such affirmative

action . . .’ did not include the authority to award civil damages”).

Federal courts, of course, have an independent duty to interpret federal statutes

irrespective of how state courts might interpret parallel state statutes. See, e.g., Atl. Coast Line

R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286 (1970). But we would be remiss to

ignore the reality that state legislators and jurists—public officials trained in the law and

operation of remedies—have long understood “affirmative action” in a specialized sense,

referring only to equitable remedies. See Bostock v. Clayton County, 140 S. Ct. 1731, 1831–32

(2020) (Kavanaugh, J., dissenting) (consulting parallel state laws to support reading of federal

statute). We see no reason to believe (and the Board has not given us one) that the 1935

Congress—composed of public officials similarly trained in the law and operation of remedies—

understood the phrase differently.

5. This understanding also avoids an interpretation of § 10(c) that runs headlong into a

basic protection in the Bill of Rights. Our longstanding approach is to interpret statutes in a way

that avoids raising constitutional tension. See, e.g., Stern v. Marshall, 564 U.S. 462, 477 (2011).

In particular, “[w]hen the validity of an act of the Congress is drawn in question, and even if a

serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first

ascertain whether a construction of the statute is fairly possible by which the question may be

No. 23-1767 NLRB v. Starbucks Corp. Page 23

avoided.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).

That command bears emphasis here, as reading § 10(c) to authorize the Board to award

compensatory damages as part of an administrative proceeding, as the Board urges, raises a

constitutional question over a fundamental right ratified in the Seventh Amendment: that “[i]n

Suits at common law, . . . the right of trial by jury shall be preserved . . . .” U.S. CONST. amend.

VII; see also Perttu v. Richards, 145 S. Ct. 1793, 1800 (2025) (“Before inquiring into the

applicability of the Seventh Amendment, we must first ascertain whether a construction of the

statute is fairly possible by which the constitutional question may be avoided.” (citation

modified)).

Instructive on the scope of the jury trial right is the recent decision in SEC v. Jarkesy, 144

S. Ct. 2117 (2024). There, the Supreme Court reaffirmed that the Seventh Amendment

encompasses all claims that are “legal in nature,” regardless of whether they derive from statute

or common law. Id. at 2128 (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53 (1989)).

At issue in Jarkesy was the SEC’s practice of levying civil penalties in securities fraud

adjudications through in-house proceedings, rather than seeking such awards in federal court. Id.

at 2124–26. The Supreme Court deemed this practice inconsistent with the Seventh

Amendment. Id. at 2139. Aside from a narrow category of “public rights” cases that have

historically been handled by the political branches, Jarkesy explained, the Seventh Amendment

guarantees the right to a jury trial whenever an agency seeks civil penalties or pursues common

law actions. Id. at 2132, 2139. This guarantee was especially true, the Supreme Court

emphasized, as to awards of “money damages,” which represent “the prototypical common law

remedy.” Id. at 2129; see U.S. CONST. amend. VII (“In suits at common law, . . . the right of trial

by jury shall be preserved[] . . . .’” (emphasis added)).

To be sure, nothing in Jarkesy displaced an administrative agency’s ability to impose

equitable remedies, consistent with their statutory authority. Jarkesy, 144 S. Ct. at 2128 (“The

[Seventh] Amendment therefore ‘embrace[s] all suits which are not of equity or admiralty

jurisdiction[] . . . .” (second alteration in original) (quoting Parsons v. Bedford, Breedlove &

Robeson, 28 U.S. (3 Pet.) 433, 447 (1830))). And “monetary relief,” of course, “can be legal or

equitable” in nature. Id. at 2129. But “monetary remed[ies]” qualify as “legal,” and thus deserve

No. 23-1767 NLRB v. Starbucks Corp. Page 24

the right to resolution before a jury, if they are “designed to punish or deter the wrongdoer”

rather than “solely to ‘restore the status quo.’” Id. (quoting Tull v. United States, 481 U.S. 412,

422 (1987)).

Back to today’s case, the remedy the Board imposed reflects legal relief amounting to

money damages, to which a jury trial right attaches. “[A]ny other direct or foreseeable pecuniary

harm incurred,” how the Board formulated its award here, strikes us as merely a verbose way of

referring to consequential damages—a “classic form of legal relief.” Mertens v. Hewitt Assocs.,

508 U.S. 248, 255 (1993) (citations omitted). And with it, it follows, the defendant’s right to

have a jury decide the Board’s claims. In the Thryv case, the Fifth Circuit saw this as we do and

deemed it “a novel, consequential-damages-like labor law remedy,” and “draconian” to boot.

Thryv, Inc. v. NLRB, 102 F.4th 727, 733, 737 (5th Cir. 2024); see also id. at 737–48 (concluding

substantial evidence did not support the Board’s factfinding, eliminating need to analyze the

lawfulness of the Board’s new remedy). That this remedy derives from statute (the NLRA)

makes no difference. The Supreme Court has repeatedly reaffirmed the Seventh Amendment’s

applicability to statutory relief when legal in nature. See, e.g., Jarkesy, 144 S. Ct. at 2128;

Granfinanciera, 492 U.S. at 53; Tull, 481 U.S. at 417.

We do not doubt the Board’s authority to tailor monetary payments so that they serve

solely “to restore the status quo,” rendering them equitable. Tull, 481 U.S. at 422. But awards

under Thryv reach much farther than just that narrow category. In effect, they broaden the realm

of § 10(c) relief to harms bearing, at best, a tangential relation to the respective unfair labor

practice. See Thryv, 372 NLRB No. 22, slip op. at 9. The policymaking rationale for such

remedies reflects the very crux of their unlawfulness: The Board is measuring monetary relief

from the standpoint of the employee’s loss, indicating its compensatory nature, rather than the

employer’s gain, which invokes equitable considerations. Id. (“‘Make-whole relief’ is more

fully realized when it consistently compensates affected employees for all direct or foreseeable

pecuniary harms that result . . . .”). In so doing, the Board has impermissibly shifted from equity

to law. Whereas “[d]amages always begin[] with the aim of compensation for the plaintiff,”

“[r]estitution, in contrast, begins with the aim of preventing unjust enrichment of the defendant.”

No. 23-1767 NLRB v. Starbucks Corp. Page 25

1 Dan B. Dobbs, Law of Remedies § 3.1, at 280 (2d ed. 1993); see also Int’l Union of Operating

Eng’rs, 2025 WL 2963359, at *26 (Bumatay, J., dissenting in part).

