The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2026 Decided August 21, 2026
No. 24-1384
PREFERRED BUILDING SERVICES, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 87,
INTERVENOR
Consolidated with 25-1042
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Tyler M. Paetkau argued the cause and filed the briefs for
petitioner.
Joel A. Heller, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
2
Crystal S. Carey, General Counsel, Ruth E. Burdick, Deputy
Associate General Counsel, Meredith L. Jason, Assistant
General Counsel, and Elizabeth A. Heaney, Supervisory
Attorney.
Corinne Johnson argued the cause for respondent-
intervenor. With her on the brief were Stacey Leyton and John
D’Elia. Scott A. Kronland and Steven Ury entered
appearances.
Before: MILLETT, PILLARD, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Twelve years ago, a group of
janitors staged a series of pickets to protest their poor working
conditions at Preferred Building Services, Inc. (“Preferred”)
and Ortiz Janitorial Services (“Ortiz”). A local union assisted
the janitors’ protests. In response, Preferred and Ortiz fired
multiple employees who had picketed.
The union filed a charge with the National Labor Relations
Board, and the Board’s General Counsel issued a complaint
alleging that Preferred and Ortiz had committed a variety of
unfair labor practices proscribed by the National Labor
Relations Act. Before an administrative law judge (“ALJ”),
Preferred and Ortiz defended on the ground that the employees
themselves had violated the Act by engaging in unlawful
secondary and recognitional picketing. The administrative law
judge ruled in favor of the General Counsel, but the Board
reversed, holding that the employees had engaged in unlawful
secondary picketing, in violation of 29 U.S.C. § 158(b)(4).
3
The Ninth Circuit granted the union’s petition for review.
That court held that the Board lacked substantial evidence to
support its finding of secondary picketing.
On remand, Preferred argued that the ALJ had erroneously
prevented it from presenting evidence to support its secondary-
picketing defense, and it proffered evidence of an additional
picket that the ALJ had not considered. The Board took the
evidentiary proffer as true and determined that the new
evidence did nothing to substantiate the secondary-picketing
defense. The Board also rejected the recognitional-picketing
defense, held that Preferred and Ortiz had violated the Act, and
ordered a variety of remedies.
Preferred petitioned for review but Ortiz did not. The
Board cross-petitioned for enforcement. We deny Preferred’s
petition and grant the Board’s cross-petition.
I
A
Section 7 of the National Labor Relations Act (“Act”)
guarantees employees the right “to engage in * * * concerted
activities for the purpose of collective bargaining[.]” 29 U.S.C.
§ 157. Section 8 of the Act protects those rights against the
“unfair labor practice[s]” of both employers and labor
organizations. Id. § 158(a)–(b). Unfair labor practices include
interfering with an employee’s exercise of her rights under
Section 7, id. § 158(a)(1), and discharging an employee due to
her participation in a labor organization, id. § 158(a)(3).
Picketing generally qualifies as a protected concerted
activity. See United Steelworkers of America, AFL-CIO v.
NLRB, 376 U.S. 492, 499 (1964); Washington Serv.
4
Contractors Coalition v. District of Columbia, 54 F.3d 811,
816 (D.C. Cir. 1995). This case involves two exceptions to that
rule.
First, a labor organization’s picketing violates the Act if it
(1) “threaten[s], coerce[s], or restrain[s]” a neutral third party,
29 U.S.C. § 158(b)(4)(ii), with (2) the object of forcing that
neutral party to cease doing business with the employer, which
is referred to as the “primary employer,” id. § 158(b)(4)(ii)(B).
When picketing takes place at a site where both the primary
employer and a neutral “secondary” business operate, the
Board applies its test under Sailors Union of the Pacific (Moore
Dry Dock), 92 NLRB 547 (1950), to distinguish between
lawful “primary” picketing and unlawful “secondary”
picketing, id. at 549.
