Emergency Application — Vermont Information Processing, LLC, Applicant v. National Labor Relations Board

Supreme Court briefSep 9, 2026

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No. 26A

In the

Supreme Court of the United States

VERMONT INFORMATION PROCESSING, LLC,

Applicant,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Emergency A pplication to Stay in the United States Court of A ppeals

for the District of Columbia Circuit

EMERGENCY APPLICATION FOR STAY

Stephen D. Ellis

Counsel of Record

Paul Frank + Collins, PC

P.O. Box 1307

Burlington, VT 05402

(802) 658-2311

sellis@pfclaw.com

Counsel for Vermont Information

Processing, LLC

132466

(800) 274-3321 • (800) 359-6859

PARTIES TO THE PROCEEDING

1. Vermont Information Processing, LLC (formerly Vermont Information

Processing, Inc.) (“VIP”) is the applicant; the petitioner and cross-respondent

in the D.C. Circuit proceeding below; and the respondent before the National

Labor Relations Board.

2. The National Labor Relations Board was the respondent and cross-petitioner

in the D.C. Circuit proceeding below.

3. Christopher Bendel, Gordon Dragoon, Kestrel Swift, and Kaleb Noble were the

Charging Parties before the National Labor Relations Board.

CORPORATE DISCLOSURE STATEMENT

Petitioner Vermont Information Processing, Inc. (VIP) builds software and

hosts data for the beverage industry. Until January 30, 2025, VIP was an employee

owned company, had no parent corporation, and no publicly traded corporation owned

10% or more of its stock. On January 30, 2025, VIP was acquired in a stock sale by

an affiliate of Warburg Pincus, Vamos Bidco, Inc., which in turn is indirectly 100%

owned by Vamos Topco, Inc. VIP has now converted to Vermont Information

Processing LLC, a limited liability company formed in Delaware. Its sole member,

Vamos Bidco, Inc. is not publicly traded, and has no publicly-traded shareholders.

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDING ............................................................................... i

CORPORATE DISCLOSURE STATEMENT ............................................................... ii

TABLE OF AUTHORITIES ......................................................................................... iv

GLOSSARY .................................................................................................................. vii

INTRODUCTION .......................................................................................................... 1

OPINIONS BELOW ...................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 3

The NLRA and the Thryv Remedy .......................................................... 3

II.

Facts and Procedural History .................................................................. 5

REASONS TO GRANT THE APPLICATION .............................................................. 7

There is a Reasonable Probability that this Court Will

Grant Certiorari ....................................................................................... 8

The Preservation Issue .................................................................. 8

The Merits Issue .......................................................................... 12

II.

There is a Fair Prospect that this Court Will Reverse the

D.C. Circuit’s Decision ........................................................................... 14

III.

Absent a Stay, VIP Will Suffer Irreparable Harm ............................... 16

IV.

The Balance of Equities Favors a Stay ................................................. 18

CONCLUSION............................................................................................................. 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases:

3484, Inc. v. NLRB,

137 F.4th 1093 (10th Cir. 2025)........................................................................ 4-5, 13

Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023) .................................................................................................. 17

Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485 (1984) .................................................................................................... 9

Camelot Terrace, Inc. v. NLRB,

824 F.3d 1085 (D.C. Cir. 2016) ........................................................................ 7, 9, 10

Coinbase, Inc. v. Bielski,

599 U.S. 736 (2023) .................................................................................................. 17

Consol. Freightways v. NLRB,

669 F.2d 790 (D.C. Cir. 1981) ...................................................................... 7, 8, 9, 10

Dupree v. Younger,

598 U.S. 729 (2023) .................................................................................................. 11

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) .................................................................................................. 14

Hardy v. Cross,

565 U.S. 65 (2011) ...................................................................................................... 9

Harte-Hanks Communications, Inc. v. Connaughton,

491 U.S. 657 (1989) .................................................................................................... 9

Harvard Maint., Inc. v. NLRB,

165 F.4th 886 (5th Cir. 2026)................................................................................... 11

Hiran Mgmt., Inc. v. NLRB,

157 F.4th 719 (5th Cir. 2025)............................................................................... 4, 12

Holguin-Hernandez v. United States,

589 U.S. 169 (2020) ............................................................................................ 11, 15

Hollingsworth v. Perry,

558 U.S. 183 (2010) .................................................................................................... 8

Int’l Bd. of Teamsters v. NLRB,

No. 23-2081, 2026 WL 1079297 (9th Cir. Apr. 21, 2026), as amended,

2026 WL 1952740 (9th Cir. July 1, 2026) ............................................................... 13

Int’l Bd. of Teamsters v. NLRB,

No. 23-2081, NLRB Pet. Reh’g 4-5 (filed May 28, 2026)......................................... 14

Int’l Union of Operating Eng’rs, Stationary Eng’rs, Loc. 39 v. NLRB,

155 F.4th 1023 (9th Cir. 2025), cert. denied sub nom. Macy’s Inc. v. NLRB,

No. 25-627, 2026 WL 1717973 (U.S. June 15, 2026) .......................................... 4, 12

Lodi Volunteer Ambulance Rescue Squad, Inc., et al.,

374 NLRB No. 26, 2026 WL 266163 (2026) ...................................................... 14, 18

Maryland v. King,

567 U.S. 1301 (2012) ................................................................................................ 15

Mills v. District of Columbia,

571 F.3d 1304 (D.C. Cir. 2009) ................................................................................ 17

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) .................................................................................................. 12

NLRB v. Noel Canning,

573 U.S. 513 (2014) .................................................................................................. 12

NLRB v. Starbucks Corp.,

125 F.4th 78 (3d Cir. 2024) .................................................................................. 4, 12

NLRB v. Starbucks Corp.,

159 F.4th 455 (6th Cir. 2025)................................................................... 4, 10, 11, 12

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941) .................................................................................................... 3

Rostker v. Goldberg,

448 U.S. 1306 (1980) ............................................................................ 1, 8, 12, 14, 15

The Oil Man Corporation d/b/a Enright & Sons, Inc. and Inter. Ass’n

of Sheet Metal, Air, Rain & Transp. Workers, Sheet Metal Workers

Local Union #9,

374 NLRB No. 136, 2026 WL 1831595 (2026) .................................................. 14, 18

Thryv Inc.,

372 NLRB No. 22, 2022 WL 17974951 (Dec. 13, 2022), vacated in part

on other grounds, 102 F.4th 727 (5th Cir. 2024) ......................................... 1-8, 10-18

Times-Picayune Pub. Corp. v. Schulingkamp,

419 U.S. 1301 (1974) ................................................................................................ 15

Trader Joe’s Co. v. NLRB,

167 F.4th 766 (5th Cir. 2026)............................................................................... 5, 13

U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc.,

508 U.S. 439 (1993) .................................................................................................. 12

UAW-CIO v. Russell,

356 U.S. 634 (1958) .................................................................................................... 3

Vermont Information Processing, Inc. v. NLRB,

176 F.4th 690 (D.C. Cir. 2026) ........................................................................... 2, 3, 4

Statutes and Other Authorities:

U.S. Const., amend. VII ................................................................................. 1, 6, 17, 18

28 U.S.C. § 2101(f) ......................................................................................................... 1

29 U.S.C. §§ 151 et seq. ........................................................................................ 3, 4, 10

29 U.S.C. § 160(c) ........................................................................................................... 3

29 U.S.C. § 160(e)........................................................................................................... 6

Macy’s v. NLRB, No. 25-627, Brief for Federal Respondent 12

(U.S. filed April 20, 2026) ............................................................................ 12, 13, 18

Supreme Court Rule 10(a) ......................................................................................... 8, 9

Supreme Court Rule 22 ................................................................................................. 1

Supreme Court Rule 23 ................................................................................................. 1

GLOSSARY

Abbreviation

Definition

ALJ

Administrative Law Judge Arthur Amchan

Act

National Labor Relations Act, 29 U.S.C. §§ 151 et seq

Board

National Labor Relations Board

Board Br.

Board’s 04/02/25 Brief of Respondent

Bendel

Christopher Bendel

Noble

Kaleb Noble

Swift

Kestrel Swift

Dragoon

Gordon Dragoon

NLRA

National Labor Relations Act, 29 U.S.C. §§151 et seq

NLRB

National Labor Relations Board

VIP

Vermont Information Processing LLC

Maj. Op.

Opinion of the Panel Majority in Vt. Information

Processing, Inc., No. 24-1360, slip op. (D.C. Cir. May 26,

2026)

Dissent

Walker, J.’s Dissent in Vt. Information Processing, Inc.,

No. 24-1360, slip op. (D.C. Cir. May 26, 2026)

NLRB Macy’s Br.

Macy’s v. NLRB, No. 25-627, Brief for Federal Respondent

12 (U.S. filed April 20, 2026)

NLRB Opp.

Board’s Opposition to VIP’s Motion to Stay Mandate (D.C.