Put another way, while Thryv awards may help restore the status quo, they are also

intended to punish wrongdoers and deter future misconduct. Dobbs, supra, at 282 (“Even if the

defendant is not subject to punitive damages, an ordinary ‘compensatory’ damages judgment can

provide an appropriate incentive to meet the appropriate standard of behavior.”). Just ask the

Board. It characterizes the “design[]” of its awards as “advanc[ing] broader governmental

policies,” such as the “prohibition[] of antiunion discrimination[] and interference with

employees’ concerted activities for mutual aid or protection.” NLRB Br. 54. Yet achieving

these aims would require the Board to punish employers acting unlawfully, landing its

proceedings squarely within Seventh Amendment territory.

To the same end, when justifying its widespread reliance on Thryv in all cases, the Board

explained that its orders “run the risk of becoming punitive rather than restorative” if applied

“only to address the most deplorable or flagrant violations,” thereby justifying wholesale

deployment. Thryv, 372 NLRB No. 22, slip op. at 11. More tailored enforcement of the Act, in

other words, would too obviously reveal the punitive aspect of a Thryv remedy. But doing so on

a more fulsome basis hardly changes their remedy’s nature. As Judge Bumatay aptly explained,

“a punitive measure is still punitive even if it applies across the board.” Int’l Union of Operating

Eng’rs, 2025 WL 2963359, at *6 (Bumatay, J., dissenting in part). In the context of § 10(c),

then, awarding “all direct or foreseeable pecuniary harm” at least partly serves to punish and

deter. The potential conflict between that purpose and the Seventh Amendment’s strictures,

especially as colored by recent Supreme Court precedent, further confirms why § 10(c) must be

read to authorize equitable relief only.

D. The Board presses its reading of § 10(c) both on textual and precedential grounds.

1. Start with the text. According to the Board, § 10(c) is not limited merely to backpay

and reinstatement; rather, Congress purportedly sought to vest the Board with vast remedial

authority, including the capacious type of relief at issue here, so long as its award “effectuate[s]

the policies of the [NLRA].” NLRB Br. 40 (citation modified). True, as the Board emphasizes,

No. 23-1767 NLRB v. Starbucks Corp. Page 26

§ 10(c)’s remedial powers are not confined solely to reinstatement with backpay. See Fed. Land

Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he term ‘including’ is not one of

all-embracing definition, but connotes simply an illustrative application of the general principle.”

(citation omitted)). No one disputes that point. Rather, Starbucks asks us to read § 10(c) as

cabining the Board’s remedial authority to equitable relief, which includes (but is not limited to)

reinstatement with or without backpay. See, e.g., Starbucks Br. 38 (explaining “[t]h[e] language

[of § 10(c)] authorizes only equitable relief” without any other restriction). In that sense, the

Board still enjoys discretion to “effectuate the policies of” the NLRA, 29 U.S.C. § 160(c), so

long as its ordered remedy sits within the broader realm of equitable relief. That the Board may

seek to “effectuate the policies of th[e] [NLRA]” does not change our conclusion. In effect, this

clause merely qualifies the meaning of the antecedent phrase “affirmative action,” which, as

already explained, encompasses only equitable remedies. See, e.g., Facebook, Inc. v. Duguid,

141 S. Ct. 1163, 1170 (2021); Fisher v. United States, 144 S. Ct. 2176, 2183–84 (2024).

The Board denies any application of Title VII. In the Board’s view, § 706(g), if it has

any bearing here, in fact cuts against Starbucks’s position given the statute’s express reference to

“any other equitable relief,” 42 U.S.C. § 2000e-5(g)(1), a phrase missing from § 10(c). Two

acknowledgements bear mentioning. One, we agree with the Board that courts should exercise

caution when consulting analogous laws to glean statutory meaning. But doing so often proves

useful. See United States v. Davis, 139 S. Ct. 2319, 2329 (2019) (“[W]e normally presume that

the same language in related statutes carries a consistent meaning.”). Two, we likewise

recognize that § 10(c) does not explicitly mention equity, unlike Title VII. Compare 29 U.S.C.

§ 160(c), with 42 U.S.C. § 2000e-5(g)(1). That observation, however, misses the point. The

latter’s reference to “or any other equitable relief” suggests Congress, at least elsewhere in time,

thought that “affirmative action” encompassed only equity. And because Congress “generally

uses a particular word with a consistent meaning in a given context[,] . . . a later act can be

regarded as a legislative interpretation of an earlier act in the sense that it aids in ascertaining the

meaning of the words as used in their contemporary setting.” Erlenbaugh v. United States, 409

U.S. 239, 243–44 (1972) (citation modified). Could the meaning of “affirmative action” have

changed between 1935, the year of the NLRA’s enactment, and 1972, the year of Title VII’s at-

issue amendment? In theory, yes. But in practice, the Board provides no evidence of such a

No. 23-1767 NLRB v. Starbucks Corp. Page 27

dramatic semantic shift, nor have we discovered anything suggesting as much. See Henry

Campbell Black, Handbook on the Construction and Interpretation of Laws § 104, at 338 (2d ed.

1911) (noting that related statutes aid statutory interpretation “no matter whether they were

enacted by the same legislature or at widely different times”).

Continuing, the Board deems “unprecedented” any reading of an equity limit in the

NLRA, given both § 10(c)’s failure to mention equity as well as the purportedly “archaic,”

“unworkable,” and “obsolete” distinction between law and equity more broadly. NLRB Br. 50

(citations omitted). The Third and Fifth Circuits’ holding on this issue, of course, makes our

conclusion far from unprecedented. See Starbucks Corp., 125 F.4th at 95; Hiran Mgmt., 2025

WL 3041862, at *6. So too does the historical research above, which reflects that an equity limit

is common in remedial statutes bearing near-identical structures to § 10(c). Nor can we, as

jurists, codify any frustration with the line between law and equity, a job assigned solely to

legislators. While that line sometimes wants for clarity, see, e.g., Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271, 284 (1988), we may not transgress it merely for the sake of

administrability, see Great-W. Life & Annuity Ins. v. Knudson, 534 U.S. 204, 216–17 (2002) (“It

is easy to disparage the law-equity dichotomy as ‘an ancient classification’ and an ‘obsolete

distinctio[n].’ Like it or not, however, that classification and distinction has been specified by

the statute[] . . . .” (citations omitted) (first alteration in original)). Rather, our task, in these

circumstances, is simply to assess the nature of a given remedy. And, on that score, even if we

accepted the Board’s reading of § 10(c) as a matter of statutory interpretation, we would still

need to review the statute’s compliance with the Seventh Amendment and, in so doing, glean

whether the chosen remedy is legal or equitable. See Jarkesy, 144 S. Ct. at 2128.