Moore Dry Dock sets out four factors that, when satisfied,
generate a presumption that picketing at the secondary
business’s premises was lawful. Moore Dry Dock, 92 NLRB
at 549; see Local 560, Int’l Brotherhood of Teamsters, 360
NLRB 1067, 1067 (2014). First, the picketing must be “strictly
limited to times when” the secondary business and primary
employer share a work site. Moore Dry Dock, 92 NLRB at
549; see District 29, United Mine Workers of America v. NLRB,
977 F.2d 1470, 1471 n.2 (D.C. Cir. 1992). Second, “at the time
of the picketing[,] the primary employer [must be] engaged in
its normal business” at the picketed location. Moore Dry Dock,
92 NLRB at 549. Third, the picketing must take place
“reasonably close” to the shared work site. Id. Fourth, “the
picketing [must] disclose[] clearly that the dispute is with the
primary employer.” Id. Even when all four factors are
satisfied, Board precedent allows the employer to rebut the
presumption by presenting independent evidence of an
impermissible secondary object of the picketing. Local 560,
Int’l Brotherhood of Teamsters, 360 NLRB at 1067–1068.
5
Second, the Act proscribes picketing with an
organizational or recognitional object when a union
representation petition has not been “filed within a reasonable
period of time not to exceed thirty days from the
commencement of such picketing[.]” 29 U.S.C.
§ 158(b)(7)(C). Recognitional picketing aims to “forc[e] or
requir[e] an employer to recognize or bargain with a labor
organization as the representative of [its] employees[.]” Id.
§ 158(b)(7). Organizational picketing, on the other hand, seeks
to “forc[e] or requir[e] the employees of an employer to accept
or select such labor organization as their collective bargaining
representative[.]” Id. Recognitional or organizational
picketing is not an unfair labor practice when the “labor
organization is currently certified as the representative of [the]
employees[,]” id., or when the picketing has “the purpose of
truthfully advising the public * * * that an employer does not
employ members of, or have a contract with, a labor
organization,” id. § 158(b)(7)(C) (the “publicity proviso”).
B
Preferred Building Services provides janitorial services in
the San Francisco Bay area. Over a decade ago, Preferred
subcontracted with Ortiz Janitorial Services to clean several
commercial office buildings in San Francisco, including 55
Hawthorne Street, 631 Howard Street, and One Kearny. A
building management company called Harvest Properties
managed 55 Hawthorne and 631 Howard.
In 2014, several janitors who worked for Preferred and
Ortiz sought help from a local union, Service Employees
International Union Local 87. The employees expressed
concerns about poor working conditions, low pay, and sexual
6
harassment. At the Union president’s suggestion, the
employees decided to picket to air their grievances.
On October 29, 2014, the employees picketed in front of
55 Hawthorne’s main entrance. They walked in a circle on the
sidewalk, carrying signs and chanting statements including
“Up with the union, down with exploitation” and “We want
justice. When? Now.” J.A. 6 (Board Suppl. Decision). The
signs bore messages that identified Preferred as the target of
the workers’ concerns, such as “Preferred Building Services
unfair” and “We Prefer no more sexual harassment.” J.A. 6
(formatting modified). The signs carried the Union’s logo, and
they stated in small print: “This is NOT a strike. It is an
informational picket line. We are NOT calling for a boycott of
this building. We are in a labor dispute with the cleaning
contractor at this building.” J.A. 6 n.6; J.A. 131 (ALJ
Decision).
The picketers also handed out pamphlets that “identified
the janitors’ employer as Preferred and explained that they
cleaned the offices of KGO Radio at 55 Hawthorne.” J.A. 6.
The pamphlets indicated that the employees were “calling on
KGO [R]adio to take corporate responsibility in ensuring that
their janitors receive higher wages” and requested that
passersby “[j]oin [them] for a picket line outside the offices of
KGO [R]adio.” J.A. 131.
In the days following the picket, Rafael Ortiz, the founder
of Ortiz Janitorial Services, lashed out at the participating
employees. Among other things, he demanded that two of the
employees provide documentation proving that they were
legally in the United States and authorized to work. J.A. 7. Mr.