Cir. Aug. 28, 2026)

Joint Appendix

vii

TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE

UNITED STATES AND CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA

CIRCUIT:

Pursuant to 28 U.S.C. § 2101(f) and Supreme Court Rules 22 and 23, Applicant

Vermont Information Processing, Inc. (“VIP”) respectfully requests an order recalling

and staying the mandate of the United States Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”), pending this Court’s disposition of VIP’s

forthcoming petition for a writ of certiorari. See Rostker v. Goldberg, 448 U.S. 1306,

1308 (1980) (Brennan, J., in chambers); Sup. Ct. R. 22, 23.1

INTRODUCTION

A majority panel of the D.C. Circuit has enforced the so-called “Thryv remedy”

against VIP, a category of NLRB relief that three circuits have held exceeds the

Board’s statutory authority and the Board itself has recently disavowed and

expressed its intent to abandon. A divided panel of the D.C. Circuit declined to

address Thryv’s legality on preservation grounds, despite VIP challenging, verbatim,

Thryv’s “all direct or foreseeable pecuniary harms” remedy language before the

Board. As a result, unless the mandate is recalled and stayed pending the resolution

of VIP’s upcoming petition for certiorari, VIP will be required to submit to a

compliance proceeding in which it must defend against and, potentially, pay that

challenged category of “direct or foreseeable pecuniary harms” which multiple circuits

have found unlawful, the Board itself has disavowed, and which facially violates VIP’s

Seventh Amendment right to a jury trial.

1 This petition solely applies to the D.C. Circuit’s mandate as it concerns Christopher Bendel; VIP does

not object to the mandate issuing as it concerns Kestrel Swift, Gordon Dragoon, and Kaleb Noble.

Contrary to the Board’s characterization in its filings below, VIP does not

merely object to incurring litigation expenses—the impending compliance proceeding

itself is the injury, regardless of its cost or outcome, in light of the unconstitutional

remedy at its core. In a stark and unexplained departure from the D.C. Circuit’s

prevailing preservation standard, the majority panel’s erroneous decision that VIP

had not preserved its challenge to the Thryv remedy has foreclosed VIP from even

arguing this point, exposing it to constitutional injury without even despite VIP’s

explicit challenge to the “direct or foreseeable pecuniary harms” remedy in its

exceptions before the Board.

A recall and temporary stay of the D.C. Circuit’s mandate until this Court can

rule on VIP’s forthcoming petition for certiorari will preserve the status quo and

safeguard VIP against this imminent and irrevocable constitutional harm, while

imposing effectively no countervailing harm on the Board or any other parties in the

interim. Considering the D.C. Circuit’s unexplained departure from the prevailing

preservation standard over a vigorous dissent, the stark circuit divide over the Thryv

remedy, and the Board’s own growing skepticism of the Thryv remedy, VIP

respectfully asks that this Honorable Court recall and stay the D.C. Circuit’s petition

until its petition may be heard.

OPINIONS BELOW

VIP seeks a stay pending appeal of the D.C. Circuit’s judgment and order

entered on June 9, 2026 in Vermont Information Processing, Inc. v. NLRB, adopting

an opinion issued on May 26, 2026. The judgment and order are available at 2026 WL

2333735, and reproduced herein as Exhibit A. The adopted opinion is available at No.

24-1360, 176 F.4th 690 (D.C. Cir. 2026), and reproduced herein as Exhibit B. The

judgment and order upheld a portion of a decision of the National Labor Relations

Board issued on November 5, 2024. The NLRB decision is available at 373 NLRB No.

131, 2024 WL 4707049, and reproduced herein as Exhibit C. The D.C. Circuit entered

an order denying VIP’s motion to stay the issuance of its mandate on September 2,

2026, a copy of which is reproduced herein as Exhibit D.

STATEMENT OF THE CASE

The NLRA and the Thryv Remedy

Section 10(c) of the NLRA provides that, upon finding an unfair labor practice,

the Board shall issue an order requiring the violator “to cease and desist from such

unfair labor practice, and to take such affirmative action including reinstatement of

employees with or without back pay, as will effectuate the policies of [the Act].” 29

U.S.C. § 160(c). Based on this language, the Supreme Court has long held that

Congress “did not establish a general scheme authorizing the Board to award full

compensatory damages for injuries caused by wrongful conduct,” UAW-CIO v.

Russell, 356 U.S. 634, 643 (1958), and that the Board was not created for the

“adjudication of private rights….” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 193

(1941).

In 2022, the Board departed from those limits. In Thryv Inc., the Board

announced that “in all cases in which our standard remedy would include an order

for make-whole relief,” it will order the respondent to compensate affected employees

“for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s

unfair labor practice,” including expenses awarded “regardless of whether these

expenses exceed interim earnings.” 372 NLRB No. 22, 2022 WL 17974951, at *9, *22

(Dec. 13, 2022), vacated in part on other grounds, 102 F.4th 727 (5th Cir. 2024).

The Thryv remedy has been repeatedly challenged, with the reviewing courts

largely skeptical of its validity. The Third Circuit characterized the remedy as

“purport[ing] to grant broad compensatory relief” and held that it exceeds the Board’s

authority under the NLRA. NLRB v. Starbucks Corp., 125 F.4th 78, 95-97 (3d Cir.

2024). The Fifth Circuit agreed, concluding that the remedy “operates as a

compensatory damages order.” Hiran Mgmt., Inc. v. NLRB, 157 F.4th 719, 728 (5th

Cir. 2025). The Sixth Circuit rejected it as well, stating that “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.” NLRB v. Starbucks Corp., 159

F.4th 455, 480 (6th Cir. 2025). Only the Ninth Circuit and, in the proceeding below,

the D.C. Circuit have sustained the remedy, the former only over vigorous dissents,

with six judges dissenting from the denial of en banc review, and the latter only upon

the finding that VIP had not preserved its right to challenge the Thryv remedy. Int’l

Union of Operating Eng’rs, Stationary Eng’rs, Loc. 39 v. NLRB, 155 F.4th 1023, 1048

(9th Cir. 2025), cert. denied sub nom. Macy’s Inc. v. NLRB, No. 25-627, 2026 WL

1717973 (U.S. June 15, 2026); Vermont Information Processing, Inc. v. NLRB, 176

F.4th 690, 703-707 (D.C. Cir. 2026). Individual judges of two other circuits have

similarly concluded that Thryv remedies are unlawful legal damages. See 3484, Inc.

v. NLRB, 137 F.4th 1093, 1116, 1121-27 (10th Cir. 2025) (Eid, J., concurring in part

and dissenting in part); Trader Joe’s Co. v. NLRB, 167 F.4th 766, 801-02 (5th Cir.

2026) (Oldham, J., dissenting).

II.

Facts and Procedural History

VIP is a Vermont software company serving the beverage industry. In

February 2022, four VIP software engineers—Christopher Bendel, Kaleb Noble,

Gordon Dragoon, and Kestrel Swift—created and circulated a spreadsheet in which

employees could share salary information. Maj. Op. 3-4. VIP terminated Bendel the

day the spreadsheet came to management’s attention and terminated the other three

employees the following day after reviewing their instant-message communications.

Maj. Op. 4-6. The four employees filed a charge, the Board’s General Counsel issued

a complaint, and an administrative law judge (“ALJ”) ruled against VIP, ordering

reinstatement and make-whole relief that included compensation “for all direct or

foreseeable pecuniary harms that [the employees] suffered as a result of Respondent’s

unfair labor practices, regardless of whether those expenses exceed interim

earnings.” JA 1740-41. The ALJ explicitly attributed this remedy language to Thryv.

JA 1741.

VIP excepted to the ALJ’s proposed remedies. Under a heading stating that

“[t]he proposed remedies are unreasonably burdensome and punitive,” JA 1674, VIP

quoted Thryv’s standard remedial language verbatim and objected that the ALJ

“appears to have ordered remedies that impermissibly exceed make-whole remedies,”

that the award “is not a ‘make whole’ remedy authorized by the Act,” and that it

would “impose a punitive and unlawful penalty on VIP that is inconsistent with the

remedial purposes of the remedies authorized by the Act.” JA 1677. On November 5,

2024, the Board affirmed the ALJ’s decision and ordered VIP to compensate the

employees “for any other direct or foreseeable pecuniary harms incurred as a result

of the unlawful termination of their employment, including reasonable search-forwork and interim employment expenses, if any, regardless of whether these expenses

exceed interim earnings.” JA 1734.

VIP timely petitioned the D.C. Circuit for review of the Board’s November 5,

2024 decision, and the Board cross-applied for enforcement. Following briefing and

oral argument, a divided panel issued its decision on May 26, 2026. The panel

unanimously vacated the Board’s liability findings as to Dragoon, Noble, and Swift,

holding that the Board violated due process by resting its decision on uncharged

conduct, and remanded their cases. Maj. Op. 13-18. As to Bendel, the panel affirmed

the Board’s liability finding and granted enforcement of the Board’s remedies,

including the Thryv remedy. Maj. Op. 18-27.

The majority did not defend the remedy on the merits, instead holding that

VIP failed to preserve its “facial challenge” to Thryv under 29 U.S.C. § 160(e) and

mischaracterizing VIP’s objection before the Board as a case-specific “windfall”

argument. Maj. Op. 23. It separately held VIP’s Seventh Amendment challenge

unpreserved. Maj. Op. 26-27.

Judge Justin R. Walker dissented. On preservation, he concluded that VIP

“specifically objected in its exceptions” to the Thryv remedy and that VIP’s verbatim

quotation of Thryv’s remedial language, challenged as punitive, unlawful, and

inconsistent with the Act, satisfied the D.C. Circuit’s standard requiring only that

the ground for an exception be “evident by the context in which it is raised.” Dissent

10-12; Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981); see Camelot

Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090-91 (D.C. Cir. 2016). On the merits, Judge

Walker explained that the Thryv “award for pecuniary harms is a compensatorydamages award” that “Congress did not authorize the NLRB to order,” and he would

have vacated the portion of the Board’s order requiring VIP to compensate Bendel for

all direct or foreseeable pecuniary harms. Dissent 10, 15.

