Harvard Maintenance v. NLRB

Case: 24-60523 Document: 83-1 Page: 1 Date Filed: 02/02/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

February 2, 2026

No. 24-60523

Lyle W. Cayce

____________ Clerk

Harvard Maintenance, Incorporated,

Petitioner/Cross-Respondent,

versus

National Labor Relations Board,

Respondent/Cross-Petitioner.

______________________________

Petition for Review and Cross-Application for Enforcement of

a Decision of the National Labor Relations Board

Agency Nos. 02-CA-254451, 02-CA-258382

______________________________

Before Smith, Dennis, and Richman, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Harvard Maintenance, Incorporated, employed Carina Cruz. During

the process of lodging a series of complaints for purported violations of the

collective bargaining agreement, Cruz faced threats by her supervisors, ulti-

mately resulting in her termination. After her termination, she made a com-

plaint to the National Labor Relations Board (“NLRB” or the “Board”),

where an administrative law judge (“ALJ”) found that Harvard Maintenance

unlawfully threatened, suspended, and fired her. To remedy those viola-

tions, the ALJ required Harvard Maintenance to pay Cruz backpay, reim-

burse her for all “search-for-work-related expenses,” and compensate her

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No. 24-60523

for “any direct or foreseeable pecuniary harms incurred as the result of the

unlawful discharge.”

The NLRB adopted the ALJ’s order, leading Harvard Maintenance to

petition for review and the Board to cross-petition for enforcement. Harvard

Maintenance challenges (1) the findings as to coercive statements; (2) the

finding of an unlawful discharge; and (3) the remedy of “direct and foreseea-

ble pecuniary harms suffered as a result of” the discharge. Although the

NLRB’s findings on Harvard Maintenance’s violations of the law are sup-

ported by substantial evidence, the award of consequential damages exceeds

the Board’s statutory authority under the National Labor Relations Act

(“NLRA”). Consequently, we deny Harvard Maintenance’s request for

relief as to the NLRB’s findings of coercive statements and unlawful dis-

charge, and we vacate the portion of the order awarding consequential

damages.

I.

Harvard Maintenance, a New York City janitorial contractor, em-

ployed Cruz as a cleaner. On January 3, 2020, Cruz complained at a meeting

that Harvard Maintenance was assigning cleaners to clean microwaves and

refrigerators, which she said violated the collective bargaining agreement.

That evening, she called supervisor Juliana Perdoda to ask for another super-

visor’s name in order to complain to the Union and to the NLRB. On that

phone call, Perdoda allegedly told Cruz that she could file a complaint but

warned that Cruz could end up suspended or with a warning if she did so.

The parties dispute what happened at a March 18, 2020, meeting,

which was one of many that Cruz had recorded during her time at the com-

pany. The ALJ found that Cruz had complained about the quality of the

gloves. Cruz testified that she argued only about the lengths of employees’

shifts. Eventually, she left when she was told to go home.

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On March 19, Cruz went back to work. She spoke with Murat Mela,

VP of operations, who asked her not to return until after the coronavirus if

she kept insisting on expressing her opinions. She agreed to go back to work,

and as her shift was starting, she spoke with Iljka Feratovic about the latter’s

workplace concerns. Blerina Alajbegu, a manager, told her to stop “interfer-

ing” or to “go home,” stating that she “thought Noah [transcription error

for Mela] was clear with you.”

After a brief back-and-forth, Alajbegu told Cruz to go home. Her sus-

pension was converted to a termination that June.

II.

Section 7 of the NLRA guarantees employees’ “right to self-organi-

zation, to form, join, or assist labor organizations, and to bargain collectively,

as well as engage in other concerted activities for the purpose of . . . mutual

aid or protection.” See Renew Home Health v. NLRB, 95 F.4th 231, 242 (5th

Cir. 2024) (citation modified). Concerted activities include those “of em-

ployees who have joined together in order to achieve common goals.” Mobil

Expl. & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 238 (5th Cir. 1999).

Section 8(a)(1), in turn, “makes it an unfair labor practice for an em-

ployer to ‘interfere with, restrain, or coerce employees in the exercise of their

Section 7 rights.’” Apple Inc. v. NLRB, 143 F.4th 291, 296 (5th Cir. 2025)

(quoting 29 U.S.C. § 158(a)(1)) (citation modified). We ask “whether the

employer’s questions, threats or statements tend to be coercive, not whether

the employees are in fact coerced” or what the employer’s motivation was.

Renew, 95 F.4th at 242.

The NLRB’s “factual findings are ‘conclusive’ if they are ‘supported

by substantial evidence on the record as a whole.’” Apple, 143 F.4th at 297.

We uphold those findings “only if they are supported by evidence that is sub-

stantial when viewed in light of the record as a whole, including ‘whatever in

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the record fairly detracts from its weight.’” Id. We ask whether “a reason-

able person could have found what the ALJ found, even if this court may have

reached a different conclusion.” Renew, 95 F.4th at 239. The ALJ’s “credi-

bility determinations are binding . . . unless”: “(1) the credibility choice is

unreasonable, (2) the choice contradicts other findings, (3) the choice is

based upon inadequate reasons or no reason, or (4) the ALJ failed to justify

his choice.” Id. We review challenges to the Board’s legal conclusions

de novo and its procedural and evidentiary determinations for abuse of

discretion. Id.