Ortiz threatened another employee “that she would not work
anymore because she attended the picket.” J.A. 7. And he
informed another employee that “she would no longer be able
7
to clean certain offices * * * because ‘[Mr. Ortiz] was upset’
by the picketing.” J.A. 7.
On November 19th, the employees participated in a second
picket outside 55 Hawthorne that featured similar signs,
leaflets, and chants. Later that day, Preferred’s executive vice
president terminated its cleaning services contract with Harvest
Properties for 55 Hawthorne and 631 Howard, and Preferred’s
subcontract with Ortiz.
That evening, Mr. Ortiz fired two of the picketing
employees. In mid-December, as Preferred and Ortiz
concluded their contracts to provide janitorial services at 55
Hawthorne and 631 Howard, Mr. Ortiz terminated several
additional employees.
On December 18th, a third picket took place, this time
outside of One Kearny. J.A. 7. The picketers distributed a flyer
with some different text: “We have picketed outside the offices
of KGO [R]adio, which we clean[.] * * * We are calling on
tenants and clients to tell Preferred Building Service[s] to listen
t[o] our demands[.] * * * We are demanding $15 per hour, a
full 8-hour day[,] and the right to organize without retaliation.”
J.A. 145 (ALJ Decision); see J.A. 115 (Board Initial Decision)
(affirming “the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order”).
C
In April 2015, the Union filed a charge with the National
Labor Relations Board alleging that Preferred and Ortiz had
violated the National Labor Relations Act. After investigating,
the Board’s General Counsel issued a complaint alleging that
Preferred and Ortiz had committed unfair labor practices by
interfering with their employees’ rights to act collectively, 29
8
U.S.C. § 158(a)(1), and discharging employees in retaliation
for picketing, id. § 158(a)(3).
At an evidentiary hearing before an administrative law
judge, Preferred and Ortiz raised several defenses. Of
relevance here, they argued that the employees’ picketing was
unlawful because it (1) had an impermissible secondary object,
in violation of 29 U.S.C. § 158(b)(4), and (2) was
organizational or recognitional, in violation of 29 U.S.C.
§ 158(b)(7). In the middle of the hearing, the ALJ ruled that
the employers could not present evidence to support those
defenses, but she allowed them to make offers of proof.
The ALJ ultimately held that Preferred and Ortiz,
operating as joint employers, had violated the Act by, among
other things, discharging the janitorial employees in retaliation
for their picketing. The ALJ rejected the employers’ secondary
picketing and organizational/recognitional picketing defenses.
Although the ALJ found that the picketing was coercive, she
held that it did not have an impermissible secondary object.
J.A. 132. Nor did she discern any prohibited recognitional or
organizational object. J.A. 134. The ALJ ordered a variety of
remedies, including that the employees be reinstated with
backpay. J.A. 149–150.
The Board reversed. The Board held that the ALJ had
erred in refusing to allow Preferred and Ortiz to submit
evidence concerning their secondary-picketing defense. J.A.
117. Despite that error, the Board concluded that the evidence
in the record was sufficient to establish that the picketing had
an impermissible secondary object: to convince neutral
businesses Harvest Properties and KGO Radio to stop working
with Preferred. J.A. 118.
9
The Union petitioned for review in the Ninth Circuit.
Service Emps. Int’l Union Loc. 87 v. NLRB, 995 F.3d 1032,
1038 (9th Cir. 2021) (“Preferred I”). That court granted the
petition, holding that the Board’s finding of a prohibited
secondary object was not supported by substantial evidence.
Id. at 1039.1 To start, the court held that the picketing was
presumptively lawful under Moore Dry Dock. Id. at 1040.
Weighing “the evidence as a whole[,]” the court held that “[t]he
combination of the picket signs and the leaflets, considered in
their entirety, clearly disclosed that the employees’ dispute was
with Preferred and not with any of the building’s tenants.” Id.