VIP filed a petition for panel rehearing and rehearing en banc on July 10, 2026.

The D.C. Circuit denied rehearing on August 12, 2026. VIP then moved the D.C.

Circuit to stay issuance of its mandate pending certiorari. The D.C. Circuit denied

that motion on September 2, 2026, and its mandate issued on September 9, 2026.

VIP’s deadline to file a petition for writ of certiorari is November 10, 2026. VIP

is presently preparing its petition and shall file on or before that date.

REASONS TO GRANT THE APPLICATION

A four-part test governs the Supreme Court’s grant of an application to stay

pending disposition of a petition for writ of certiorari:

First, it must be established that there is a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari or to

note probable jurisdiction . . . , the applicant must persuade [the Circuit

Justice] that there is a fair prospect that a majority of the Court will conclude

that the decision below was erroneous…Third, there must be a demonstration

that irreparable harm is likely to result from the denial of a stay . . . And fourth,

in a close case, it may be appropriate to ‘balance the equities’—to explore the

relative harms to applicant and respondent, as well as the interests of the

public at large.

Rostker, 448 U.S. at 1308; Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). VIP’s

forthcoming petition satisfies this standard.

There is a Reasonable Probability that this Court Will Grant

Certiorari

Both VIP’s preservation question and the underlying merits concerning the

ultimate lawfulness of the Thryv remedy constitute substantial questions justifying

appellate review by the Supreme Court. In relevant part, the Supreme Court will

consider hearing cases where “a United States court of appeals has entered a decision

in conflict with the decision of another United States court of appeals on the same

important matter…or has so far departed from the accepted and usual course of

judicial proceedings…as to call for an exercise of this Court’s supervisory power[.]”

Sup. Ct. R. 10(a). Both of VIP’s questions for certiorari fall within Rule 10(a)’s

enumerated categories.

A. The Preservation Issue

VIP’s exceptions to the Board quoted Thryv’s standard remedial language

word-for-word, and expressly challenged it as “punitive,” unlawful, and “inconsistent

with the remedial purposes of the remedies authorized by the Act”. Pet. Reh’g 1. As

Judge Walker noted, this challenge “put the NLRB on notice of [VIP’s] objection to

the Thryv remedy” under the D.C. Circuit’s settled standard which “has not required

a party to frame objections with exacting detail, technical precision, or citations to

the precise precedent that it wants reconsidered.” Dissent 11-12; see Consol.

Freightways, 669 F.2d at 794; Camelot Terrace, 824 F.3d at 1090-91. Yet the panel

majority—despite directly quoting VIP’s exception to the Board that “[t]he ALJ

appears to have ordered remedies that impermissibly exceed make-whole remedies”

and that the award of “all direct or foreseeable pecuniary harms” would “impose a

punitive and unlawful penalty on VIP that is inconsistent with the remedial purposes

of the remedies authorized by the Act”—nevertheless held that VIP had failed to

preserve the argument for appeal. Maj. Op. 22. The majority’s holding is an

unexplained departure from the D.C. Circuit’s applicable preservation standard

articulated in Consol. Freightways and Camelot Terrace. In so holding, the majority

“so far departed from the accepted and usual course of judicial proceedings” as to

present a substantial question worthy of “an exercise of [the Supreme Court’s]

supervisory power[,]” thus justifying certiorari. Sup. Ct. R. 10(a).

Indeed, the Supreme Court frequently grants certiorari to review whether

lower courts departed from established legal standards, as the D.C. Circuit did here.

E.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 493 (1984) (certiorari

granted “to consider whether the Court of Appeals erred when it refused to apply the

clearly-erroneous standard of Rule 52(a) to the District Court’s ‘finding’ of actual

malice.”) (citation omitted); Hardy v. Cross, 565 U.S. 65, 66 (2011) (certiorari granted

where appellate court departed from the AEDPA’s “highly deferential standard for

evaluating state-court rulings”); Harte-Hanks Communications, Inc. v. Connaughton,

491 U.S. 657, 663-664 (1989) (certiorari granted in relevant part to consider if the

appellate court applied a “less severe” standard than the one applicable to defamation

cases). This is the heart of the preservation question: the panel majority appears to

have outright abandoned the governing preservation standard without justification.

Under Consol. Freightways and Camelot Terrace, as Judge Walker correctly observed,

the relevant question is whether the ground for the objection was evident from

context. The majority nevertheless found VIP had not preserved the issue despite

VIP’s verbatim quotation of and direct challenge to the problematic Thryv remedy

language, as well as its repeated assertions that the imposition of that remedy

exceeded the Board’s statutory authority and constituted an unlawful penalty. If a

verbatim quotation of the challenged remedy language and an explicit challenge to

the lawfulness of that remedy is insufficient to preserve that issue for appeal does not

provide sufficient context to preserve, it is difficult to imagine what would suffice

short of the sort of didactic preservation which neither Consol. Freightways nor

Camelot Terrace require.

The preservation question also implicates decisions of other circuits which

likewise faced questions of whether challenges to the Thryv remedy had been

preserved, further cementing its status as a substantial question under the Supreme

Court’s own rules. In Starbucks, the Sixth Circuit held that Starbucks “fairly

apprise[d]” the Board of its “intention to bring up the question of permissible

remedies on appeal”’ by arguing in the underlying administrative proceeding that the

imposed remedy was “not an equitable concept but instead a legal principle typically

preserved for juries in court,” that the Board “does not have the authority to create

or award additional types of compensatory relief,” and 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….”

Starbucks, 159 F.4th at 468 (6th Cir.) (citations and internal quotation marks

omitted). The Fifth Circuit went further still, excusing an employer’s complete failure

to challenge Thryv before the Board because doing so would have been futile in light

of the Board’s insistence that the Thryv remedies are valid. See Harvard Maint., Inc.

v. NLRB, 165 F.4th 886, 897 (5th Cir. 2026). Under either approach, VIP’s challenge

would have been preserved and heard by the D.C. Circuit. Such divergent outcomes

premised on comparable records of challenging the validity of the remedy (or, in the

case of Harvard Maint., Inc., a nonexistent record), especially in the context of the

circuit split over Thryv, is itself worthy of the Supreme Court’s attention.

Finally, this Court has repeatedly granted certiorari where a court of appeals’

application of a preservation rule foreclosed review of an important underlying legal

issue. For example, in Holguin-Hernandez v. United States, the Fifth Circuit held

that a defendant forfeited his substantive-reasonableness challenge because he did

not separately object after sentencing; this Court held that requesting a shorter

sentence ordinarily preserved the objection to the longer sentence imposed. 589 U.S.

169, 173-75 (2020). Even more recently, in Dupree v. Younger, the Fourth Circuit

dismissed an appeal because a purely legal issue resolved at summary judgment had

not been renewed post-trial; this Court unanimously held that no such renewal was

required. 598 U.S. 729, 734-38 (2023). Those decisions confirm that the correctness

of a preservation ruling may itself warrant certiorari when that ruling is the sole

barrier to reviewing an important legal issue. Here, the preservation ruling alone

prevents review of a remedy that has produced an acknowledged circuit conflict and

implicates statutory and constitutional limits on agency adjudication; there is, at

minimum, a “reasonable probability that four Justices” will consider VIP’s

preservation question “sufficiently meritorious” to grant certiorari. Rostker, 448 U.S.

at 1308.

B. The Merits Issue

The merits issue presents an equally substantial question and suffices to

justify Supreme Court review on its own. 2 There is a clear circuit conflict on the

validity of the Thryv remedy, a split which the Board itself has characterized as

“lopsided.” NLRB Macy’s Br. 12. Indeed, at least three circuits have squarely held

that the Board lacks statutory authority to award compensation for “all direct or

foreseeable pecuniary harms.” Starbucks, 125 F.4th at 94-97 (3d Cir.); Hiran, 157

F.4th at 725-29; Starbucks, 159 F.4th at 467-82 (6th Cir.). Only the Ninth Circuit

and, now, the D.C. Circuit have sustained the remedy, the former over a panel

dissent and a six-judge dissent from the denial of rehearing en banc. Int’l Union of

Operating Eng’rs, Stationary Eng’rs, Loc. 39, 155 F.4th at 1048. And though the

D.C. Circuit ultimately upheld the remedy, Judge Walker’s dissent adds a further

reasoned voice to the growing chorus of judges who have concluded that Thryv

2 Though the Supreme Court is a “court of review, not of first view,” Moody v. NetChoice, LLC, 603

U.S. 707, 726 (2024) (citation omitted), this general rule does not completely bar the Supreme Court

from deciding an issue not reached by the court below. See, e.g., NLRB v. Noel Canning, 573 U.S. 513,

521-522 (2014) (addressed petitioner’s “initial argument” as well as narrower issue actually decided

by the D.C. Circuit); cf. U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S.

439, 447 (1993) (“[A] court may consider an issue ‘antecedent to . . . and ultimately dispositive of’ the

dispute before it, even an issue the parties fail to identify and brief.”).

awards are legal damages that Congress never authorized. See Dissent 1-10; see

also 3484, Inc., 137 F.4th at 1121-27 (Eid, J.); Trader Joe’s, 167 F.4th at 801-02

(Oldham, J., dissenting).