A.

The ALJ found that the Company violated section 8(a)(1) when

supervisor Juliana Perdoda “threatened Cruz [over the phone] with suspen-

sion, warnings and/or unspecified reprisal for engaging in union activities or

filing charges with the Board.” According to Cruz, she told Perdoda that she

would “file a claim with the union and the NLRB,” and Perdoda responded,

“[Y]ou’re free to do it but I just want to warn you to be careful, you might

end up being suspended or getting warning.” Perdoda denied so warning

Cruz.

The dispute hinges on the NLRB’s credibility determinations. The

ALJ found that Cruz was more credible than the company’s witnesses and

based his ruling partially on the demeanor of the witnesses. The company

does not contest that Cruz’s claim with the union and the NLRB would have

been protected activity. It also does not dispute that the statements the Board

found Perdoda made are unlawful.

The company asserts that the ALJ was unreasonable to credit Cruz’s

testimony because it was inconsistent. For instance, Cruz once called a

March 18 “gathering” a “meeting” but another time said it was not a meet-

ing. The company also notes that Cruz’s testimony changed about whether

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she played her audio recordings for other people. It complains that she flip-

flopped when asked if she had recorded the January 4 phone call. The com-

pany also says that the ALJ should have drawn an adverse inference against

the General Counsel because he failed to call Eva Barcicki—who was with

Cruz during the disputed call—as a witness.

As stated above, we are bound to defer to the ALJ’s credibility deter-

minations unless a high bar is met. Likewise, the substantial-evidence stan-

dard is easy for Board to satisfy. 1 The inconsistencies were either immaterial

or were not so unreasonable as to undo the deference owed to the ALJ. In

other words, the ALJ was reasonable to credit Cruz’s testimony.

As to whether she had recorded the January 4 phone call, Cruz had

recorded over 90 conversations, her being uncertain about whether she

recorded a single call is reasonable, and only a painfully literal reading of the

ALJ’s opinion contradicts the ALJ’s finding that Cruz was a “mostly credible

witness” who had “no trouble recalling facts.” 2 In addition, recordings of

relevant meetings were inconsistent with Perdoda’s testimony; on that basis

alone, the ALJ had sufficient justification for discrediting Perdoda’s testi-

mony and crediting Cruz’s. Lastly, though the “failure to call [an] available

witness[] likely to have knowledge” may trigger an adverse inference, there

is no reason to think that Barcicki would have heard what Perdoda said on the

other end. 3

_____________________

1

See Universal Camera Corp. v. NLRB, 340 U.S. 456, 474 (1951) (stating that a court

cannot “displace the Board’s choice between two fairly conflicting views, even though the

court would justifiably have made a different choice had the matter been before it

de novo.”).

2

Cf. Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 373 (2023) (warning against

parsing court opinions like statutes by excising them from their context).

3

See NLRB v. E-Sys., Inc., 103 F.3d 435, 439 (5th Cir. 1997).

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Because the ALJ’s credibility determination was reasonable, and the

Board’s decision was supported by substantial evidence, we deny Harvard

Maintenance’s request for relief as to the January 3 statements.

B.

Regarding the alleged violations that occurred on March 19, Cruz tes-

tified that she was talking to Iljka Feratovic about the latter’s workplace con-

cerns. Cruz told Feratovic “to do the job” and that Cruz would talk to the

union delegate later, which was corroborated by an audio recording. Alajbegu

told her to stop “interfering.” Alajbegu rejected Cruz’s explanation that

Feratovic had started the conversation. Cruz asserted “the right to talk about

working conditions with the co-workers,” but Alajbegu told her “to go back

to work or . . . go home.” After Cruz refused, Alajbegu sent her home. Alaj-

begu testified that she told Cruz not to “interfere” with Feratovic when Cruz

was “inciting fear into [Feratovic] and putting words in her mouth,” causing

Feratovic to stop working.

The ALJ found that Alajbegu unlawfully threatened Cruz on March 19

by telling Cruz to stop “interfering” as she was speaking with Feratovic. The

ALJ stated, “Applying the same analysis as above, I find Alajbegu’s words to

have been a clear and overt threat that not only had a reasonable tendency to

be coercive but were specifically designed to coerce Cruz to stop engaging in

protected concerted activity.”

The record has enough evidence to support the ALJ’s finding of a

coercive statement. We ask whether Cruz “could reasonably conclude that

the employer is threatening economic reprisals if the employee supports pro-

tected conduct.” See Renew, 95 F.4th at 243 (citation modified). The answer

to that question is yes. Immediately before, Mela Murat (VP of Operations)

had told Cruz not to “come back until the Coronavirus is done” if she

insisted on exercising the “right to express my opinions” about the work-

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place. When Alajbegu caught Cruz talking with Feratovic, Alajbegu told

Cruz, “Um, I thought Noah [transcription error for Mela] actually was clear

with you . . . If you’re going to continue interfering, I’m gonna need you to

go home.” In context, Cruz could reasonably conclude that “interfering”

was code for her opinions or protected activity and that she would be sus-

pended if she continued.

The company contends that Alajbegu’s statements couldn’t have

been a threat because, at the time, she hadn’t known that Cruz and Feratovic

had been discussing workplace conditions. Even if that were true, an em-

ployer’s subjective motivation is irrelevant. 4

Because the Board’s decision was supported by substantial evidence,

we deny Harvard Maintenance’s request for relief as to the March 19 coer-

cive statements.