The court next held that no evidence rebutted that presumption,
and that reports that the building’s tenants were “upset” by the
picketing did not reveal an impermissible secondary object.
See id. at 1041–1044. Accordingly, the court remanded to the
Board.
On remand, Preferred, the Union, and the General Counsel
submitted position statements to the Board. Ortiz did not
participate in the remand proceeding. The Board then affirmed
the ALJ’s findings and conclusions that Preferred and Ortiz
were acting as joint employers, that their affirmative defenses
were meritless, and that they had violated the employees’ rights
under Sections 8(a)(1) and (a)(3), 29 U.S.C. § 158(a)(1), (a)(3).
J.A. 6.
Three portions of the Board’s decision are relevant to this
appeal.
First, the Board rejected Preferred’s argument that the
ALJ’s exclusion of its proffered defensive evidence had
prejudiced its secondary picketing defense. In its position
1
The Ninth Circuit did not reach the question of whether the
picketing was coercive. See Preferred I, 995 F.3d at 1039.
10
statement, Preferred explained that it would have provided
evidence about a December 24th protest at a fourth building,
Millennium Towers, in which the Union and the janitorial
employees “forcibly gained access to the lobby, struggled with
security[,] * * * and threw coal into the lobby and at the
security team.” J.A. 10 (quoting J.A. 216 (Preferred Position
Statement)). Preferred argued that this evidence would
establish an impermissible secondary object under Service
Employees International Union Local 525 (General
Maintenance), 329 NLRB 638 (1999), in which a janitorial
union had stormed into building lobbies and directly targeted
the building’s tenants. See J.A. 216.
The Board accepted Preferred’s proffered evidence as true
and concluded that it did not establish a prohibited secondary
purpose. J.A. 10. Unlike in General Maintenance, where the
protests had occurred outside of the janitor’s normal hours,
Preferred did not claim that it was not present at the
Millennium Towers building at the time of the December 24th
protest. See J.A. 10 n.16. And even if the December 24th
protest did have a prohibited secondary object, the Board
reasoned, “the conduct on that date would not warrant
concluding that [the] unlawful * * * object existed from the
start of the picketing” back in October when the unfair labor
practices began. J.A. 10 n.16.
Second, the Board rejected the recognitional-picketing
defense. J.A. 11. The Board credited the ALJ’s finding that
“there [was] no evidence of a prohibited object, either by action
or statement.” J.A. 11. In particular, “the picket signs and
leaflets were directed to the public rather than to employees”;
“there were no requests that employees join the Union made in
connection with the picketing”; “there was no evidence of a
contemporaneous demand for recognition”; and there was no
evidence “that a contract was tendered at the time of picketing,
11
or that cessation of picketing was conditioned on signing a
contract.” J.A. 11.
Third, the Board amended the ALJ’s remedy. Invoking
Thryv, Inc., 372 NLRB No. 22, 2022 WL 17974951 (Dec. 13,
2022), the Board ordered Preferred and Ortiz to:
compensate the[] [discharged] employees for any
other direct or foreseeable pecuniary harms incurred
as a result of the unlawful conduct, including
reasonable search-for-work and interim employment
expenses, if any, regardless of whether these expenses
exceed interim earnings.
J.A. 20.
Preferred petitioned for review in this court, and the Board
cross-petitioned for enforcement of its order. We granted the
Board’s motion for default judgment against Ortiz, which
neither petitioned for review nor responded to the Board’s
cross-petition for enforcement, see FED. R. APP. P. 15(b)(2),
and consolidated the cases.
II
This court has jurisdiction over Preferred’s petition for
review under 29 U.S.C. § 160(f). We have jurisdiction over the
Board’s cross-petition for enforcement under 29 U.S.C.
§ 160(e).
Preferred presses three arguments in its petition. First, it
contends that the Board erred by failing to allow it to present
evidence before the ALJ on its defenses. Second, it argues that
the Board’s holding that the employees’ picketing was not
recognitional or organizational was not supported by
12
substantial evidence. Third, Preferred objects to the Board’s
Thryv remedy as unconstitutional and in excess of its statutory
authority.