Perhaps most telling, the Board fails to provide any alternative definition of the phrase

“affirmative action.” Aside from urging that this phrase accommodates its award here, the Board

leaves us to guess where, if at all, its remedial authority ends. There is no need to guess. The

plain, obvious, and most reasonable understanding, along with every applicable tool of statutory

construction all point in one direction: § 10(c) permits only equitable relief. Could Congress

have left even less doubt over the matter by adding the phrase “or other equitable relief” to

§ 10(c), as it later did in § 706(g)? Sure. But that mild imperfection does not undermine

No. 23-1767 NLRB v. Starbucks Corp. Page 28

Congress’s other clear signals, chief among them, again, its use of the term of art “affirmative

action.” In practice, “Congress cannot” be expected to “anticipate (much less account for) every

future statutory skirmish—and even if it could, courts have no authority to hold Congress to a

‘perfect as we see it’ standard of drafting.” Esteras v. United States, 145 S. Ct. 2031, 2042

(2025) (“[W]e have routinely construed statutes to have a particular meaning even when

Congress could have expressed itself more clearly.” (citation modified)).

Even more revealing is the dissenting opinion, which barely engages with § 10(c)’s text.

Save for a few prefatory references to the statutory term “affirmative action,” the dissenting

opinion ignores the phrase altogether, embracing in its place New Deal-era jurisprudence. Cases

offering generic propositions about the Board’s power, however, do not move the needle. See

Dissenting Op. 39–40 (citing Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)

(recognizing the Board’s ability to “effectuate the policies of the Act”)).

2. Turn next to case law. The Board cites an array of decisions, from the Supreme

Court’s to its own, allegedly demonstrating the Board’s “broad remedial discretion to order

make-whole relief.” NLRB Br. 40. These cases, the Board says, exemplify its authority to

freely order consequential damages to effectuate the expansive power that Congress intentionally

bestowed upon it through § 10(c). We read this precedent differently.

At the outset, the Board obliquely suggests that we may examine its remedies only for an

abuse of discretion, gleaning this practice from opinions describing the Board’s power to remedy

unfair labor practices as “a broad discretionary one, subject to limited judicial review.”

Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964) (citation omitted). The

Board stretches that guidance too far. When acting within the boundaries of its statutory

authority in § 10(c), we acknowledge, the Board enjoys discretion to craft remedies without

substantial judicial interference. For example, we often defer to the Board’s decision whether to

grant reinstatement, a form of relief expressly permitted under § 10(c). See, e.g., Compuware

Corp. v. NLRB, 134 F.3d 1285, 1291 (6th Cir. 1998) (“[T]he Board’s decision that [the

employee] should be reinstated is not an abuse of discretion as it is the normal remedy in an

unlawful discharge case.”). Yet here, on the other hand, the Board asks us to defer to its

purported discretion to set the boundaries of § 10(c), a proposed novel extension of our past

No. 23-1767 NLRB v. Starbucks Corp. Page 29

practice. That we cannot do. As we recently explained, “[w]e do not defer to the NLRB’s

interpretation of the NLRA, but exercise independent judgment in deciding whether an agency

acted within its statutory authority.” Rieth-Riley Constr., 114 F.4th at 528 (citing Loper Bright,

144 S. Ct. at 2262). Of the sister circuits that have addressed this issue, virtually all do likewise.

See, e.g., Garten Trucking LC v. NLRB, 139 F.4th 269, 276 (4th Cir. 2025); United Nat. Foods,

Inc. v. NLRB, 138 F.4th 937, 946 (5th Cir. 2025); 3484, 137 F.4th at 1104.

Nor do we share the Board’s view that Congress has bestowed on it the power to order

any form of “make-whole relief.” That desire, if it ever existed, never manifested itself in the

statute’s text. “[A]ffirmative action” accommodates some forms of relief—such as

reinstatement—while foreclosing others—such as consequential damages. Again, we emphasize

the long-held understanding that Ҥ 10(c) is merely incidental to the primary purpose of

Congress to stop and to prevent unfair labor practices. Congress did not establish a general

scheme authorizing the Board to award full compensatory damages for injuries caused by

wrongful conduct.” Russell, 356 U.S. at 643. Holding otherwise would both contravene

Supreme Court precedent and elevate generalized, out-of-context snippets from precedent over

the law Congress enacted. See Off. of U.S. Tr. v. John Q. Hammons Fall 2006, LLC, 144 S. Ct.

1588, 1607 (2024) (Gorsuch, J., dissenting) (“[C]ourts may not elevate judicial guesswork about

‘Congress’s hypothetical intent’ over ‘statutory text,’ which is the ‘definitive expression of

Congress’s will.’” (citation omitted)).

What is more, the Board’s reading understands Congress to have authorized the Board to

undertake difficult consequential damages assessments during after-the-fact compliance

proceedings. See Thryv, Inc., 372 NLRB No. 22, slip op. at 19. To be sure, Congress authorized

such proceedings in equitable remedial circumstances. Id. Yet unlike a proceeding dedicated to

the more straightforward calculation of backpay, doing the same for “make-whole relief,” as the

Board envisions, seemingly would result in complicated, “protracted litigation” over

“employees’ personal financial circumstances” as well as the extent to which “the employee’s

own financial decisions contributed to the losses.” Id. at 25 (members Kaplan & Ring,

concurring in part and dissenting in part). And with the relevant evidence likely in the

employee’s possession alone, the Board’s approach opens the door to speculative assessments

No. 23-1767 NLRB v. Starbucks Corp. Page 30

and harsh results. See id. at 27 (highlighting a $13.3 million initial assessment of consequential

damages later reassessed at $435,000). The Board offers no reason to believe Congress licensed

such an elaborate and unpredictable remedial scheme.

Undeterred, both the Board and the dissenting opinion cite a handful of the Board’s own

cases ordering relatively expansive forms of relief. But a smattering of cases decided over a

ninety-year period says very little about the Board’s common practice. See, e.g., United States v.