III.

Next, we address the NLRB’s determination that Harvard Mainten-

ance suspended Cruz on March 18, and suspended, then discharged, her on

March 19, because of her protected conduct. Her final termination was that

June. We deny the company’s request for relief.

“[A]n employer’s termination of an employee violates Section 8(a)(1)

if the employee’s protected conduct was a motivating factor in the decision

to discharge the employee. The employee’s protected activity must be at

least ‘a substantial or motivating factor,’ but need not be ‘the sole motivating

factor.’” Renew, 95 F.4th at 245 (citation modified).

_____________________

4

See Renew, 95 F.4th at 242 (“The analysis is framed from the perspective of the

employee and is not contingent on ‘either the motivation behind the remark or its actual

effect.’”) (quoting Miller Elec. Pump & Plumbing, 334 NLRB 824, 824 (2001)).

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The parties agree that we apply the Wright Line framework. See id. at

244. Under that framework, “the General Counsel must show, by a prepon-

derance of the evidence, that [1] the employee was engaging in protected

activity, [2] the employer had knowledge of the activity, [3] adverse action

was taken against the employee, and [4] the activity was a motivating factor

in the decision to discharge the employee.” NLRB v. Arkema, Inc., 710 F.3d

308, 320–21 (5th Cir. 2013). The company may then prove an affirmative

defense that it would have fired the employee regardless of the protected

activity. Cordua Rests., Inc. v. NLRB, 985 F.3d 415, 423–24 (5th Cir. 2021).

A. Protected Activity

Again, concerted activity “embraces the activities of employees who

have joined together in order to achieve common goals.” Mobil, 200 F.3d

at 238. As discussed below, the ALJ reasonably found that Cruz was engaged

in protected activity when she spoke up at the March 18 pre-shift meeting,

complaining about the rubber gloves, and on March 19 when she was speak-

ing with Feratovic. It also noted “multiple grievances and unfair labor prac-

tice[]” reports that constituted protected activity, activity that the company

doesn’t dispute.

1. March 18 Meeting

The company denies that Cruz’s conduct on March 18 was protected

because Cruz disrupted the safety meeting and “disparaged (using profanity)

the gloves [the company] provided.” The Board’s opposite conclusion was

reasonable.

At a brief meeting on March 18, Cruz argued with manager Perdoda

about shift lengths, sometimes interrupting her. 5 Eventually, Cruz said, “I

_____________________

5

Although the ALJ found, and Perdoda testified, that Cruz’s complaints were

about gloves, that is unsupported by the recording’s transcript or by Cruz’s testimony.

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will report you,” to which Perdoda responded, “You have the right to report

me.” After that, Cruz retorted, “I will,” and Perdoda then instructed,

“Right now change and go home. I’ve had it—enough. Change and go home

right now.”

The ALJ reasonably found that the incident was protected activity.

She raised collective concerns about employees’ shift lengths and stated that

she would “report” Perdoda, stating “If we not working the eight hours . . .

Why should we be working—the complete four hours?” Those complaints

“had some relation to group action in the interests of the employees.” Mobil,

200 F.3d at 239.

Nor did Cruz’s March 18 conduct lose protection as “abusive” or

“flagrantly insubordinate.” See id. at 238. Though she may have been rude,

there is no evidence that she was “insulting, provocative or violent.” Id. at

241–43 (stating that employees have “some leeway for impulsive behavior”).

It is also important that the recording showed no profanity, contrary to Har-

vard Maintenance’s claims.

2. March 19 meeting

Again, on March 19, Cruz and Feratovic were discussing the latter’s

workplace concerns. Cruz told her to “do the job” and that Cruz would talk

to the union delegate later. Alajbegu instructed Cruz to stop “interfering”

or to “go home.” Cruz asserted the right “to talk about working conditions”

and said that she would “report this.” Alajbegu then told Cruz to “go

home.”

The ALJ reasonably determined that Cruz’s March 19 conduct—with

_____________________

More importantly, the transcript contains no profanity of which the company and Perdoda

complained.

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references to “reporting” and “working conditions”—had “some relation

to group action in the interest of the employees” and thus constituted pro-

tected activity. See id. at 239. To the extent the company’s witnesses testi-

fied differently, we defer to the ALJ’s resolution of such conflicts. 6

B. Knowledge of Protected Activity and Adverse Action

Next, the Board must show that the employer knew about Cruz’s

protected activity. Arkema, 710 F.3d at 320–21. Harvard Maintenance does

not dispute knowledge—only whether the conduct was protected. Nor can

there be any dispute that she experienced adverse action when she was ulti-

mately terminated.

C. Motivated by Animus

Next, the “protected activity must be at least ‘a substantial or moti-

vating factor,’ but need not be ‘the sole motivating factor,’” for the adverse

employment action. Renew, 95 F.4th at 245. We consider (1) “the timing of

the employer’s action in relationship to union activity,” (2) “the presence of

other unfair labor practices,” (3) the failure to investigate the conduct alleged

as the basis for the discipline,” (4) “discipline that deviates from the

employer’s past disciplinary practice,” (5) “implausibility of the employer’s

explanation,” (6) “inconsistencies between the employer’s proffered reason

. . . and other actions of that employer,” and (7) “the seriousness of the

alleged violation.” Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 465 (5th Cir.