Because none of these arguments has merit, we deny
Preferred’s petition and grant the Board’s cross-petition for
enforcement.
A
Preferred insists that “[t]he Board erred, as a matter of law,
by preventing Preferred from presenting evidence on its
statutory affirmative defenses” to an ALJ. Preferred Opening
Br. 23. Not so—the Board did not err, and the ruling did not
prejudice Preferred regardless.
We review the Board’s evidentiary rulings for abuse of
discretion. Quicken Loans, Inc. v. NLRB, 830 F.3d 542, 551
(D.C. Cir. 2016). Absent a serious procedural defect, like lack
of notice, we grant relief only if the abuse of discretion “unduly
prejudiced the complaining party[,]” meaning the “admission
of the excluded evidence would have compelled or persuaded
to a contrary result.” Id. (formatting modified); see NLRB v.
Blake Constr. Co., 663 F.2d 272, 279 (D.C. Cir. 1981).
Preferred has not pointed to any procedural defect at all,
let alone one warranting remand without a showing of
prejudice. Although Preferred tries to frame its challenge in
broad terms, its disagreement with the Board is actually
narrow. Preferred’s claim is simply that, if given the chance, it
would have presented evidence of a fourth picket at
Millennium Towers during which “the [Union] and the alleged
discriminatees forcibly gained access to the lobby, struggled
with security (resulting in injuries to members of the security
team) and threw coal into the lobby and at the security team.”
13
Preferred Opening Br. 28–29. It insists that this evidence
would have established secondary picketing under General
Maintenance, which the Ninth Circuit had distinguished on the
record before it, see Preferred I, 995 F.3d at 1044.2
The Board, however, did not refuse to hear and consider
that evidence. Quite the opposite: It assumed the truth of
Preferred’s evidence and then concluded that such evidence
would not alter the Ninth Circuit’s holding that no secondary
picketing had occurred. J.A. 10 n.16.
As the Board explained, the facts of General Maintenance
and this case are materially different. In General Maintenance,
the time of the picket was outside of the “janitors’ normal
hours[.]” 329 NLRB at 680; J.A. 10 n.16. Here, Preferred has
“not claim[ed] that Preferred was not present at the time of the
December 24 protest.” J.A. 10 n.16. In General Maintenance,
the employer introduced evidence that the picketing was aimed
at a neutral third party: a public statement from one of the
union organizers that the “tenants [we]re upset by” the trashing,
and that “[m]any * * * sa[id] to their building owner, we want
this settled.” 329 NLRB at 680; see J.A. 10 n.16. Preferred, in
contrast, proffered no evidence at all that “the demonstration
was aimed at a neutral third party.” J.A. 10 n.16.
Instead of engaging with the Board’s reasoning, Preferred
insists that its proffer would plug a gap in the record that the
Ninth Circuit identified. See Preferred Opening Br. 29 (“This
is precisely the type of evidence of explicit, direct targeting of
2
Because Preferred has not proffered any evidence that, had it
been admitted, might have established an organizational or
recognitional object, Preferred has forfeited any prejudice argument
as to that defense.
14
third parties that the Court of Appeals concluded was missing
from the incomplete factual record[.]”).
Not at all. In the decision on review before the Ninth
Circuit, the Board originally had found secondary picketing
under General Maintenance solely by relying on the
“employees’ reports that [55 Hawthorne’s] tenants were
‘upset’ about the picketing[.]” Preferred I, 995 F.3d at 1044.
The Ninth Circuit found that evidence irrelevant for two
reasons. First, unlike in General Maintenance, where “the
union directly targeted the building’s tenants and owners with
its coercive activity[,]” the Union here had “never engaged in
coercive conduct targeting Harvest or any of the building’s
tenants.” Id. (emphasis added). Second, “while in General
Maintenance the tenants were upset about the union’s trashing
of their buildings, here the tenants were ‘upset by what they
had learned’ from the demonstrations—presumably, that
Preferred was not treating its employees well.” Id.