Iselin, 270 U.S. 245, 251 (1926) (declining to codify prior administrative rulings into statute

because the agency’s “construction was neither uniform, general, nor long-continued”). Equally

true, while it comes as no surprise that the Board would take a maximal view of its own power,

in the end, its interpretation of the NLRA is entirely beside the point. See Hi-Craft Clothing Co.

v. NLRB, 660 F.2d 910, 916 (3d Cir. 1981) (“[G]overnment agencies have a tendency to swell,

not shrink, and are likely to have an expansive view of their mission.”). Remember, “[c]ourts

must exercise their independent judgment in deciding whether an agency has acted within its

statutory authority.” Loper Bright, 144 S. Ct. at 2273.

Nor, in any event, do these orders support Thryv’s all-encompassing award for “direct or

foreseeable pecuniary harms.” Fairly understood, they encompass “discrete losses related to an

employee’s lost wages or benefits that were unlawfully withheld,” rendering them an arguable

derivative of backpay. 3484, 137 F.4th at 1124 (Eid, J., concurring in part and dissenting in

part); see, e.g., Lou’s Transp., Inc., 366 NLRB No. 140, slip op. at 1, 2018 WL 3570875 (July

24, 2018) (compensation for 401(k) growth otherwise unrealized after employer unlawfully

ended retirement fund contributions); Thryv, 372 NLRB No. 22, slip op. at 7–8 (collecting

cases). Far from justifying the Board’s authority to issue sweeping damages remedies, in other

words, these cases at most reflect instances of the Board’s ordering monetary relief for losses

directly caused by the employer’s unfair labor practice. See Thryv, 372 NLRB No. 22, slip op. at

18 (members Kaplan & Ring, concurring in part and dissenting in part).

To the extent those past awards themselves comport with the equitable limit in § 10(c),

they still fail to justify the capacious and novel relief sought here. Recall, by awarding “all direct

or foreseeable pecuniary harms,” the Board orders employers to reimburse a vast realm of

tangentially related injuries. Id. at 9 (majority opinion). Childcare costs, credit card interest, and

No. 23-1767 NLRB v. Starbucks Corp. Page 31

penalties on early retirement-savings withdrawals merely scratch the surface of compensable

harms. Voorhees Care, 371 NLRB No. 22, slip op. at 4 n.14. And the Board now desires to

categorically order this capacious relief for every identified unfair labor practice—individual

employee and employer circumstances notwithstanding. Airgas USA, 373 NLRB No. 102, slip

op. at 1 n.1. Such an all-encompassing and generalized remedy constitutes a Carl Lewis–sized

leap from the Board’s practices of old. See Int’l Union of Operating Eng’rs, 2025 WL 2963359,

at *19 (Bumatay, J., dissenting in part) (“Until two years ago, the Board had never claimed the

authority to award consequential damages[] . . . .”); West Virginia v. EPA, 142 S. Ct. 2587, 2610

(2022) (expressing skepticism over an agency’s “claim[ing] to discover in a long-extant statute

an unheralded power” (citation modified)).

Taking a different tack, the Board posits that Starbucks has entirely mischaracterized its

remedy. Both here and in Thryv, the Board says, it has carefully avoided describing its “make-

whole order” as an award of consequential or compensatory damages. Rather, because those

damages refer to “legal term[s] of art more suited for the common law of torts and contracts,” the

Board maintains that the phrase “all direct or foreseeable pecuniary harms” permissibly refers to

“the make-whole principles of [§] 10(c).” Thryv, 372 NLRB No. 22, slip op. at 9. Yet that

purported distinction makes little difference. The Board seeks to grant money damages for direct

and foreseeable pecuniary harm, the exact type of recovery granted through compensatory and

consequential damages in tort and contract law. E.g., Palsgraf v. Long Is. R.R. Co., 162 N.E. 99,

104–05 (N.Y. 1928); Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145, 151 (1854); see also

3484, 137 F.4th at 1125 (Eid, J., concurring in part and dissenting in part) (referring to Thryv’s

example remedies as “something out of a torts treatise”). Indeed, at one juncture in Thryv, the

Board expressly acknowledged that it was considering whether to “modify” awards so that they

included “consequential damages,” revealing both the novel and legal nature of these remedies.

Thryv, 372 NLRB No. 22, slip op. at 6 n.8 (“[T]he Board invited all interested parties to file

briefs regarding whether the Board should ‘modify its traditional make-whole remedy in all

pending and future cases to include relief for consequential damages, where these damages are a

direct and foreseeable result of a respondent’s unfair labor practice.’”). In any event, the Board

seeks to grant monetary remedies at least partly designed to punish or deter employers acting

unlawfully. That is the very definition of legal relief. See Jarkesy, 144 S. Ct. at 2129. We

No. 23-1767 NLRB v. Starbucks Corp. Page 32

cannot stake this case on semantic nuances as trivial as the remedy’s purported label, especially a

label chosen by the Board itself.

3. Lastly, both the Board and the dissenting opinion resist the applicability of

constitutional avoidance principles. Beginning with the dissenting opinion, it proceeds from a

flawed understanding of Jarkesy. The dissenting opinion reads the decision to mean that any

remedy that “seeks solely to restore the status quo,” such as the Board’s make-whole relief, is

“equitable” in nature. Dissenting Op. 43 (citing Jarkesy, 144 S. Ct. at 2129). That sweeping

interpretation is difficult to accept. Recall that the issue in Jarkesy was whether the Securities

and Exchange Commission could impose civil sanctions through agency proceedings when

confronted with a regulated party’s request for a jury trial, in line with the Seventh Amendment.

144 S. Ct. at 2127–29. In deeming a civil sanction remedy “legal,” meaning Jarkesy could

demand that the matter be resolved by a jury rather than the agency alone, the Supreme Court

emphasized the fact that a sanction does not serve to compensate the injured party but instead

functions to “punish or deter the wrongdoer,” making it a remedy at law. Id. at 2129. That

reality, however, is merely one aspect of the law-equity distinction. It bears repeating that even

relief that goes to the victim—including compensatory damages—may be legal in nature if

measured by the victim’s loss rather than the wrongdoer’s gain. See City of Monterey v. Del

Monte Dunes at Monterey, 526 U.S. 687, 710–11 (1999); Int’l Union of Operating Eng’rs, 2025

WL 2963359, at *25–26 (Bumatay, J., dissenting in part). Punitive remedies, in other words, are

merely a subset of the broader range of legal remedies.