2001).

The ALJ reasonably determined that the company was motivated by

_____________________

6

See NLRB v. Brookwood Furniture, 701 F.2d 452, 456 (5th Cir. 1983) (“[W]here,

as here, the record is fraught with conflicting testimony, requiring essential credibility

determinations to be made, the trier of fact's conclusions must be accorded particular

deference.”).

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protected activity in firing Cruz. See Renew, 95 F.4th at 245 (deferring to the

NLRB’s intent finding). Managers had threatened Cruz with a suspension

or warning during previous times when she had engaged in protected activity,

so the ALJ was reasonable to find that they were motivated by that activity

when they finally fired her. It cited also the “timing of [the company’s] deci-

sion,” which was “within 24 hours of the [March 18 and 19 protected] con-

duct here.” 7

The ALJ also reasonably found that the company had imposed less

punishment for “similar or more severe misconduct.” Valmont, 244 F.3d

at 465. The Board cites several examples of employees who were warned and

not immediately discharged:

• An employee was warned and suspended for three days for being

late and, when confronted, “yelling” at her supervisor over the

phone.

• One was warned for poor work performance and for yelling at his

supervisor when confronted.

• One was warned and suspended for sexual harassment.

• When verbally warned for tardiness, an employee “started raising

his voice” at his supervisor; he was suspended for insubordination

and told to go home.

The ALJ asserted, and the company does not dispute, that Cruz had no his-

tory of misconduct in the 18 years she worked there, in contrast to these

employees. But while employees with worse behavior were suspended, Cruz

was terminated. The ALJ also noted, and the company doesn’t dispute, that

the company didn’t conduct much of an investigation before terminating

Cruz. 8

_____________________

7

See Cordua Rests., Inc. v. NLRB, 985 F.3d 415, 426 (5th Cir. 2021) (considering

timing of discharge).

8

See NLRB v. Esco Elevators, Inc., 736 F.2d 295, 299 n.5 (5th Cir. 1984) (finding

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The company asserts that it fired Cruz because of “[h]er disruptions,

interference, and refusal to follow reasonable management instructions.”

That “loud and disruptive behavior” was sometimes in the presence of cli-

ents. The company stresses that, in each of three recorded conversations on

the record, supervisors “positively and consistently communicated their rec-

ognition that Cruz had the right to address her concerns by filing grievances,

ULP charges, and otherwise.” But the ALJ reasonably rejected that explan-

ation, especially in light of “audio recordings” that contradicted it. Brook-

wood, 701 F.2d at 456.

The ALJ’s determination was thus reasonable that the company was

motivated by Cruz’s protected activity, and we defer to that decision. 9

D. Affirmative Defense

Harvard Maintenance has an affirmative defense if it can prove that it

would have fired Cruz regardless of the protected conduct. Cordua, 985 F.3d

at 423–24. The NLRB cited several reasons for rejecting the company’s

affirmative defense. Its conclusion was reasonable, and we defer to it.

To prove that it would have fired Cruz regardless of any protest and

on account of her insubordination and disruption, the company points to

three examples of employees it fired:

• Tineo was fired after yelling, “using profanity and being abusive”

with a supervisor and foreman, and telling them “in a threatening

manner, that [he was] going to record our conversation,” after the

supervisor told him to take out the trash. Tineo was repeatedly

warned for multiple prior violations of policy.

_____________________

that a “one-sided investigation” is indicative of discriminatory animus).

9

See Brookwood, 701 F.2d at 456 (“[W]here, as here, the record is fraught with

conflicting testimony, requiring essential credibility determinations to be made, the trier of

fact’s conclusions must be accorded particular deference.”).

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• When a foreman complained that Santana was refusing to follow in-

structions, a supervisor tried to convince Santana to work; he “to-

tally ignore[d]” the supervisor and refused to take the keys neces-

sary for that day’s work. The company fired him.

• When handed a holiday bonus check by a client, Acevedo “became

loud and obnoxious” and “flung the check.” He was terminated five

days later.

The ALJ reasonably found that the company wouldn’t have fired or sus-

pended Cruz had she not engaged in protected conduct. See Valmont,

244 F.3d at 465 (considering disparate discipline). Even if Cruz had talked

back to her supervisor, her misconduct was not like Santana’s, who refused

to do his work or to take the keys necessary for the work. Although the com-

pany asserts that Cruz used profanity or caused a panic, the Board reasonably

rejected that testimony, as discussed previously.

As a consequence of the previous analysis, Harvard Maintenance’s

petition for review is denied in regard to the findings of coercive statements

and the discharge.

IV.

Harvard Maintenance challenges the NLRB’s remedy of direct and

foreseeable pecuniary damages, which it says exceeds the NLRB’s statutory

authority and violates the Seventh Amendment. 10 The NLRB first pre-

scribed that remedy in Thryv, Inc., 372 NLRB No. 22, 2022 WL 17974951

(Dec. 13, 2022), vacated in part on other grounds by Thryv, Inc. v. NLRB, 102

F.4th 727 (5th Cir. 2024).

_____________________

10

Because we ultimately determine that the NLRB did not have statutory authority

to prescribe the Thryv remedy, we need not reach the question whether the order of

pecuniary damages violated the Seventh Amendment.