Preferred’s proffered evidence would not cure either
deficiency. Simply pointing out that both the protest in
General Maintenance and the protest here included a “trashing
incident” in a secondary party’s lobby is not enough. Preferred
needed to proffer evidence that the conduct was aimed at a
neutral third party. Preferred has done nothing to connect the
picket at Millennium Towers back to the statement that tenants
at 55 Hawthorne were upset.
Trying a different tack, Preferred summarizes some other
cases in which this court held that the Board’s serious
procedural errors violated due process. None of that precedent
applies here. The Board did not deprive Preferred of notice.
Contrast Blake Constr. Co., 663 F.2d at 279 (holding that the
Board denied an employer due process by finding “violations
[that] were neither alleged in the complaint nor litigated at the
15
hearing”); Bruce Packing Co. v. NLRB, 795 F.3d 18, 24 (D.C.
Cir. 2015) (setting aside the Board’s decision to allow a late
amendment to the complaint because the employer “lacked
both actual notice of the new charge during the hearing and the
opportunity to fairly litigate the issue”).
Nor did the Board completely refuse to consider
Preferred’s defense. Contrast United Food & Com. Workers
Int’l Union Loc. No. 576 v. NLRB, 675 F.2d 346, 356 (D.C. Cir.
1982) (faulting “[t]he Board’s refusal to hear the Union’s
defense”). To the contrary, the Board listened to Preferred’s
arguments, accepted Preferred’s evidence as true, reasonably
analyzed the defenses, and rejected them on their merits.
Having had its affirmative defenses fully considered by the
Board and reasonably rejected, Preferred has nothing left to
complain about.3
Anyhow, Preferred has not explained how evidence of a
picket on December 24th could supply a defense to its unfair
labor practices, all of which occurred before that date. See J.A.
139 (October 31st reduction in an employee’s hours); J.A. 142–
143 (November 19th firing of two employees); J.A. 144–145
(November 19th cancellation of Harvest Properties contract).4
3
In its reply brief, Preferred claims that this court has
“recognized that denial of the opportunity to present relevant and
non-cumulative evidence is virtually always prejudicial.” Preferred
Reply Br. 2. But the case it cites, Ozark Automotive Distributors,
Inc. v. NLRB, 779 F.3d 576 (D.C. Cir. 2015), remanded to the Board
only after finding prejudice, see id. at 585–586.
4
There are three employees whose exact firing dates do not
appear in the record. See J.A. 7 n.9. But Preferred has not argued
that any of the three were discharged after or based on the
Millennium Towers picket. The Board instead found those
16
B
Preferred next argues that the Board’s finding that the
picketing was not recognitional or organizational was
unsupported by substantial evidence.
The object of picketing is a “question of fact,” so the
Board’s finding “must be upheld * * * if it is supported by
substantial evidence.” General Serv. Emps. Union Loc. No. 73
v. NLRB, 578 F.2d 361, 373 (D.C. Cir. 1978); see also 29
U.S.C. § 160(e) (“The findings of the Board with respect to
questions of fact if supported by substantial evidence on the
record considered as a whole shall be conclusive.”).
“Substantial evidence is lacking only when, considering the
record as a whole, no reasonable factfinder could have made
the same finding as the agency.” Leggett & Platt, Inc. v. NLRB,
988 F.3d 487, 496 (D.C. Cir. 2021).
Preferred has failed to make that showing.
The Board thoroughly examined the totality of
circumstances surrounding the picketing and did not find any
recognitional or organizational object. It reasonably adopted
the ALJ’s factual findings that (i) “the picket signs and leaflets
were directed to the public rather than to employees[,]” (ii)
“there were no requests that employees join the Union made in
connection with the picketing[,]” (iii) “there was no evidence
of a contemporaneous demand for recognition,” (iv) “there was
no evidence * * * that a contract was tendered at the time of
discharges to be unfair labor practices because they flowed from
Preferred’s illegal “cancellation of the contract and subcontract for
janitorial services at 55 Hawthorne Street/631 Howard Street[,]”
which occurred on November 19th. J.A. 18; see J.A. 17–18.