Conflating legal and punitive remedies as one and the same, as the dissenting opinion

appears to do, has little grounding in law. See Dissenting Op. 44 (quoting Jarkesy, 144 S. Ct. at

2130) (“[I]f a remedy is ‘designed to punish and deter, not to compensate’ then it is ‘legal in

nature.’”). Take Title VII, for instance. We have routinely allowed Title VII plaintiffs to seek

“compensatory or punitive damages” before a jury. See Craddock v. FedEx Corp. Servs., Inc.,

102 F.4th 832, 841 (6th Cir. 2024) (citing Del Monte Dunes, 526 U.S. at 710–11) (noting that

“compensatory relief constitutes legal relief under the Seventh Amendment”). Yet from the

dissenting opinion’s point of view, a Title VII plaintiff who seeks only compensatory damages

has no right to a jury trial. If that were the case, the consequences would be dramatic, not only

No. 23-1767 NLRB v. Starbucks Corp. Page 33

for Title VII plaintiffs, but for many other plaintiffs too. In practice, the dissenting opinion’s

approach would effectively repeal the Seventh Amendment for a breathtaking range of

traditionally legal claims. Not surprisingly, no other court, to our knowledge, has embraced this

novel reading of Jarkesy, a decision widely understood as reinforcing the jury trial right. See

Jarkesy, 144 S. Ct. at 2140 (Gorsuch, J., concurring) (understanding “the Court’s course” in

Jarkesy to help “vindicate the Constitution’s promise of a ‘fair trial in a fair tribunal’”).

The Board, meanwhile, points to a handful of Supreme Court cases invoking the “public

rights” exception. The public rights doctrine has sharp limits. It extends “only to matters arising

between individuals and the Government in connection with the performance of constitutional

functions of the executive or legislative departments that historically could have been determined

exclusively by those branches.” Stern, 564 U.S. at 485 (citation modified); see also Jarkesy, 144

S. Ct. at 2146 (Gorsuch, J., concurring) (“[P]ublic rights are a narrow class defined and limited

by history[,] . . . traditionally includ[ing] the collection of revenue, customs enforcement,

immigration, and the grant of public benefits.”). In those unique settings, Congress may assign

certain matters to agencies for adjudication even though such proceedings would not afford the

right to a jury trial. Jarkesy, 144 S. Ct. at 2132. According to the Board, because its proceedings

are “purely statutory creations designed to advance broader governmental policies,” we should

deem them “quintessential public rights” and, in so doing, interpret § 10(c) free from any

concern that the Board’s reading of the statute raises Seventh Amendment implications. NLRB

Br. 54.

We decline the invitation. At the outset, “[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.”

Jarkesy, 144 S. Ct. at 2134 (citation omitted). And as to the Seventh Amendment in particular, it

applies equally to congressionally established rights. See, e.g., id. at 2134–35; Granfinanciera,

492 U.S. at 53; Tull, 481 U.S. at 417. So instead of asking only whether an asserted right derives

from common law or Congress, courts must also examine the given proceeding’s “nature” to

determine whether an agency is impermissibly adjudicating private rights. Jarkesy, 144 S. Ct. at

2134 (citation omitted). That well describes the case here, where the Board seems to award

consequential damages for every instance of an unfair labor practice. Airgas USA, 373 NLRB

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No. 102, slip op. at 1 n.1. That manner of relief, of course, “possess[es] a long line of common-

law forebears,” for which Congress cannot “conjure away the Seventh Amendment” by simply

“assigning” adjudicative proceedings to an agency. Granfinanciera, 492 U.S. at 52. It also

“goes beyond defending the public interest in federal labor policy and instead targets ‘the wrong

done the individual employee,’” transcending the Board’s permissible considerations when

fashioning unfair labor practice remedies. Int’l Union of Operating Eng’rs, 2025 WL 2963359,

at *27 (Bumatay, J., dissenting in part) (quoting Vaca v. Sipes, 386 U.S. 171, 182 n.8 (1967)). It

is thus no surprise that the Board fails to cite an “unbroken tradition” or “historic categor[y]” of

nonjudicial adjudication over Thryv-like awards. Jarkesy, 144 S. Ct. at 2122–23; see also id. at

2147 (Gorsuch, J., concurring) (“[W]e look for some ‘deeply rooted’ tradition of nonjudicial

adjudication before permitting a case to be tried in a different forum under different procedures.”

(citation omitted)). Nor could it. As already explained, Thryv stands as a novel and expansive

application of the ninety-year-old NLRA.

Neither NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), nor Atlas Roofing Co.

v. Occupational Safety & Health Review Commission, 430 U.S. 442 (1977), changes our

thinking. The former expressly limited itself to the then-“instant case” of reinstatement with

backpay, Jones & Laughlin, 301 U.S. at 22, 48, whereas the latter controls only for claims

“unknown to the common law,” Jarkesy, 144 S. Ct. at 2138 (quoting Atlas Roofing, 430 U.S. at

461); see also id. at 2149–50 (Gorsuch, J., concurring) (criticizing Atlas Roofing at length); id. at

2138 n.4 (majority opinion) (“As the concurrence shows, Atlas Roofing represents a departure

from our legal traditions.”). As explained, the public-rights determination looks to more than

just the origin of an asserted right. Instead, we must examine the type of relief at issue when

evaluating the Seventh Amendment’s applicability. See id. at 2129 (observing that the remedy is

“more important” (citation omitted)). And just as some forms of relief (those in equity) may

avoid a jury trial, others (those at law) cannot, even when they concern the same agency and the

same statute. Accordingly, although Jarkesy preserved the narrow holdings of both Atlas

Roofing and Jones & Laughlin, those cases bear no relevance when, as here, an agency seeks to

award quintessentially legal relief with common law roots. As explained, the Board’s efforts

both lack statutory authority and raise serious constitutional questions.

No. 23-1767 NLRB v. Starbucks Corp. Page 35

* * * * *

We grant the Board’s petition for enforcement as to its factfinding but vacate its award

and remand for proceedings consistent with this opinion.

No. 23-1767 NLRB v. Starbucks Corp. Page 36

____________________________

CONCURRENCE / DISSENT

____________________________

JANE B. STRANCH, Circuit Judge, concurring in the judgment in part, and dissenting in

part. I concur in the judgment with respect to Part I and II, as they lead to the correct holding

that substantial evidence on the record supported the Board’s factual conclusion that anti-union

animus motivated Starbucks’s discharge of Whitbeck and thus constituted an unfair labor

practice in violation of the NLRA. I dissent with respect to Part III. I would instead affirm the

Board’s explanation of the damages award and hold that it acted within its discretion by ordering

Starbucks to make Whitbeck whole for all direct or foreseeable pecuniary harms suffered

because of its unfair labor practice.