In addition to the Circuits, the Board itself has cast doubt over the validity of

the Thryv remedy. In Macy’s Inc. v. NLRB, No. 25-627—the certiorari proceeding

arising from the lone Ninth Circuit decision sustaining Thryv, on which the Board

had expressly relied below—the Board declined to defend the remedy. It instead

asked the Supreme Court to “vacate the judgment of the court of appeals and

remand the case to the Board to allow for further consideration” of the remedy,

explaining that two of the Board’s then three sitting members were open to

reconsidering whether Thryv remedies “are permissible under the Act,” and

describing the case as involving a “lopsided circuit split, concerning a discretionary

remedy, that may soon be moot.” NLRB Macy’s Br. 12-16. 3

Macy’s is not the only case where the Board appears to have effectively

disavowed Thryv. The Ninth Circuit enforced a Thryv remedy in Int’l Bd. of

Teamsters v. NLRB, No. 23-2081, 2026 WL 1079297, at *10 (9th Cir. Apr. 21, 2026),

as amended, 2026 WL 1952740, at *1 (9th Cir. July 1, 2026). After winning that

ruling, the NLRB filed its own petition for rehearing calling Thryv “disputed” and

3 This Court’s recent denial of certiorari in Macy’s does not materially alter this assessment.

The respondent union represented there that no employee had suffered a Thryv harm and that there

was “no chance” Macy’s would face Thryv liability, leaving no live remedial controversy. Int’l Union

Supp. Br. 2, Macy’s, No. 25-627 (U.S. filed May 29, 2026). VIP, by contrast, is subject to an enforced

order which directs compensation for direct or foreseeable pecuniary harms. Though the Board in its

recent filings below attempted to downplay the likelihood of the Thryv remedy actually being imposed

in the compliance proceeding, the threat of imposition remains and this case therefore presents the

live controversy that Macy’s did not.

“unsettled,” and asking the court to “vacat[e] the portion of the Court’s Judgment

enforcing the Thryv remedy” on mootness grounds. Int’l Bd. of Teamsters v. NLRB,

No. 23-2081, NLRB Pet. Reh’g 4-5 (filed May 28, 2026). The Ninth Circuit panel

subsequently amended the decision to remove its approval of the Thryv remedy. See

2026 WL 1952740, at *1. Moreover, recent Board decisions show that two of the

three members who have decided recent cases remain “open to reconsideration” of

the permissibility of the Thryv remedy. 4 E.g., The Oil Man Corporation d/b/a

Enright & Sons, Inc. and Inter. Ass’n of Sheet Metal, Air, Rain & Transp. Workers,

Sheet Metal Workers Local Union #9, 374 NLRB No. 136, 2026 WL 1831595 at *4, n.

3 (2026); Lodi Volunteer Ambulance Rescue Squad, Inc., et al, 374 NLRB No. 26,

2026 WL 266163 at *4, n. 3 (2026). Such uncertainty, fomented both by circuit splits

and the agency itself, presents an archetypal “substantial question” warranting

Supreme Court review. See, e.g., Epic Systems Corp. v. Lewis, 584 U.S. 497, 505

(2018) (granting certioriari to “clear the confusion” caused by circuit split and

agency disagreement over Board position).

II.

There is a Fair Prospect that this Court Will Reverse the D.C.

Circuit’s Decision

There is, at minimum, a fair prospect that this Court will reverse the judgment

below because both the gateway preservation ruling and the underlying remedial

question are seriously contestable. This standard does not require certainty. For

example, in Rostker, Justice Brennan characterized reversal as a “fair” prospect

At the time of filing, the Board is now up to four members, with the August 7, 2026

confirmation of James Macy.

where the case was “difficult and perplexing,” the issues were the subject of

“considerable debate,” and the outcome could not “be predicted with anything

approaching certainty.” 448 U.S. at 1309; see also, e.g., Times-Picayune Pub. Corp. v.

Schulingkamp, 419 U.S. 1301, 1308 (1974) (Powell, J., in chambers). This case fits

that description.

On the preservation issue, Judge Walker explained in detail why VIP’s

exceptions satisfied the governing notice standard. Dissent 10-12. HolguinHernandez confirms the underlying principle: preservation ordinarily turns on

whether a litigant communicated the action sought or objection made, not whether it

later used a preferred formulation. See 589 U.S. at 173-75. VIP quoted Thryv’s

remedial language word-for-word, challenged the award as exceeding make-whole

relief, identified it as unauthorized by the Act, and called it punitive and unlawful.

At minimum, Judge Walker’s conclusion that VIP’s challenge sufficed to preserve the

issue establishes a fair prospect that this Court will reject the majority’s departure

from the applicable standard.

The merits provide an independent and, indeed, stronger basis for finding a

fair prospect of reversal. Three circuits have held that Thryv exceeds the Board’s

statutory authority, and multiple judges in other circuits have reached the same

conclusion. The considered analysis of courts on the other side of a conflict is evidence

of a fair prospect of reversal. Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts,

C.J., in chambers). Here, that analysis also includes Judge Walker’s examination of

the same order now enforced against VIP.

Taken together, Judge Walker’s dissent, the inter-circuit disagreement over

Thryv, the live remedial controversy, and this Court’s decisions correcting

preservation rules establish considerably more than a mere speculative possibility of

reversal.

III.

Absent a Stay, VIP Will Suffer Irreparable Harm

VIP’s potential injury is neither speculative nor contingent. The Board’s order

imposes a final, binding obligation on VIP to compensate Bendel for “any other direct

or foreseeable pecuniary harms . . . regardless of whether these expenses exceed

interim earnings.” JA 1734. The D.C. Circuit enforced that obligation and has now

issued its mandate. Unless that mandate is recalled and stayed, VIP will be required

to defend a compliance inquiry directed at an open-ended, damages-like category of

relief that three circuits have held the Board lacks power to award, that Judge Walker

would have vacated, and that the Board declined to defend on the merits before this

Court in Macy’s.

The Board argued below that Bendel’s prompt reemployment reduces the

likelihood of any Thryv award or complex compliance proceeding. NLRB Opp. 14.

That prediction cannot eliminate the injury. The operative order authorizes the

disputed remedy, and the compliance process exists to investigate and adjudicate

whether Bendel incurred qualifying pecuniary harms. VIP’s constitutional objection

is that legal damages may not be adjudicated through that nonjury agency process.

If that premise is correct, the injury occurs when VIP is subjected to the challenged

mode of adjudication, not only when a final dollar amount is imposed.

Axon Enterprise, Inc. v. FTC supplies the closest analogy. In Axon, the Court

explained that a party asserting a right not to undergo an unconstitutional

administrative adjudication suffers a “here-and-now injury” from the proceeding

itself, “irrespective of the proceeding’s outcome,” because that right is “effectively lost”

if review of the challenged proceeding awaits its completion. 598 U.S. 175, 191-92

(2023) (internal quotation marks omitted). The Court in Coinbase, Inc. v. Bielski

likewise recognized that lower proceedings should not continue during the pendency

of Supreme Court review where doing so would effectively moot the claimed right to

avoid the process under review—indeed, “it makes no sense” for the Thryv-focused

compliance proceedings to begin while the Supreme Court “cogitates on whether

there should be” compliance proceedings at all. 599 U.S. 736, 741-43 (2023) (citation

omitted). In addition, the D.C. Circuit itself has long recognized that the loss of

constitutional freedoms, even briefly, constitutes irreparable injury. Mills v. District

of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). This is VIP’s complaint and its

injury: its loss of its Seventh Amendment right to a jury trial, a right which would be

irrevocably lost if the compliance proceeding is permitted to continue while the

Supreme Court considers the threshold question of whether the D.C. Circuit’s

preservation ruling wrongly foreclosed VIP’s right to argue that the Thryv remedy is

unlawful, as well as the fundamental, underlying merits issue of the Thryv remedy’s

lawfulness.

IV.

The Balance of Equities Favors a Stay

To the extent this Court finds VIP’s application a close call, the balance of

equities firmly favors a stay. Regardless of the ultimate outcome of the compliance

proceeding, VIP faces the loss of its Seventh Amendment rights if it must submit to

the compliance process before this Court can review its petition for certiorari. The

countervailing harm is, by contrast, very limited. Bendel obtained new employment

shortly after his discharge, Maj. Op. 20, and any backpay ultimately owed will include

interest. The Board itself argued that Bendel’s prompt reemployment—while, as

discussed supra, importantly did not foreclose the imposition of the Thryv remedy—

“reduces the likelihood that [Bendel] is entitled to Thryv remedies or that a complex

compliance proceeding will ensue.” NLRB Opp. 14. That concession substantially

narrows any interest in immediately moving forward with the compliance

proceedings. Nor can the Board identify a strong interest in immediate enforcement

of a discretionary remedy it asked this Court to permit it to reconsider in Macy’s and

has repeatedly expressed the intent to reconsider. See NLRB Macy’s Br. 12-16; Oil

Man, 2026 WL 1831595, at *4 n.3; Lodi, 2026 WL 266163, at *4 n.3.