17
picketing,” and (v) “there was no evidence * * * that cessation
of picketing was conditioned on signing a contract.” J.A. 11.5
The Board then reasonably explained why the stray facts
pressed by Preferred did not change the result.
First, “the context surrounding th[e] chants” of “up with
the Union; down with exploitation” and “we want a union, not
corruption” “ma[d]e it clear that the employees (and the Union)
did not have an organizational object.” J.A. 11 n.19
(formatting modified). At the first picket, for instance, the
employees “mentioned wanting justice, handed out flyers in
which they presented arguments for a minimum wage increase,
and noted that * * * [they] were in a ‘labor dispute with the
cleaning contractor at th[e] building.’” J.A. 11 n.19. At the
second picket, they distributed flyers that “mentioned ‘abusive
and unsafe working conditions and sexual harassment[.]’” J.A.
11 n.19.
Second, the Board found, based on substantial evidence,
that an employee’s statement that “negotiations” were
successful “only demonstrate[d] that the Union was involved
in assisting the employees while they negotiated to have their
issues addressed, not that they were negotiating for
organizational purposes.” J.A. 11 n.19. As the Board noted,
the employee went on to recount that “the person that we
wanted to leave, it seems has been let go”—indicating that the
“negotiations were not related to organizing, but, rather, to the
employees’ issues with Rafael Ortiz.” J.A. 11 n.19.
5
The Board held that the picketing fell within Section
8(b)(7)(C)’s publicity proviso because “the purpose of the picketing
was to inform the public and protest employees’ working
conditions[.]” J.A. 11. Because substantial evidence supported the
Board’s conclusion that the picketing lacked a recognitional or
organizational object, we do not reach the publicity proviso.
18
Preferred chose not to engage with the Board’s reasoning
in its opening brief. Preferred instead asserts that “[t]he record
does not support the Board’s reading of the facts[,]” but does
not explain why beyond a bare recitation of factual assertions
that the Board rejected. Preferred Opening Br. 36. Because
Preferred has supplied us with no argument that could
undermine the Board’s reasoned analysis, this challenge fails.
See Government of Manitoba v. Bernhardt, 923 F.3d 173, 179
(D.C. Cir. 2019); see also Al-Tamimi v. Adelson, 916 F.3d 1, 6
(D.C. Cir. 2019) (“A party forfeits an argument by failing to
raise it in his opening brief.”).
C
Lastly, Preferred argues that the Board’s Thryv remedy
exceeds its remedial authority under the Act and violates the
Constitution. Preferred also argues that the Board’s
“retroactiv[e] appl[ication]” of the Thryv remedy violates its
due process rights. Preferred Opening Br. 44. In support,
Preferred summarizes out-of-circuit cases, walks through
legislative history, and block-quotes the dissent from Thryv.
Because Preferred did not raise any of these arguments
before the Board, we lack jurisdiction to consider them. Under
Section 10(e) of the Act, “[n]o objection that has not been
urged before the Board * * * shall be considered by the court,
unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances.” 29 U.S.C.
§ 160(e); see Woelke & Romero Framing, Inc. v. NLRB, 456
U.S. 645, 666 (1982) (“[T]he Court of Appeals lacks
jurisdiction to review objections that were not urged before the
Board[.]”).
19
In a footnote in its reply brief, Preferred insists that it
“specifically objected to the Board’s request for Thryv
remedies[,]” but it points only to a single word in a
parenthetical in an otherwise irrelevant filing. Preferred Reply
Br. 9 n.4; see J.A. 333–334 (arguing only that the General
Counsel’s motion to strike was “manifestly hypocritical”
because the General Counsel’s filing sought “(unauthorized)
‘consequential damages’”). Preferred did not say another
word, either in that filing or anywhere else, as to why the
ordered remedies might be unlawful. Putting the word
“unauthorized” in parentheses in one sentence in an unrelated
brief does not satisfy Section 10(e)’s requirement that an
objection be “urged before the Board[,]” 29 U.S.C. § 160(e).