I. ANALYSIS

A. Part II—Substantial Evidence of Anti-Union Animus

Although I agree with the majority opinion’s finding of substantial evidence, I pause to

more clearly articulate the governing legal standard under Wright Line’s burden-shifting

framework. 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455

U.S. 989 (1982), abrogated on other grounds by, N.L.R.B. v. Transp. Mgmt. Corp., 462 U.S. 393

(1983).

The place to begin is with the findings, purposes, and text as stated by Congress at the

time it enacted the NLRA. Congress declared that the policy of the United States is to eliminate

substantial obstructions to the free flow of commerce 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. To fulfill its purpose, the NLRA guarantees employees the

right “to self-organization, to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choosing, and to engage in other

concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

No. 23-1767 NLRB v. Starbucks Corp. Page 37

29 U.S.C. § 157. Congress “ensur[ed] robust protection of these rights,” Charter Commc’ns,

Inc. v. NLRB, 939 F.3d 798, 808–09 (6th Cir. 2019), by including provisions in the NLRA that

forbid employers from: discriminating in hiring to encourage or discourage membership in any

labor organization, 29 U.S.C. § 158(a)(3); interfering, restraining, or coercing employees in

exercising their rights under the NLRA, id. § 158(a)(1); and discriminating against employees

because they have filed charges or given testimony in NLRA proceedings, id. § 158(a)(4). All

three statutory protections are implicated by Starbucks’s actions.

The Supreme Court in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 403–04 (1983)

adopted the Board’s burden-shifting framework as articulated in Wright Line for reviewing a

discriminatory discharge claim. See Charter Commc’ns, 939 F.3d at 815 (recognizing the

Supreme Court’s adoption of Wright Line). Applying that framework here, the majority opinion

correctly states that the General Counsel had to show by a preponderance of the evidence that

Starbucks fired Whitbeck on the basis of anti-union animus. See id. It is undisputed that “if the

employer fires an employee for having engaged in union activities and has no other basis for the

discharge, or if the reasons that he proffers are pretextual,” the employer has committed an unfair

labor practice. Transp. Mgmt., 462 U.S. at 398.

A showing that anti-union animus motivated the employee’s discharge may be “inferred

from circumstantial as well as direct evidence.” Airgas USA, LLC v. NLRB, 916 F.3d 555, 561

(6th Cir. 2019) (quoting W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995)). Purely

circumstantial factors that support a finding of anti-union animus include

the company’s expressed hostility towards unionization combined with

knowledge of the employees’ union activities; inconsistencies between the

proffered reason for [discipline] and other actions of the employer; disparate

treatment of certain employees compared to other employees with similar work

records or offenses; a company’s deviation from past practices in implementing

the [discipline]; and proximity in time between the employees’ union activities

and their [discipline].

Id. The Board can also look to an employer’s conduct before and after the termination to

determine the “true motivation” for the discharge. NLRB v. Roemer Indus., 824 F. App’x 396,

404 (6th Cir. 2020) (collecting cases considering conduct before and after the termination).

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The majority opinion recounts many of the record facts supporting several of these

factors. Because the governing standard looks to substantial evidence, I pause to add only one

piece of circumstantial evidence omitted by the majority opinion—Starbucks’s deviation from its

past investigation and disciplinary procedures when discharging Whitbeck. The Board noted

flaws in Starbucks’s investigation of Whitbeck’s violation of the two-employee rule, centering

primarily on its deviation from Starbucks’s policy that considered mitigating factors in these

investigations. Starbucks’s corrective action policy states “the form of the corrective action

taken will depend on the seriousness of the situation and the surrounding circumstances.” And

Schmehl testified that Starbucks was consistent in applying this policy. Notwithstanding

Starbucks’s policy of considering the circumstances underlying a supposed violation, no one

asked Whitbeck why she left the store that night even though she stated in her incident report

that it was because of “something serious.”

A proper investigation would have shed light on several mitigating factors that should

have been considered in the disciplinary decision making. For example, such an inquiry would

have revealed the sensitive justification for Whitbeck’s departure—that her grandfather had had

a heart attack. Or, as the Administrative Law Judge noted, it would have revealed that

Whitbeck’s managers put her at risk of violating the two-employee rule because they scheduled

B.G.’s meal break for a time frame that extended beyond the end of her shift. In sum, these

mitigating factors would have (or should have) impacted the disciplinary measures taken by

Starbucks. I now turn to my dissent to address the remedies available for employees harmed by

their employer’s unfair labor practices.

B. Part III—The Board’s Award of Thryv Damages

Addressing the issue of damages requires a further dive into the history of the enactment

of the NLRA.1 The NLRA was borne out of economic strife that hindered the free flow of

commerce and resulted in periods of unrest, instability, and crisis for Americans. See National

Labor Relations Act, ch. 372, § 1, 49 Stat. 449, 449 (1935). Congress identified the reoccurring

problem of labor disputes, at the heart of which was the inequitable bargaining power between

1

Because I write to respond to the majority opinion’s position on damages under the NLRA, I do not

address the issue of Starbucks’s forfeiture.

No. 23-1767 NLRB v. Starbucks Corp. Page 39

individual employees and their company employers. Id. Congress’s chosen solution was to

enact the NLRA to promote and protect collective bargaining through which employees could

fairly negotiate their working conditions and livelihood. Id. To further this goal, the NLRA

identifies specific unfair labor practices that are common harms perpetrated against employees to

prevent unionization and collective bargaining. See 29 U.S.C. § 158. Unfair labor practices

reflect anti-union animus and, if left unremedied, operate as silencing mechanisms that

discourage future bargaining activities by the harmed employees as well as by the employees

who witness the unchecked actions of their employer. The NLRA, therefore, created the

National Labor Relations Board and authorized it to order the perpetrators of unfair labor

practices to “take such affirmative action including reinstatement of employees with or without

back pay, as will effectuate the policies of this [Act].”2 National Labor Relations Act, ch. 372,

§ 10(c), 49 Stat. 449, 454 (1935) (codified as amended at 29 U.S.C. § 160(c)).

The Supreme Court confirmed the plain meaning of the NLRA’s text—that the Board has

wide discretion to order affirmative action that effectuates the policies of the NLRA. Virginia

Elec. & Power Co. v. NLRB, 319 U.S. 533, 539 (1943). And the Court further explained that the

statute does not direct the Board to take affirmative action but empowers the Board to do so as

will effectuate the policies of the act. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 189 (1941).