The public interest also favors a temporary stay. The stay would preserve the

status quo while this Court considers two questions bearing on the orderly

administration of federal review: whether the D.C. Circuit applied its established

preservation standard, and whether the Board may impose this disputed category of

monetary relief through agency adjudication. Proceeding immediately risks

expending private and agency resources on a remedy that very well may be vacated,

reconsidered by the Board, or held beyond the Board’s authority. A limited stay avoids

that risk without disturbing the undisputed portions of the Board’s order or the

mandate as to Dragoon, Noble, and Swift.

CONCLUSION

For the foregoing reasons, the Chief Justice should recall and stay the D.C.

Circuit’s mandate solely as to Christopher Bendel pending this Court’s disposition of

VIP’s forthcoming petition for a writ of certiorari, including any proceedings on the

merits. In the alternative, the Chief Justice should enter an administrative stay

sufficient to permit the full Court to consider this application.

Respectfully submitted,

__________________________

Stephen D. Ellis

Paul Frank + Collins, PC

P.O. Box 1307

Burlington, VT 05402-1307

802.658.2311

sellis@pfclaw.com

September 9, 2026

Counsel for Vermont Information

Processing, LLC

APPENDIX

TABLE OF CONTENTS

Page

JUDGMENT AND ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT, FILED JUNE 9, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT, FILED

MAY 26, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9a

DECISION AND ORDER OF THE NATIONAL LABOR

RELATIONS BOARD, FILED NOVEMBER 5, 2024 . . . . . . . . . . . . . 51a

ORDER OF THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT, FILED

SEPTEMBER 2, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61a

USCA Case #24-1360

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

VERMONT INFORMATION PROCESSING, INC. )

)

Petitioner/Cross-Respondent

)

NATIONAL LABOR RELATIONS BOARD

)

Respondent/Cross-Petitioner

)

-------------------)

)

CHRISTOPHER BENDEL, GORDON DRAGOON, )

KALEB NOBLE, AND KESTREL SWIFT

)

Intervenors for Respondent/Cross-Petitioner )

)

Nos. 24-1360

24-1375

Board Case No.

03-CA-301055

JUDGMENT

Before: Millett, Walker, and Pan, Circuit Judges

THIS CAUSE came to be heard upon a petition filed by Vermont

Information Processing, Inc. to review an Order of the National Labor Relations

Board dated November 5, 2024, in Case No. 03-CA-301055, reported at 373

NLRB No. 131, and upon a cross-application for enforcement filed by the National

Labor Relations Board to enforce said Order. The Court heard argument of the

parties and has considered the briefs and agency record filed in this cause. On

May 26, 2026, the Court handed down its opinion granting in part the petition of

Vermont Information Processing, Inc., and granting in part the National Labor

Relations Board’s cross-petition for enforcement. In conformity therewith, it is

hereby

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ORDERED AND ADJUDGED by the United States Court of Appeals for

the District of Columbia Circuit that Petitioner/Cross-Respondent Vermont

Information Processing, Inc., its officers, agents, successors, and assigns, shall

abide by the said Order as modified by the Court. (See Attached Order and

Appendix).

Judge, United States Court of Appeals

for the District of Columbia Circuit

Judge, United States Court of Appeals

for the District of Columbia Circuit

Judge, United States Court of Appeals

for the District of Columbia Circuit

ENTERED:

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VERMONT INFORMATION PROCESSING, INC.

NATIONAL LABOR RELATIONS BOARD

ORDER

Vermont Information Processing, Inc., Colchester, Vermont, its officers, agents,

successors, and assigns, shall

1. Cease and desist from

(a) Discharging, suspending or otherwise discriminating against any

employee for engaging in protected concerted activity.

(b) In any like or related manner interfering with, restraining, or coercing

employees in the exercise of the rights guaranteed them by Section 7 of

the National Labor Relations Act.

2. Take the following affirmative action necessary to effectuate the policies of

the Act.

(a) Within 14 days from the date of the Court’s Order, offer Christopher

Bendel full reinstatement to his former job or, if that job no longer exists,

to a substantially equivalent position, without prejudice to his seniority or

any other rights or privileges previously enjoyed.

(b) Make Christopher Bendel 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 him, in the manner set forth in the

remedy section of the Administrative Law Judge’s decision as amended

by the Board.

of receiving a lump-sum backpay award, and file with the Regional

Director for Region 3, within 21 days of the date the amount of backpay

is fixed, either by agreement or Board order, a report allocating the

backpay award to the appropriate calendar years.

(d) File with the Regional Director for Region 3 a copy of the corresponding

W-2 form(s) for Christopher Bendel reflecting the backpay award as set

forth in the remedy section of the Administrative Law Judge’s decision as

amended by the Board.

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(e) Within 14 days from the date of the Court’s Order, remove from its files

any reference to the unlawful discharge of Christopher Bendel, and within

3 days thereafter notify Bendel in writing that this has been done and that

his discharge will not be used against him in any way.

(f) Preserve and, within 14 days of a request, or such additional time as the

Regional Director for Region 3 may allow for good cause shown, provide

at a reasonable place designated by the Board or its agents, all payroll

records, social security payment records, timecards, personnel records and

reports, and all other records, including an electronic copy of such records

if stored in electronic form, necessary to analyze the amount of backpay

due under the terms of the Board’s Order.

(g) Post at its facility in Colchester, Vermont, copies of the attached notice

marked “Appendix.” 1 Copies of the notice, on forms provided by the

Regional Director for Region 3, after being signed by the Respondent’s

authorized representative, shall be posted by the Respondent and

maintained for 60 consecutive days in conspicuous places, including all

places where notices to employees are customarily posted. In addition to

physical posting of paper notices, notices shall be distributed

electronically, such as by email, posting on an intranet or an internet site,

and/or other electronic means, if the Respondent customarily

communicates with its employees by such means. Reasonable steps shall

be taken by the Respondent to ensure that the notice is not altered,

defaced, or covered by any other material. If the Respondent has gone out

of business or closed the facility involved in these proceedings, the

Respondent shall duplicate and mail, at its own expense, a copy of the

notice to all current employees and former employees employed by the

If the facility involved in these proceedings is open and staffed by a substantial

complement of employees, the notices must be posted within 14 days after service

by the Region. If the facility involved in these proceedings is closed or not staffed

by a substantial complement of employees due to the Coronavirus Disease 2019

(COVID-19) pandemic, the notices must be posted within 14 days after the facility

reopens and a substantial complement of employees has returned to work. If, while

closed or not staffed by a substantial complement of employees due to the pandemic,

the Respondent is communicating with its employees by electronic means, the notice

must also be posted by such electronic means within 14 days after service by the

Region. If the notice to be physically posted was posted electronically more than 60

days before physical posting of the notice, the notice shall state at the bottom that

“This notice is the same notice previously [sent or posted] electronically on [date].”

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Respondent at any time since February 16, 2022.

(f) Within 21 days after service by Region 3, file with the Regional Director

a sworn certification of a responsible official on a form provided by the

Region attesting to the steps that it has taken to comply.

Mandate shall issue forthwith.

ENTERED:

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APPENDIX

NOTICE TO EMPLOYEES

POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and

has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT discharge, suspend or otherwise discriminate against any of you for

engaging in protected concerted activity.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you

in the exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL, within 14 days from the date of this Order, offer Christopher Bendel full

reinstatement to his former job or, if that job no longer exists, to a substantially

equivalent position, without prejudice to his seniority or any other rights or

privileges previously enjoyed.

WE WILL make Bendel whole for any loss of earnings and other benefits resulting

from his unlawful discharge, less any net interim earnings, plus interest, and WE WILL

also make him whole for any other direct or foreseeable pecuniary harms suffered

as a result of the unlawful discharge, including reasonable search-for-work and

interim employment expenses, plus interest.

WE WILL compensate Bendel for the adverse tax consequences, if any, of receiving

a lump-sum backpay award, and WE WILL file with the Regional Director for

Region 3, within 21 days of the date the amount of backpay is fixed, either by

agreement or Board order, a report allocating the backpay award to the appropriate

calendar years for Bendel.

WE WILL file with the Regional Director for Region 3, within 21 days of the date

the amount of backpay is fixed by agreement or Board order or such additional time

as the Regional Director may allow for good cause shown, a copy of the

corresponding W-2 form(s) for Bendel reflecting the backpay award.

WE WILL, within 14 days from the date of this Order, remove from our files any

reference to Bendel’s unlawful discharge and WE WILL, within 3 days thereafter,

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notify him in writing that this has been done and that the discharge will not be used

against him in any way.

VERMONT INFORMATION PROCESSING, INC.

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

VERMONT INFORMATION PROCESSING, INC. )

)

Petitioner/Cross-Respondent

)

NATIONAL LABOR RELATIONS BOARD

)

Respondent/Cross-Petitioner

)

-------------------)

)

CHRISTOPHER BENDEL, GORDON DRAGOON, )

KALEB NOBLE, AND KESTREL SWIFT

)

Intervenors for Respondent/Cross-Petitioner )

)

Nos. 24-1360

24-1375

Board Case No.

03-CA-301055

CERTIFICATE OF SERVICE

I hereby certify that on June 9, 2026, I electronically filed the foregoing with

the Clerk for the Court of the United States Court of Appeals for the District of

Columbia Circuit by using the appellate CM/ECF system. I further certify that this

document was served on all parties or their counsel of record through the appellate

CM/ECF system.

s/ Ruth E. Burdick

Ruth E. Burdick

Deputy Associate General Counsel

National Labor Relations Board

1015 Half Street SE

Washington, DC 20570-0001

(202) 273-2960

Dated at Washington, DC

this 9th day of June 2026

USCA Case #24-1360

Document #2174929

Filed: 05/26/2026

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2025

Decided May 26, 2026

No. 24-1360

VERMONT INFORMATION PROCESSING, INC.,

PETITIONER

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

CHRISTOPHER BENDEL, ET AL.,

INTERVENORS

Consolidated with 24-1375

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

Stephen D. Ellis argued the cause for petitioner. With him

on the briefs was Carl “Ott” Lindstrom. Tillman J.