See, e.g., T-Mobile USA, Inc. v. NLRB, 90 F.4th 564, 579 (D.C.
Cir. 2024).6
Because Preferred failed to comply with Section 10(e), this
court can consider its challenge to the Thryv remedy only if
“extraordinary circumstances” excuse its failure. 29 U.S.C.
§ 160(e). None do.
6
Preferred also notes that it objected to the General Counsel’s
request for backpay. See Preferred Reply Br. 9 (citing J.A. 217–221,
which is Preferred’s Position Statement arguing that “the * * *
backpay remedy demanded by the General Counsel * * * is
absolutely outrageous and devoid of any credible support”). But
Preferred has not challenged the award of backpay on appeal, and
objecting to one part of an ordered remedy did not “put the Board on
notice” that Preferred would challenge a completely different aspect
of the remedy on different grounds on appeal. Vermont Info.
Processing, Inc. v. NLRB, 176 F.4th 690, 705 (D.C. Cir. 2026)
(quoting Consolidated Freightways v. NLRB, 669 F.2d 790, 794
(D.C. Cir. 1981)).
20
In its opening brief, Preferred suggests that it “never had
the opportunity” to challenge the Thryv remedy. Preferred
Opening Br. 38 n.8. Preferred is wrong twice over.
First, Preferred readily admits in its reply brief that it had
notice of, and opportunity to respond to, the General Counsel’s
“request for Thryv remedies” in motions practice before the
Board. See Preferred Reply Br. 9 n.4.
Second, even if the Board had imposed the Thryv remedy
sua sponte, Preferred would have been “required to file a
motion for reconsideration to preserve its challenges.” HTH
Corp. v. NLRB, 823 F.3d 668, 673 (D.C. Cir. 2016); see also
Spectrum Health—Kent Cmty. Campus v. NLRB, 647 F.3d 341,
349 (D.C. Cir. 2011) (When “the Board sua sponte decides an
issue * * *, [a party’s] objections will be preserved by a timely
motion to reconsider.”).
Preferred then retreats to arguing that it could not have met
the standard for moving for reconsideration because the Board
ordered the Thryv remedy over a dissent. Preferred Reply Br.
10. In so arguing, Preferred might be taken to suggest that any
challenge to the Thryv remedy would have been futile—a
circumstance we have held may excuse a party’s failure to
preserve an objection. See HTH Corp., 823 F.3d at 674 (“The
patent futility of a reconsideration motion excuses the failure
to object, at least where the Board acts sua sponte.”). But
Preferred overreads the Board’s analysis. The Board merely
asserted that Thryv “remain[ed] valid precedent” “[f]or the
reasons set forth in” a prior Board opinion. J.A. 20 n.42. And
that prior opinion distinguished the Fifth Circuit’s holding in
Thryv, Inc. v. NRLB, 102 F.4th 727 (5th Cir. 2024), as reaching
only “portions of the Board’s underlying unfair labor practice
findings on the merits.” Airgas USA, LLC, 373 NLRB No. 102,
2024 WL 4251820, at *1 n.2 (Sept. 18, 2024). In any event,
21
we have rejected the argument “that the majority’s rejection of
[a] dissenter[’s] points suggests that moving for
reconsideration would have been futile.” HTH Corp., 823 F.3d
at 673. “[A] party may not rely on arguments raised in a dissent
or on a discussion of the relevant issues by the majority to
overcome the [Section] 10(e) bar; the Act requires the party to
raise its challenges itself.” Id.
Preferred did not. So we lack jurisdiction to consider its
remedial arguments.
III
For the foregoing reasons, we deny Preferred’s petition for
review and grant the Board’s cross-petition for enforcement.
So ordered.