And in response to a historical debate long put to rest, the Supreme Court disavowed reading the

plain text of § 10(c) to limit the Board’s remedies, as the word “including” signals an example

not a limitation. See id. As Phelps noted, limiting the statute by the word “including” would be

“to shrivel a versatile principle to an illustrative application.” Id.

Contemporaneous Supreme Court authority also made clear that because Congress could

not “define the whole gamut of remedies to effectuate [the policies of the Act] in an infinite

variety of specific situations,” arguments limiting the Board’s remedial power stand in direct

contradiction to the intention of Congress—to defer to the Board’s expertise in deciding the

“particular means by which the effects of unfair labor practices are to be expunged.” Id. at 194

(explaining that Congress did not limit the Board’s remedial power); Virginia Elec., 319 U.S. at

539–40 (emphasizing deference to the Board’s remedial discretion). Giving the Board’s

2

Hereinafter referenced to as § 10(c).

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remedial authority the “considerable weight” it is due, the Court held that the Board’s fashioning

of remedies “should stand 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.” Virginia

Elec., 319 U.S. at 540; accord Lou’s Transport, Inc. v. NLRB, 945 F.3d 1012, 1018 (6th Cir.

2019).

Within this wide discretion, the Board has always awarded make-whole remedies to fully

accomplish the policies of the NLRA. As the Supreme Court explained, “[m]aking 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.” Phelps, 313 U.S. at 197. And the NLRB has long

made clear, “[f]rom the earliest days of the Act, a make-whole remedy for employees injured by

unlawful conduct has been a fundamental element of the Board’s remedial approach. . . . The

Supreme Court has repeatedly underscored the essential role of make-whole relief in the

statutory scheme.” Goya Foods of Florida and United Here, CLC, 356 NLRB 1461, 1462

(2011). Such remedies rely on the Board’s expertise in rectifying the identified unfair labor

practices and “express an intuition of experience which outruns analysis and sums up many

unnamed and tangled impressions.” NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344,

348 (1953) (quoting Chicago, Burlington & Quincy R. Co. v. Babcock, 204 U.S. 585, 598

(1907)).

Traditionally, make-whole remedies have been understood as “a restoration of the

situation, as nearly as possible, to that which would have obtained but for the illegal

discrimination.” King Soopers, Inc. and Wendy Geaslin, 364 NLRB 1153, 1155 (2016) (quoting

Phelps, 313 U.S. at 194), enforced in relevant part, 859 F.3d 23, 37 (D.C. Cir. 2017). It is well

recognized that harms to employees, such as the paradigmatic case of being fired for supporting

unionization, can lead to significant downstream effects—from unpaid bills to the more current

danger of loosing medical insurance.

That is why restorative make-whole remedies under the NLRA have routinely, with

judicial approval, exceeded any claimed limitation to backpay and reinstatement only. The

Board has noted the multiplicity of specific remedies granted to enable a complete remedy that

makes the harmed employee whole. Examples of such remedies are interim employment

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expenses, Crossett Lumber Co., 8 NLRB 440, 497–98 (1938); search-for-work expenses, King

Soopers, Inc., 364 NLRB 1153 at 1156–60; compensation for investment growth not realized,

Lou’s Transp., Inc. & T.K.M.S., Inc., 366 NLRB No. 140, 2018 WL 3570875 (July 24, 2018),

enforced, 945 F.3d 1012 (6th Cir. 2019); legal fees to handbilling employees, Baptist Mem’l

Hosp., 229 NLRB 45, 46 (1977); reimbursement for damaged toolboxes, Napleton Cadillac of

Libertyville, 367 NLRB No. 6, slip op. at 4, 2018 WL 4694098 (Sept. 28, 2018), enforced per

curiam, 976 F.3d 30 (D.C. Cir. 2020); and monetary reimbursement for clothing ruined, BRC

Injected Rubber Prods., Inc., 311 NLRB 66, 66 n.3 (1993). The effect of these remedies is to

retain the previously bargained for terms of employment and re-establish the bargaining power

of the harmed employees and their chosen representatives, thereby restoring the status quo as if

an unfair labor practice had never happened.

The Board’s recent decision in Thryv, 372 NLRB No. 22, 2022 WL 17974951 (Dec. 13,

2022), is consistent with this long-standing precedent. The Board continued its practice of

awarding make-whole remedies by expressly ordering respondents “to compensate affected

employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of

the respondent’s unfair labor practice.” Id. at 1. This directive is consistent with what the Board

has ordered in the past. For example, when an employer “terminated employees’ health

insurance without informing the union or its employees while continuing to deduct healthcare

premiums,” the Board held that it was “entirely foreseeable that the affected employees would

incur out-of-pocket expenses in the interim.” Id. at 20 (citing Voorhees Care & Rehab. Ctr., 371

NLRB No. 22, slip op. at 3–4, 2021 WL 3812220 (Aug. 25, 2021)). The Board therefore ordered

the employer to reimburse the employees for the costs they occurred, including: “increases in

premiums, copays, coinsurance, deductibles, and other out-of-pocket expenses, as well as to pay

any still-unpaid medical bills directly to the medical providers.” Id. (citation modified). Or

when an employer unlawfully reassigned a union activist to a job pulling nails that aggravated

her carpal-tunnel syndrome and caused her other harm, the Board made the employee whole by

reimbursing her for any medical expenses, plus interest, incurred “as a result of the unlawful

reassignment.” Nortech Waste, 336 NLRB 554, 556 (2001).

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There are, of course, limits on remedies tied to the Act. The Supreme Court has held the

Board to be outside its authority when it seeks to award remedies that are not “tailored to the

unfair labor practice it is intended to redress.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900

(1984). The Court explained that the “remedy must be sufficiently tailored to expunge only the

actual, and not merely speculative, consequences of the unfair labor practices.” Id. at 900–01.

The Board explained that Thryv damages are limited to “those which can fairly be said to

effectuate the policies of the Act.” 372 NLRB No. 22, slip op. at 10 (quoting Fibreboard Paper

Products Corp. v. NLRB, 379 U.S. 203, 203 (1964) (quoting Virginia Elec., 319 U.S. at 539

(citation modified))). This limitation assures that the NLRA’s “statutory purpose” will be

fulfilled by Board remedies that ensure employees are fully restored to the situation they would

have inhabited but for a respondent’s unfair labor practice. Id. at 15.