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A. Jurisdiction and Exhaustion

First, the NLRB contends that the court doesn’t have jurisdiction to

consider the argument regarding Thryv remedies because Harvard Mainten-

ance did not raise it before the NLRB. The company avers that it wasn’t

required to exhaust because exhaustion would have been futile.

Absent “extraordinary circumstances” excusing “the failure or ne-

glect” to raise an argument, “[n]o objection that has not been urged before

the Board . . . shall be considered by the court.” 29 U.S.C. § 160(e). That

rule applies also to constitutional arguments. 11 One “extraordinary circum-

stance[]” excusing the exhaustion requirement is futility. 12 This court ex-

cused the exhaustion requirement where, inter alia, the Board had “dis-

cussed” the unexhausted issue of due process. 13

The futility exception likewise applies here. The Board considered,

and rejected, dissenting board member Kaplan’s position that the make-

whole remedy was unlawful. And “[a]ny attempt by [the company here] to

add to the debate . . . would have been futile.” Id. In addition, the Board

insists that its remedy from Thryv “remains valid precedent.” 14 Therefore,

failure to exhaust does not preclude the company’s challenge here.

_____________________

11

D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 351 (5th Cir. 2013).

12

See id. at 551 (acknowledging a “futility exception where it would be an empty

formality to require filing a motion to reconsider before the Board”); NLRB v. Robin Am.

Corp., 667 F.2d 1170, 1171 (Former 5th Cir. Unit B 1982) (finding exhaustion “futile, if not

frivolous” partly because Board’s order was “in accord with Fifth Circuit precedent” at

the time.).

13

See Indep. Elec. Contractors, Inc. v. NLRB, 720 F.3d 543, 552 (5th Cir. 2013)

(finding the NLRB had “preemptively denied that it had denied due process,” so “[a]ny

attempt by the [company] to add to the debate . . . would have been futile.”).

14

Thryv, 2022 WL 17974951, at *9; see Robin, 667 F.2d at 1171 (futility where

Board’s order “was fully in accord with Fifth Circuit precedent”).

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B. Statutory Authority

Section 10(c) allows the NLRB to order an employer “to cease and

desist from such unfair labor practice, and to take such affirmative action

including reinstatement of employees with or without back pay, as will effec-

tuate the policies of this subchapter.” 29 U.S.C. § 160(c). Harvard Mainten-

ance asserts that that provision allows the NLRB to order only equitable

remedies, not legal remedies addressed to the “direct or foreseeable pecuni-

ary harms” awarded here.

The NLRB avers that § 160(c) does not limit the Board to equitable

relief and permits all remedies that “bear[] appropriate relation to the poli-

cies of the Act.” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 348 (1953)).

But even if the statute permits only equitable remedies, the NLRB contends

that the Thryv remedy is equitable. As this court recently held in Hiran Man-

agement, Inc. v. NLRB, 157 F.4th 719 (5th Cir. 2025), the Thryv remedy does

exceed the NLRB’s statutory authority because the Board can give only

equitable relief, and the Thryv remedy is legal relief.

1. Whether the Statute Permits Non-Equitable Remedies

The first issue is whether § 160(c) permits the NLRB to order only

relief that is equitable. As the Third Circuit explained in NLRB v. Starbucks

Corp. 15 and as this court recently explained in Hiran, 157 F.4th at 725, the text

of § 160(c) allows only equitable remedies. See Starbucks, 125 F.4th 78, 95

(3d Cir. 2024). The Board may “order entities ‘to cease and desist’ and to

take ‘affirmative action.’” 16 That is a description of the role of courts of

_____________________

15

Judges Eid and Bumatay also explained this point in dissents. See 3484, Inc. v.

NLRB, 137 F.4th 1093, 1116 (10th Cir. 2025) (Eid, J., dissenting); Int’l Union of Operating

Eng’rs v. NLRB (“Macy’s”), 127 F.4th 58, 88 (9th Cir. 2025) (Bumatay, J., dissenting),

petition for cert. filed (U.S. Nov. 26, 2025) (No. 25-627).

16

Starbucks, 125 F.4th at 95 (first quoting Ex parte Lennon, 166 U.S. 548, 556 (1897);

then quoting Samuel L. Bray, The System of Equitable Remedies, 63 U.C.L.A. L. Rev. 530,

15

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equity, which could “restrain[] . . . contemplated or threatened action” or

“require affirmative action, where the circumstances of the case demand it.”

Lennon, 166 U.S. at 556.

The statute’s “affirmative action” examples also show that it allows

only equitable relief. It includes reinstatement with backpay, which is equit-

able because it “is based on what an employer has wrongfully withheld from

an employee, . . . ‘a form of restitution.’” Starbucks, 125 F.4th at 96 (quoting

Curtis v. Loether, 415 U.S. 189, 197 (1974)). 17

The Act’s design also demonstrates that its remedy is limited to

equitable relief. Its purposes are “to prevent . . . the costly dislocation and

interruption of the flow of commerce caused by unnecessary industrial strife

and unrest.” Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 539, 540 (1943).

It was not “a general scheme authorizing the Board to award full compensa-

tory damages.” 18 A scheme “to award full compensatory damages,” Russell,

356 U.S. at 642–43, or other legal relief would thus violate the Act’s purpose,

Va. Elec., 319 U.S. at 539, 540. “[I]t is not enough . . . to say that they would

have the effect of” encouraging fair labor practices; otherwise, the NLRB

“would be free to set up any system of penalties” it wanted. 19

The Board also points to Phelps Dodge Corp. v. NLRB, 313 U.S. 177,

_____________________

553 (2016) (describing equitable remedies as a “way for courts to compel action or

inaction”)).