Breckenridge entered an appearance.

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Gregoire Sauter, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the brief

were Ruth E. Burdick, Deputy Associate General Counsel,

Meredith Jason, Assistant General Counsel, and Usha

Dheenan, Supervisory Attorney.

Before: MILLETT, WALKER and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge PAN.

Opinion concurring in part and dissenting in part filed by

Circuit Judge WALKER.

PAN, Circuit Judge: Employees often wonder how much

money their coworkers are making. Such information might

help them negotiate salary raises, serve as a point of

comparison when seeking other employment, or simply satisfy

their curiosity. Sharing salary information among employees

is a protected activity under the National Labor Relations Act.

In this case, the National Labor Relations Board (NLRB)

determined that Vermont Information Processing, Inc. (VIP)

illegally fired four employees for creating and disseminating a

salary-sharing spreadsheet. The Board ordered VIP to offer the

employees reinstatement and to compensate them financially.

VIP petitions for review of that order, while the NLRB crossapplies for enforcement.

We hold that substantial evidence supports the Board’s

determination that VIP illegally fired one of the employees,

Christopher Bendel. But with respect to the other three

workers, the Board impermissibly broadened its theory of

liability to include an additional consideration beyond the

scope of the NLRB General Counsel’s complaint against the

company. We therefore grant each petition in part, deny each

petition in part, and remand for further proceedings.

10a

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I. Factual Background

VIP is a software company that services the beverage

industry. It employs software engineers to build and maintain

applications used by its customers, and it organizes those

engineers into small software-development teams.

In February 2022, VIP began rolling out a restructuring

plan. As part of the roll-out, software engineer Christopher

Bendel met with his supervisor, Sam Graefe, to discuss how

the restructuring would affect Bendel’s role. The meeting did

not go well. Bendel was dissatisfied with the new position that

management had designed for him and expressed his concerns

to Graefe. He ended the conversation abruptly and then called

Graefe’s supervisor, Director of Development Christopher

McGinty, to discuss his concerns. Prior to those conversations,

Bendel had informed both Graefe and McGinty that “he had

offers from other companies.” J.A. 851. When Graefe and

McGinty compared notes about their interactions with Bendel,

Graefe noted that Bendel “didn’t seem too happy about our

conversation,” while McGinty wrote that it “wasn’t a pretty

conversation.” S.J.A. 4–6.

Later that day, Bendel messaged another software

engineer, Kaleb Noble, on VIP’s Google Workspace platform.

Bendel described his meeting with Graefe as a “shitshow” and

claimed that he had “hung up on [Graefe].”1 J.A. 1137–39.

During that conversation, Noble asked Bendel, “Do you mind

me asking your salary . . . ?” J.A. 1141. Bendel informed

Noble that his salary was $95,000, and Noble responded that

his was $87,000. Bendel then asked, “[W]anna start a [salary]

Graefe has never confirmed that Bendel hung up on him, and

Bendel later testified that he had been “puffing [his] chest a little bit

in the chat with” Noble. J.A. 594.

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spreadsheet?” Id. After Noble agreed, Bendel created a

spreadsheet and shared it with Noble, and Noble said that he

would share it with two other software engineers, Gordon

Dragoon and Kestrel Swift. Noble described the spreadsheet’s

purpose as follows: “The idea in my mind is so if you wanna

ask for a raise you got some reference to see if you’re getting

fisted lol.” J.A. 1145. Bendel agreed. Bendel and Noble

shared the spreadsheet with Dragoon and Swift, and all four

employees entered their names, positions, and salaries into the

first four rows.

The next day, between 8:00 and 9:00 a.m., VIP held a

virtual all-hands meeting to launch its restructuring plan.

During or immediately after the meeting, the four employees

began sharing the spreadsheet link with other employees.

Around twenty-five coworkers entered information into the

spreadsheet. An employee who received the spreadsheet

shared it with a supervisor, who shared it with Development

Director McGinty, who passed it on to Operations Director

Louise Morgan.

At 11:26 a.m., Morgan met with McGinty to view and

discuss the spreadsheet. From the file-ownership information,

they could tell that Bendel had created it. And they noticed a

notation on the spreadsheet indicating that “100 [percent]” of

VIP’s software developers were “underpaid.” J.A. 1293

(showing two adjacent spreadsheet cells, the first reading “%

of underpaid devs” and the next reading “100”). Morgan and

McGinty attributed that statement to Bendel, as the

spreadsheet’s creator.2 When they told Chief Financial Officer

The record contains mixed evidence concerning whether Bendel

actually added this notation, or whether a different employee did.

But the record makes clear that, beyond identifying who originally

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John Simard and other company leaders about the spreadsheet,

Simard reacted strongly. Simard believed that the spreadsheet

was “not appropriate,” “not accurate,” and “serve[d] no

purpose.” J.A. 1028. In particular, he took issue with “the idea

that [the spreadsheet] was being used to demonstrate that all of

[VIP’s] programmers, a hundred percent of them[,] are

underpaid.” Id. Based largely on Simard’s arguments,

management decided to disable the spreadsheet. They then

discussed Bendel’s future at the company and quickly decided

to fire him.

At around 11:32 a.m., VIP management disabled Bendel’s

internal accounts. The company remotely locked his computer

and fired him at around noon. When informing Bendel of his

termination, McGinty cited Bendel’s “feeling towards VIP”

and his “attitude,” particularly “towards the restructuring and

how he . . . was uninterested in partaking in that.” J.A. 855;

accord J.A. 1130 (Bendel’s description of his conversation

with McGinty). Management disabled the spreadsheet at

around 12:19 p.m., but Dragoon informed Noble and Swift that

he had already downloaded the spreadsheet and would transfer

it to his personal email.

During and after these events, the four creators of the

spreadsheet exchanged a plethora of colorful messages. Many

of those messages pertained directly to the spreadsheet, their

salaries, and their unhappiness with Bendel’s firing. Other

messages went further afield. For example, the employees

discussed their desire to leave VIP and to convince one of their

coworkers to join them. They repeatedly used profanity to

criticize VIP management; discussed “[p]urg[ing] [their]

computers,” J.A. 1197; and talked about sharing their

created the spreadsheet, Morgan and McGinty made no further effort

to verify that Bendel authored the notation.

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complaints with a former VIP employee who was working for

a VIP customer.

The day after Bendel’s termination, VIP’s Information

Technology Director discovered the messages and forwarded

them to management, prompting management to convene a

meeting to discuss the messages and the fate of their authors.

Senior executives reviewed the spreadsheet, the messages, and

the employees’ most recent performance evaluations. It came

to light that in a performance review from two years earlier,

Swift had stated, “VIP will fire me without remorse the second

it doesn’t think it can squeeze more money out of me tha[n] it

pays me. Why would I be loyal? This is a loveless exchange

of labor for currency between two mutually selfish parties.”

J.A. 1366. Simard, concerned by the messages and by Swift’s

statement, successfully advocated for firing the disgruntled

employees. VIP terminated Dragoon, Noble, and Swift later

that day. The company did not conduct any further

investigation into the fired employees’ conduct.

Immediately after the terminations, McGinty held a

meeting with all VIP employees. He announced that VIP had

terminated the four spreadsheet creators but emphasized that

employees remained free to share salary information.

II. Procedural Background

Bendel, Dragoon, Noble, and Swift filed an NLRB charge

against VIP, accusing the company of firing them for “salary

sharing efforts.” J.A. 1254. The NLRB General Counsel then

filed a complaint and notice of hearing against VIP for

violating the National Labor Relations Act (NLRA). The

complaint alleged that VIP had fired the four employees for

“engag[ing] in concerted activities with each other and with

other employees for the purposes of mutual aid and protection,

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by creating and disseminating a spreadsheet where employees

could view and share salary information.” J.A. 1258.

The case was tried before an administrative law judge

(ALJ). Numerous witnesses testified, including the four

employees and several members of VIP’s management team.

The ALJ ruled against VIP. He concluded that VIP had

terminated Bendel “for creating and disseminating the

spreadsheet.” J.A. 1739. And he determined that VIP had

terminated Dragoon, Noble, and Swift “for their instant

messaging chats about the spreadsheet and Bendel’s

termination,” activities “inextricably linked to their roles in

creating and disseminating the spreadsheet.” Id. He found as

a factual matter that the spreadsheet was not “materially

inaccurate” and that the “100% underpaid” notation was “a

statement of opinion, not an inaccurate statement of fact.” J.A.

1740 & n.13. As to remedies, the ALJ ordered VIP to offer

reinstatement to the four terminated employees and to

compensate them financially for certain monetary losses

caused by their wrongful terminations.

VIP timely filed exceptions to the ALJ’s decision.

Regarding Bendel, it argued that it had permissibly fired him

for using VIP’s resources “to create and disseminate false and

misleading information for the purpose of disrupting an

organizational restructuring to which he objected.” J.A. 1604.