Without speaking to the broader debate regarding equitable versus legal limitations,

Thryv expounds on the Board’s power to grant equitable remedies; it does not purport to expand

that power to legal remedies. The Supreme Court recently addressed the contours of equitable as

opposed to legal claims based on the principle that the Seventh Amendment and the right to a

jury trial is implicated when a claim is legal in nature. SEC v. Jarkesy, 603 U.S. 109, 123

(2024); (Maj. Op. at 23). And as the Seventh Amendment “embrace[s] all suits which are not of

equity or admiralty jurisdiction,” a claim held to be of equity does not implicate the Seventh

Amendment. 603 U.S. at 122. Because some causes of action “sound in both law and equity,”

the Court explained, the remedy is the “more important” consideration in discerning between the

two. Id. at 122–23.

It is important to note that Jarkesy arises in the different context of imposing civil

penalties for violations of securities laws in administrative penalty proceedings, whereas this

case concerns make-whole remedies. Id. at 118–19. Jarkesy teaches that although “monetary

relief can be legal or equitable,” the distinction depends on whether “it is designed to punish or

deter the wrongdoer, or, on the other hand, solely to ‘restore the status quo.’” Id. at 123 (quoting

Tull v. United States, 481 U.S. 412, 422 (1987)). The Supreme Court explained that “only courts

of law issued monetary penalties to ‘punish culpable individuals,’” meaning that punitive

remedies are one category of legal remedies. Id. A punitive remedy “cannot fairly be said solely

No. 23-1767 NLRB v. Starbucks Corp. Page 43

to serve a remedial purpose, but rather can only be explained as also serving either retributive or

deterrent purposes.” Id. (quoting Austin v. United States, 509 U.S. 602, 610 (1993)). An

equitable remedy, however, seeks solely to restore the status quo. Id. I agree with the majority

opinion that “[p]unitive remedies . . . are merely a subset of the broader range of legal

remedies.” (Maj. Op. at 32). But I do not agree with the majority opinion’s mischaracterization

of my position as contending that all legal remedies are punitive. (Maj. Op. at 32). Because I do

not make that contention, the majority opinion’s conclusions regarding that position and its

impact on Title VII are simply inapposite.

Applying Jarkesy here starts with the Supreme Court’s explanation of the Board’s power.

Soon after the enactment of the NLRA, the Supreme Court recognized the Board’s power to be

“remedial, not punitive,” holding that Congress did not vest the Board with “punitive jurisdiction

enabling the Board to inflict upon the employer any penalty it may choose.” Republic Steel

Corp. v. NLRB, 311 U.S. 7, 11–12 (1940) (citing Consolidated Edison Co. v. NLRB, 305 U.S.

197, 235 (1938)). This limitation has been reflected routinely in Board orders. See, e.g., M & M

Affordable Plumbing, No. 13-CA-121459, 2018 WL 1255489, slip op. at 10 (N.L.R.B. Div. of

Judges Mar. 9, 2018) (“The Board . . . is not prepared to deviate from its current remedial

practice and will not order reimbursement of consequential damages.”); Cascades

Containerboard Packaging, 371 NLRB No. 25, slip op. at 6 n.9, 2021 WL 4078443 (Aug. 27,

2021) (“The imposition of a monetary remedy in addition to those necessary to make

discriminatees whole would exceed the Board’s remedial authority, as the Supreme Court has

held.”).

By indicating that the remedy in every case should address making the harmed employee

whole, Thryv goes no further. Indeed, it acts as a guardrail that keeps the Board within the

equitable boundaries from which the majority opinion claims it has strayed. Consider the way

Thryv defines “direct and foreseeable”—direct harms are those “directly caused by the unfair

labor practice,” and foreseeable harms are those “foreseeable at the time of the unfair labor

practice and . . . incurred as a result of the unfair labor practice.” 372 NLRB No. 22, slip op. at

19. These definitions tie the remedies granted to the specific unfair labor practice committed and

confines them to the scope of the Board’s statutory authority to provide make-whole redress. It

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further establishes procedural safeguards by requiring the General Counsel, in compliance

proceedings, to provide evidence of “the amount of pecuniary harm, the direct or foreseeable

nature of that harm, and why that harm is due to the respondent’s unfair labor practice.” Id. at 9.

And it then gives the respondent a guaranteed opportunity to challenge the relief requested by

arguing that it is not direct or foreseeable, or that it would have occurred regardless of the unfair

labor practice. Id. Such safeguards ensure both that the Board does not exceed its equitable

authority and trespass into legal remedies by imposing fines or sanctions, and that its remedies

are applied consistently. These guardrails prevent the very “speculative assessments and harsh

results” the majority opinion hypothesizes will occur. (Maj. Op. at 29–30).

The majority opinion challenges the historic caselaw and this text-based analysis by

positing a policymaking rationale for Thryv damages and then declaring that rationale the “crux

of their unlawfulness.” (Maj. Op. at 24). It does so by faulting the Board as measuring monetary

relief from “the standpoint of the employee’s loss, indicating its compensatory nature, rather than

the employer’s gain, which invokes equitable considerations.” (Maj. Op. at 24). But such

assumption of what lies in equity ignores Jarkesy’s straightforward test—that if a remedy is

“designed to punish and deter, not to compensate,” 603 U.S. at 125 (emphasis added), then it is

“legal in nature” and the Seventh Amendment attaches, id. at 122. The Supreme Court’s test

emphasized that because the SEC was “not obligated to return any money to victims,” the civil

penalties they sought were not, by definition, a remedy that restored the status quo and could

“make no pretense of being equitable.” Id. at 124. Unlike the SEC’s remedy there, Thryv

focuses solely on restoring the status quo by compensating employees for the harms caused by

the unfair labor practice and reestablishing the employees’ bargaining position with the

employer, thereby reviving the employees’ rights “to bargain collectively through representatives

of their own choosing, and to engage in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

In sum, the Board’s application of Thryv in ordering Starbucks to make Whitbeck whole

for its unlawful discharge, including relief for direct or foreseeable pecuniary harms resulting

from Starbucks’s unfair labor practice, was well within the Board’s discretion and statutory

authority.

No. 23-1767 NLRB v. Starbucks Corp. Page 45

II. CONCLUSION

Supreme Court precedent, history and tradition, and the plain text of the NLRA all lead to

the conclusion that Thryv correctly relies upon decades of Supreme Court precedent, safeguards

within the bounds of equity the actions of the Board, and fully effectuates the instructions of

Congress in the NLRA. I therefore respectfully concur in the judgment as to Parts I and II of the

majority opinion and dissent with respect to Part III.