17

See also Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900–01 (1984) (describing “back-

pay” under § 160(c) as “equitable”); Johnson v. Ga. Highway Exp., Inc., 417 F.2d 1122,

1125 (5th Cir. 1969) (stating that Title VII backpay is not damages but instead is an “integral

part of the statutory equitable remedy”).

18

Int’l Union, United Auto., Aircraft & Agric. Implement Workers of Am. (UAW-

CIO) v. Russell, 356 U.S. 634, 642–43 (1958); accord Starbucks, 125 F.4th at 95–96.

19

See Republic Steel Corp. v. NLRB, 311 U.S. 7, 11 (1940) (holding that the statute

doesn’t convey “virtually unlimited discretion to devise punitive measures”).

16

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188 & n.6 (1941), under which, it says, the Court implicitly rejected an

equitable-relief limitation. But that case was about whether the NLRB could

order an unenumerated form of equitable relief—the hiring of a wrongfully

rejected candidate, as distinguished from the reinstatement of a wrongfully

fired employee—not about whether the NLRB could order legal relief. Id.

at 188; see 3484, Inc., 137 F.4th at 1126 (Eid, J., dissenting).

ii. Whether the Thryv Remedy Is Legal or Equitable

The NLRB ordered Harvard Maintenance to “[m]ake Carina Cruz

whole for . . . any other direct or foreseeable pecuniary harms, suffered as a

result of the discrimination against her.” The Board asserts that its Thryv

remedy is equitable. 20 That remedy “is not designed to ‘punish bad

actors,’” it says, which would make the remedy legal, but “to undo the

coercive effects of unfair labor practices so that employees are willing to

exercise their statutory rights again in the future.” Harvard Maintenance,

on the other hand, contends that the remedy constitutes legal compensatory

damages.

As previously stated, Hiran forecloses the NLRB’s theory that the

make-whole remedy is equitable. Hiran, 157 F.4th at 728. For the sake of

completeness, however, we address the Board’s arguments in full because

some are unique to this case.

The NLRB avers that its relief is equitable but “[m]oney damages are

. . . the classic form of legal relief.” Mertens v. Hewitt Assocs., 508 U.S. 248,

255 (1993). 21 Damages are “[m]oney claimed by, or ordered to be paid to, a

_____________________

20

“[T]he Thryv remedy is in any event also properly characterized as equitable”;

“Starbucks failed to explain why the Thryv remedy . . . is not properly deemed equitable as

an aspect of the Board’s order to restore the status quo.” Brief of Respondent-Appellee

at 49.

21

See also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710–

17

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person as compensation for loss or injury.” Damages, Black’s Law Dic-

tionary (12th ed. 2024). 22 Consequential damages are “[l]osses that do

not flow directly and immediately from an injurious act but that result indir-

ectly from the act.” Consequential damages, Black’s Law Dictionary

(12th ed. 2024); see 3484, Inc., 137 F.4th at 1126 (Eid, J., dissenting).

Equitable awards, by contrast, are remedies such as injunctions, resti-

tution, and mandamus. See Mertens, 408 U.S. at 255, 256. They exclude

“compensatory or punitive damages” “or other consequential damages (e.g.,

a ruined credit rating).” Id. at 255; United States v. Burke, 504 U.S. 229, 238,

239 (1992). They are measured by “what . . . the taker [has unrighteously]

gained.” Monterey, 526 U.S. at 710; Chauffeurs, 494 U.S. at 570–71 (noting

that restitution and disgorgement are equitable).

The NLRB’s remedy here constitutes consequential damages. See

Hiran, 125 F.4th at 728; see also Starbucks, 125 F.4th at 96–97. Its order—

compensation for “direct or foreseeable pecuniary harms” flowing from

unlawful “discrimination,” is the same as definitions of damages and conse-

quential damages. 23

_____________________

11 (1999) (stating that compensation is legal); Feltner v. Colum. Pictures Television, Inc.,

523 U.S. 340, 352 (1998) (same).

22

See also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003)

(“Compensatory damages are intended to redress the concrete loss that the plaintiff has

suffered” because of “defendant’s wrongful conduct.”); Chauffeurs, Teamsters & Helpers,

Local No. 391 v. Terry, 494 U.S. 558, 570–71 (1990) (stating that damages includes benefits

that victims “would have received” had defendant “properly” performed duty).

23

Damages, Black’s Law Dictionary, supra (“compensation for loss or

injury”); consequential damages, Black’s Law Dictionary, supra (losses “result[ing]

indirectly from the [injurious] act”). The Ninth Circuit disagreed, holding that any com-

pensation was “merely incidental to ‘the effectuation of the policies of the Act’ because

the remedy is primarily ‘designed to . . . eliminat[e] . . . industrial conflict,’ vindicating

‘public, not private rights.’” Macy’s, 127 F.4th at 83. But see id. at 90–91 (Bumatay, J.,

18

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The NLRB’s examples of its new remedy also confirm that it is legal

damages, not equitable relief. The Board believes it is permitted to award

money damages for “interest and late fees on credit cards,” “penalties if she

must make early withdrawals from her retirement account,” the loss of “her

car or her home[] if she is unable to make loan or mortgage payments,”

“increased transportation or childcare costs,” “medical expenses, [and]

credit card debt.” Thryv, 2022 WL 17974951, at *15. “That list looks like

something out of a torts treatise. Each of those examples is a quintessential

basis for compensatory or consequential damages.” 24

The NLRB all but admits that its remedy is compensatory. 25 Indeed,

before creating the new remedy, the NLRB asked parties “whether [it]

should . . . in all pending and future cases [award] consequential damages[.]”