It raised several arguments as to Dragoon, Noble, and Swift,

including that the ALJ had impermissibly amended the General

Counsel’s complaint as to those three employees by finding

that the “instant messaging chats about the spreadsheet and

Bendel’s termination” were protected conduct. J.A. 1615.

Finally, it challenged the remedies of reinstatement and

financial compensation that the ALJ had ordered.

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The Board affirmed the ALJ’s decision. As to Bendel, the

Board largely adopted the ALJ’s findings and noted that VIP’s

“shifting explanations for Bendel’s discharge [were] additional

evidence of animus towards his protected concerted activity.”

J.A. 1733 n.5. Regarding Dragoon, Noble, and Swift, the

Board first “clarif[ied] that the relevant protected concerted

activity that these employees engaged in and for which [VIP]

discharged them is their online chat communications about the

salary spreadsheet, workplace conditions, and frustration over

Bendel’s recent discharge.” Id. It then “adopt[ed] the [ALJ’s]

pretext findings for the . . . reasons that the [ALJ] stated.” Id.

The Board ordered several remedies, two of which VIP

challenges here. First, it ordered VIP to offer reinstatement to

the discharged employees, even though all four of them had

already secured work elsewhere and had expressed no interest

in returning to VIP. Second, it ordered VIP to provide each

employee with a make-whole financial remedy, including

backpay and “reasonable search-for-work and interim

employment expenses, if any, regardless of whether these

expenses exceed interim earnings,” consistent with the Board’s

earlier decision in Thryv, Inc. J.A. 1734 (citing 372 NLRB No.

22, 2022 WL 17974951 (Dec. 13, 2022), vacated in part on

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

VIP petitions for our review, and the NLRB cross-applies

for enforcement of its order. We have jurisdiction under 29

U.S.C. § 160(e)–(f).

III. Standard of Review

We will “uphold the judgment of the Board unless, upon

reviewing the record as a whole, we conclude that the Board’s

findings are not supported by substantial evidence, or that the

Board acted arbitrarily or otherwise erred in applying

established law to the facts of the case.” DHSC, LLC v. NLRB,

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944 F.3d 934, 937 (D.C. Cir. 2019) (citation omitted).

Evidence qualifies as “substantial” when “a reasonable mind

might accept [it] as adequate to support a conclusion.”

McLamb v. NLRB, 141 F.4th 1308, 1315 (D.C. Cir. 2025)

(cleaned up). Thus, “we may not displace the Board’s choice

between two fairly conflicting views, even though we would

justifiably have made a different choice had the matter been

before us de novo.” Id. at 1315–16 (cleaned up).

IV. Analysis

A. Christopher Bendel

The NLRA protects the right of employees “to engage

in . . . concerted activities for the purpose of collective

bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

If an employer “interfere[s] with” that right, the employer has

committed an unfair labor practice. Id. § 158. We and the

NLRB have recognized that the NLRA’s protections extend to

salary sharing among employees. See Banner Health Sys. v.

NLRB, 851 F.3d 35, 41 (D.C. Cir. 2017).

The parties agree that the NLRB’s Wright Line

framework — which applies “[w]hen an employer claims to

have

discharged

employee

for

legitimate

reasons” — governs this case. Windsor Redding Care Ctr.,

LLC v. NLRB, 944 F.3d 294, 298 (D.C. Cir. 2019) (discussing

Wright Line, a Div. of Wright Line, Inc., 251 NLRB 1083

(1980), enforced, 662 F.2d 899 (1st Cir. 1981)). That

framework has two steps: “At step one, the General Counsel

for the Board must make out a prima facie case that the

employee’s protected activity was a motivating factor in the

employer’s decision to fire her.” Id. “If the General Counsel

carries that burden, the analysis proceeds to step two, at which

the burden of persuasion shifts to the employer to show that it

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would have taken the same action in the absence of the

unlawful motive.” Id. (cleaned up).

It is undisputed that the General Counsel has satisfied the

first step of the Wright Line framework: VIP concedes that

“Bendel’s role in creating and disseminating the [salary]

spreadsheet factored into his dismissal.” Opening Br. 7. VIP

instead focuses on the second Wright Line step, arguing that the

company would have fired Bendel even if it had not discovered

the spreadsheet. See Windsor Redding, 944 F.3d at 298.

In ruling against VIP and concluding that the company

illegally discharged Bendel, the Board reasoned that “[t]he

timing of the terminations and the lack of any credible evidence

that [VIP] planned to discharge [Bendel] prior to [the day that

management learned of the spreadsheet] supports the inference

of discriminatory discharge.” J.A. 1739.3 The Board also

“rel[ied] on [VIP’s] shifting explanations for Bendel’s

discharge as . . . evidence of animus towards his protected

concerted activity.” J.A. 1733 n.5. Substantial evidence in the

record supports the Board’s determinations. See DHSC, 944

F.3d at 937. For example, the record reflects that Bendel was

terminated within seventy minutes of management finding out

about the spreadsheet; and before that day, management had

The Board did not view the timing of the spreadsheet’s removal

as “sufficient, on its own, to establish [VIP’s] animus.” J.A. 1733

n.5. But the Board did not, as VIP suggests, determine that the

rapidity of the spreadsheet’s removal could play no role in

establishing animus. Cf. RAV Truck & Trailer Repairs, Inc. v. NLRB,

997 F.3d 314, 325 (D.C. Cir. 2021) (“Petitioner discharged [its

employee] less than twenty-four hours after the Union filed its first

petition. This timing supports an inference of unlawful motive.”).

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made no mention of firing Bendel and had planned to give him

a new role in the restructured company.

VIP nevertheless insists that numerous lawful

considerations motivated its decision to fire Bendel. But at

bottom, VIP’s arguments are unpersuasive: The Board

reasonably rejected the company’s version of events, and we

review the Board’s decision deferentially. See DHSC, 944 F.3d

at 937 (“Substantial evidence is not a high bar.”).

First, VIP claims that it did not fire Bendel for salary

sharing, but rather because he used the “spreadsheet to disrupt

the roll-out of the restructuring plan and to immunize himself

against possible termination.” Opening Br. 23–24. In other

words, VIP argues that it objected only to the manner, timing,

and motive behind Bendel’s salary-sharing activity. But VIP

cites no authority that permits an employer to terminate an

employee for engaging in protected conduct in a disfavored

manner or for disfavored reasons. Such a loophole would

enable employers to evade the NLRA’s requirements by simply

framing their antipathy to lawful activity in terms of its

potential for “disruption.”

VIP’s disapproval of the

circumstances that surrounded the creation and dissemination

of the salary-sharing spreadsheet is just “another way of

indicating that [Bendel] was terminated because he engaged in

protected concerted activity.” Citizens Inv. Servs. Corp. v.

NLRB, 430 F.3d 1195, 1203 (D.C. Cir. 2005).

Second, VIP claims that it fired Bendel for using VIP’s

information-technology “resources to create, disseminate and

host documents for non-business purposes.” Opening Br. 26.

To be sure, employers enjoy a circumscribed right to restrict

NLRA-protected activity on company time and on certain

company property. See Republic Aviation Corp. v. NLRB, 324

U.S. 793, 798–99 (1945); see also Caesars Ent., 368 NLRB

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No. 143, 2019 WL 6896714, at *8 (Dec. 16, 2019) (exploring

Republic Aviation’s bearing on “virtual space[s],” like “email

system[s]”). But here, the record does not support VIP’s claim

that it fired Bendel for such a transgression. The executives

who discussed Bendel’s alleged misconduct and decided to

terminate him did not cite his use of VIP resources as a factor

in their decision-making. In fact, Morgan “kind of chuckled”

at how developers other than Bendel were modifying the

spreadsheet. J.A. 1052–53. And Simard — the man who led

the charge in firing Bendel — testified, as to the other

developers’ spreadsheet entries, “We didn’t care. It [didn’t]

matter.” J.A. 1053. Finally, VIP offered no evidence that it

has ever disciplined any other employee for using its digital

resources for purported “non-business purposes,” and certainly

not for such brief use on a single occasion.

Third, VIP claims that it fired Bendel for disseminating a

“misleading and confusing document” — conduct that VIP

implies falls outside the NLRA’s protection. Opening Br. 13.

Even if we assume that certain salary-sharing efforts might be

so “maliciously untrue” as to lose their protected status, the

Board determined that the spreadsheet at issue was not

“materially inaccurate.” J.A. 1740. Most notably, it found that

the “100% underpaid” notation was “a statement of opinion,

not an inaccurate statement of fact.” J.A. 1740 n.13. VIP offers

no basis for us to overturn the Board’s factual finding about the

spreadsheet’s accuracy.

Finally, VIP claims that it fired Bendel for his hostility

toward the company, as demonstrated by his messages with his

coworkers, his meetings with Graefe and McGinty, and his

disclosure that he had received other job offers. But VIP fired

Bendel before discovering his messages to coworkers, so those

messages could not have factored into his termination.

Moreover, even though Bendel’s meetings with his managers

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about the restructuring went poorly, neither Graefe nor

McGinty indicated in post-meeting discussions that they might

fire Bendel. To the contrary, McGinty expressed his hope that,

despite Bendel’s dissatisfaction with the restructuring,

“[Bendel] could play a role in planning it.” S.J.A. 5. And

Graefe accepted “some of the blame” for his poor discussion

with Bendel. Id. Further, despite Bendel’s disclosure that “he

had offers from other companies,” J.A. 851, VIP had planned

to give Bendel a specific role within the restructured company.