Id. at *9 n.8. It conveniently claims now that this remedy isn’t consequential

damages.

The Board cannot escape that classification by asserting that its rem-

edy has an “equitable purpose” of “undo[ing] . . . coercive effects of unfair

labor practices.” Whether a remedy is permissible doesn’t depend on magic

words that the NLRB incants. 26 We ask whether the “remedy [is] tradi-

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dissenting).

24

3484, Inc., 137 F.4th at 1125 (Eid, J., dissenting) (noting that damages include

“medical expenses and lost earnings,” “transportation and travel expenses, costs of do-

mestic help” (citing, e.g., Restatement (Third) Torts §§ 4, 19).

25

Compare Brief of Respondent-Appellee at 50 (“Thryv relief . . . effectuates the

Act’s policies by restoring the status quo”), and Thryv, 2022 WL 17974951, at *14 (de-

signed to “compensat[e]”), with Restatement (Second) Torts § 903, cmt. A

(“compensatory damages . . . place him in a position substantially equivalent in a pecuniary

way to that which he would have occupied had no tort been committed”).

26

See 3484, Inc., 137 F.4th at 1125, 1126 (Eid, J., dissenting in part) (characteriza-

tion “little more than window dressing” that “does not change the tort-like legal nature of

the remedy”); Macy’s, 127 F.4th at 91 (Bumatay, J., dissenting) (clever wording “doesn’t

19

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tionally viewed as ‘equitable,’ such as injunction or restitution.” Mertens,

508 U.S. at 255. We also examine the “the considerations that determine the

availability” and size of the remedy. See SEC v. Jarkesy, 603 U.S. 109, 123–

25 (2024). The criteria all depend on compensating the employee for injury,

which shows that the remedy is legal. 27

Furthermore, the Board overreads Jarkesy. Under its interpretation,

“restoring the status quo” has a capacious scope. The NLRB states that the

consequential damages remedy is consistent with longstanding Supreme

Court precedent because it is not designed to punish bad actors but instead

to implement the statutory principles of rectifying the harms actually in-

curred by the unfair labor practices and restoring the victims to where they

would have been but for the unlawful conduct. Under the proposed standard,

there would be no reason for compensatory damages, the aforementioned

classic example of legal relief, ever to be considered anything but equitable

relief. 28

That misuse of Jarkesy stems from a fundamental misunderstanding

of the scope of the Supreme Court’s opinion. In Jarkesy, the Court stated

that the determination between whether a monetary remedy is legal is “if it

is designed to punish or deter the wrongdoer, or, on the other hand, solely to

‘restore the status quo.’” Jarkesy, 603 U.S. at 123. The Board would have

_____________________

change [the remedy’s] legal nature—it’s still consequential damages”); Republic Steel,

311 U.S. at 11; Mertens, 508 U.S. at 255 (rejecting party’s “equitable” classification of

“monetary relief for all losses . . . a result of the alleged breach.”).

27

See Hiran, 125 F.4th at 728 (“Because the Board’s remedy aims to redress con-

crete losses to the Employees wholly apart from backpay and pay-related costs, it covers

harms typically dealt with in tort suits for compensatory damages, and it operates as a com-

pensatory damages order.”).

28

See id. (“If the Board were correct, then all instances of compensatory damages

could qualify as an equitable remedy.”).

20

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us understand restoring the status quo to include compensatory and conse-

quential damages, but the Court required not just that the policy be designed

to restore the status quo, but that it be designed “solely to ‘restore the status

quo.’’ Id.

Those instances in which the court has found that a remedy maintains

the status quo involve remedies such as restitution or disgorgement, or in

other words removing improper gains from the unjustly enriched party and

returning it to a rightful source. 29 The Court’s precedents demonstrate that

the scope of restoration to the status quo is primarily concerned with the

return of money unjustly taken, not making the defendant whole.

That contrast is also driven home by the examples that the Court

provides in Jarkesy as to the scope of legal and equitable relief. 30 It would be

an erroneous extension of precedent to capture a consequential-damages

award under the banner of equity based on the Board’s acontextual reading

of Jarkesy, as consequential damages do not restore the status quo.

Lastly, contrary to the NLRB’s assertion, its remedy is not equitable

as “incidental or intertwined with injunctive relief.” 31 The potential dam-

ages are limited only by “the Board’s imagination.” 32

_____________________

29

See Liu v. SEC, 591 U.S. 71, 80 (2020) (“Decisions from this Court confirm that

a remedy tethered to a wrongdoer’s net unlawful profits, whatever the name, has been a

mainstay of equity courts.”); see also Tull v. United States, 481 U.S. 412, 424 (1987)

(“Restitution is limited to ‘restoring the status quo and ordering the return of that which

rightfully belongs to the purchaser or tenant.’”).

30

See Jarkesy, 603 U.S. at 123 (“[W]hile courts of equity could order a defendant

to return unjustly obtained funds, only courts of law issued monetary penalties to ‘punish

culpable individuals.’”).

31

Chauffeurs, 494 U.S. at 571; Tull v. United States, 481 U.S. 412, 424–25 (1987)

(finding a $22 million penalty not “incidental” where “modest equitable relief.”).

32

Macy’s, 127 F.4th at 90–91 (Bumatay, J., dissenting) (observing that the NLRB

21

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Accordingly, the NLRB exceeded its authority by awarding these con-

sequential damages, and we grant Harvard Maintenance’s request for relief

from the damages directive, vacating the portion of the order that awards

“direct and foreseeable pecuniary harms, suffered as a result of the discrim-

ination against [Cruz].”

V.

Lastly, Harvard Maintenance filed a Federal Rules of Appellate Proce-

dure Rule 28(j) letter highlighting Space Exploration Technologies Corp. v.

NLRB, 151 F.4th 761 (5th Cir. 2025). Harvard Maintenance renewed an

argument made in a footnote of its opening brief, claiming that it should pre-

vail because the Board and ALJs exercise core executive functions and are

unconstitutionally insulated from removal. Because the company failed to

explain, anywhere in its briefing, how the unconstitutional insulation of either

party caused compensable harm, there are no grounds on which it can be

granted relief.

In Collins v. Yellen, 594 U.S. 220, 257 (2021), the Court rejected an

argument that the mere fact that an officer exercising executive authority was

unconstitutionally isolated rendered that officer’s acts void and without ef-

fect. 33 The Court did, however, still recognize that a claim for retrospective

relief can proceed if there was “compensable harm” inflicted. Id. at 259. As

previously stated, Harvard Maintenance provides no arguments as to com-

pensable harm and thus has failed to demonstrate that there is sufficient

_____________________

has claimed authority to award, e.g., “expenses resulting from a change in immigration

status”).

33

“Although the statute unconstitutionally limited the President’s authority to

remove the confirmed Directors, there was no constitutional defect in the statutorily pre-

scribed method of appointment to that office. As a result, there is no reason to regard any

of the actions taken . . . as void.”

22

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injury to justify relief.

* * * * *

In sum, Harvard Maintenance’s petition for review is GRANTED as

to the award of consequential damages and DENIED in respect to the

NLRB’s findings of coercive statements and unlawful discharge. The

Board’s cross-application for enforcement regarding the coercive statements

and discharge is GRANTED. Its cross-application is DENIED insofar as

the order awards consequential damages.

23

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James L. Dennis, Circuit Judge, concurring in part and dissenting in part:

We lack jurisdiction to consider the employer’s challenge to the

Thryv 1 remedy. All agree that the employer never raised a challenge to the

remedy before the Board. Section 10(e) of the National Labor Relations Act

therefore strips us of jurisdiction to consider this belated challenge. 2

The majority nevertheless invokes the “futility exception,”

principally on the ground that the Board “considered[] and rejected[]

dissenting board member Kaplan’s position that the make-whole remedy was

unlawful.” Ante, at 14. Nothing in the record supports that assertion.

The majority’s futility analysis is otherwise notably lacking. It

essentially asserts, in the alternative, that arguing before the Board would

have been futile because, well, it would have been futile. That kind of

“because I say so” reasoning will not suffice. Our precedent applies the

futility exception sparingly. Compare NLRB v. Robin Am. Corp., 667 F.2d

1170, 1171 (5th Cir. 1982) (futility satisfied when a controlling doctrine was

only recently overruled), with D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 351

n.5 (5th Cir. 2013) (no extraordinary circumstances where legal arguments

_____________________

1

372 NLRB No. 22, slip op. at 1 (Dec. 13, 2022), order vacated in part on other

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

2

Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665 (1982) (“[T]he Court

of Appeals was without jurisdiction to consider that question. The issue was not raised

during the proceedings before the Board . . . . Thus, judicial review is barred by § 10(e) of

the Act.”); see also Pub. Serv. Co. of N.M. v. NLRB, 692 F.3d 1068, 1076–77 (10th Cir. 2012)

(Gorsuch, J.) (“[W]e are confident that § 160(e) is a jurisdictional limit on this court’s

authority, just as . . . Woelke said it was.”); Quickway Transp., Inc. v. NLRB, 117 F.4th 789,

818 (6th Cir. 2024), cert. denied, 145 S.Ct. 1427 (2025) (Mem.) (“We join our sister circuits

in determining that § 10(e) creates a jurisdictional rule. Ruling otherwise would create a

circuit split where none currently exists.” (citations omitted)).

24

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“were available . . . from the outset”). The majority offers no reasoned basis

for invoking the exception here.

On the merits, principles of judicial restraint independently counsel

against the majority’s extended discussion of the Thryv remedy. The issue is

no longer res nova in this circuit. See Hiran Mgmt., Inc. v. NLRB, 157 F.4th

719, 722 (5th Cir. 2025) (deepening a circuit split). I disagree with Hiran’s

conclusion, but we are bound by it under our rule of orderliness. That binding

precedent alone disposes of the issue. The majority’s lengthy treatment adds

nothing necessary to the judgment.

I respectfully concur in part and dissent in part.

25