In sum, substantial evidence supports the Board’s

determination that Bendel’s termination was triggered by

management’s discovery of the salary-sharing spreadsheet.

Within about ninety minutes of discovering the spreadsheet,

VIP management disabled Bendel’s account, fired him, and

took down the spreadsheet. VIP’s contrary arguments rely on

an alternative view of the facts that the Board reasonably

rejected.

B. Gordon Dragoon, Kaleb Noble, and Kestrel Swift

VIP argues that we should vacate the Board’s findings in

favor of Dragoon, Noble, and Swift because the Board

“impermissibly found a violation based on uncharged

conduct.” Opening Br. 28. We agree.

“The Due Process Clause and the [Administrative

Procedure Act] require that an agency setting a matter for

hearing provide parties with adequate notice of the issues that

[will] be considered, and ultimately resolved, at that hearing.

This requirement ensures the parties’ right to present rebuttal

evidence on all matters decided at the hearing.” Pub. Serv.

Comm’n of Ky. v. FERC, 397 F.3d 1004, 1012 (D.C. Cir. 2005)

(cleaned up); see also 5 U.S.C. §§ 554(b), 556(d). But “it is

well settled that the Board may find and remedy a violation

even in the absence of a specified allegation in the complaint if

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the issue is closely connected to the subject matter of the

complaint and has been fully litigated.” Casino Ready Mix,

Inc. v. NLRB, 321 F.3d 1190, 1199–200 (D.C. Cir. 2003)

(cleaned up). Thus, where “the difference between the charge

made and the violation found . . . is small,” we will “not require

. . . the General Counsel to re-try the case.” Pergament United

Sales, Inc. v. NLRB, 920 F.2d 130, 136 (2d Cir. 1990).

Here, there are discrepancies between the conduct charged

in the complaint, and the determinations made by both the ALJ

and the Board. The General Counsel’s complaint alleged that

VIP fired Dragoon, Noble, and Swift for “engag[ing] in

concerted activities with each other and with other employees

for the purposes of mutual aid and protection, by creating and

disseminating a spreadsheet where employees could view and

share salary information.” J.A. 1258 (emphasis added). The

ALJ, however, found that VIP fired those three employees “for

their instant messaging chats about the spreadsheet and

Bendel’s termination,” noting that the messages were

“inextricably linked to their roles in creating and disseminating

the spreadsheet.” J.A. 1739. The Board took it a step further:

It “clarif[ied] that the relevant protected concerted activity that

[Dragoon, Noble, and Swift] engaged in and for which [VIP]

discharged them is their online chat communications about the

salary spreadsheet, workplace conditions, and frustration over

Bendel’s recent discharge.” J.A. 1733. The issue before us is

whether the ALJ and the Board permissibly relied on factors

that were “closely connected to the subject matter of the

complaint,” or instead unfairly considered issues for which VIP

lacked adequate notice. Casino Ready Mix, 321 F.3d at 1200

(citation omitted).

As to the ALJ’s ruling, we discern no error. The General

Counsel’s complaint alleged a violation based on VIP’s

response to the employees’ creation and dissemination of a

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salary-sharing spreadsheet. The ALJ expanded the relevant

conduct to encompass “instant messaging chats about the

spreadsheet and Bendel’s termination.” J.A. 1739. In the

ALJ’s words, those chats were “inextricably linked to

[Dragoon’s, Noble’s, and Swift’s] roles in creating and

disseminating the spreadsheet.” Id. We agree. When a group

of employees builds and circulates a spreadsheet, the

participants necessarily will discuss that common endeavor.

And when management fires one member of the group for his

actions related to that spreadsheet, his compatriots’ discussion

of what happened is an extension of the group’s collaboration

on the spreadsheet. The ALJ did not meaningfully change the

scope of the protected conduct alleged in the complaint when

he considered the employees’ messages about the spreadsheet

and Bendel’s termination, which were closely connected to the

creation and dissemination of the spreadsheet.

The Board, however, further enlarged the relevant conduct

to include “online chat communications about . . . workplace

conditions.” J.A. 1733. In so doing, the Board stretched the

charged conduct beyond its breaking point. “Workplace

conditions” is a far-reaching category that can encompass

anything from salaries to cafeteria options to interpersonal

office dynamics. The employees’ chats covered a wide range

of topics, some of which do not appear “closely connected to

the subject matter of the complaint” — i.e., salary sharing.

Casino Ready Mix, 321 F.3d at 1200 (citation omitted). The

Board’s invocation of those unrelated chats therefore violated

VIP’s due-process rights. See id. VIP did not have notice that

its employees’ discussion of workplace conditions might be

considered protected conduct at the hearing, and the company

therefore had no opportunity to rebut arguments to that effect.

See Pub. Serv. Comm’n of Ky., 397 F.3d at 1012.

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The NLRB’s claims to the contrary come up short.4 First,

the NLRB argues that all the employees’ “workplace

conditions” messages, no matter how seemingly unrelated to

their salary sharing, are “protected by association because

[they] occur[ed] within the context of protected conduct.” Oral

Arg. 1:11:09–15. But the Board did not cite this reasoning

below and therefore cannot raise it now. See SEC v. Chenery

Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an

administrative order must be judged are those upon which the

record discloses that its action was based.”); see also NLRB v.

CNN Am., Inc., 865 F.3d 740, 751 (D.C. Cir. 2017) (applying

Chenery to the NLRB).

Second, the NLRB suggests that the only “workplace

conditions” chats on which it relied were those that pertained

to salaries, Bendel’s firing, and other “closely connected”

topics. But nothing in the record makes that clear, and the

NLRB cannot rely on post hoc explanations to support its

order. See Chenery, 318 U.S. at 87. In any event, even if the

NLRB in fact relied only on “workplace conditions” chats

connected to salary sharing, its failure to explain that reasoning

when it rendered its decision was arbitrary and capricious. Cf.

Pub. Serv. Comm’n of Ky., 397 F.3d at 1012.

We need not set aside a Board decision based on an error

that did not prejudice the aggrieved party. See Davis

At the threshold, the NLRB argues that VIP has not preserved

its due-process argument: According to the NLRB, “VIP should

have filed a motion for reconsideration to preserve its objection.”

Response Br. 41. But before the Board, VIP argued that the ALJ had

“violated fundamental principles of due process” by treating the

employees’ “comments in the group chat” as protected. J.A. 1654–

55. That was sufficient to preserve VIP’s due-process claim for our

review.

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Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir.

1993). But here, the Board’s reference to uncharged conduct

was not harmless. In the proceedings below, VIP sought to

refute the complaint’s allegation that the company had

terminated Dragoon, Noble, and Swift for “creating and

disseminating a salary-sharing spreadsheet” by highlighting

the employees’ poor attitude, as evidenced by their

unprofessional messages to each other. For example, VIP

argued that those messages showed that the employees were

“‘on the verge of quitting’ and making a ‘pact’ to take another

developer with them, discussing ‘purging’ VIP computers, and

collaborating with individuals outside of VIP” to harm the

company. J.A. 1665–66.

Had VIP known that the Board might view some of those

messages as protected statements about “workplace

conditions,” VIP likely would have tailored its defense to rely

only on messages that the Board viewed as unprotected.

Alternatively, had VIP known that the Board might view all the

messages as protected conduct, VIP could “have expanded its

defense [beyond the messages] to emphasize and corroborate

the employees’ disloyalty and imminent plans to quit.”

Opening Br. 29. Specifically, VIP says that it “would likely

have called other employees as witnesses and introduced

additional evidence (including other chat transcripts)” that

were not before the Board. Id. at 30.

The Board’s eleventh-hour adoption of a “workplace

conditions” theory thus “preclude[d VIP] from effectively

presenting its case.” Midwest Terminals of Toledo Int’l, Inc. v.

NLRB, 783 F. App’x 1, 6 (D.C. Cir. 2019) (per curiam)

(citation omitted); see also Davis Supermarkets, 2 F.3d at 1169

(indicating that prejudice may exist where the Board’s reliance

on uncharged conduct prevents a company from advancing a

“significant defense”). Although the Board found that VIP’s

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concerns about purging computers, disseminating inaccurate

information, and using company technology were pretextual, it

did not draw any such conclusions about the employees’

discussions of quitting and of communicating with a former

employee. New arguments and evidence related to such

discussions therefore might have presented a significant

defense to the Board’s workplace-conditions theory.5

Because the Board prejudicially erred by citing “online

chat communications about . . . workplace conditions” as

protected conduct when the complaint did not charge such

conduct, J.A. 1733, we vacate the Board’s conclusion that VIP

engaged in unfair labor practices as to Dragoon, Noble, and

Swift, and remand their cases for further consideration

consistent with this opinion.

C. Bendel’s Remedies

VIP contests the Board’s order that the fired employees be

reinstated and “made whole” financially. Because we remand

for further proceedings as to Dragoon, Noble, and Swift, we

address only the remedies awarded to Bendel. We grant the

NLRB’s motion to enforce as to Bendel because (1) the Board

acted within its discretion when it ordered VIP to reinstate

Bendel to his former position, and (2) VIP has not preserved its

challenges to the make-whole financial remedy.

The NLRB also insists that VIP could not have suffered

prejudice because “VIP had the opportunity to, and did, litigate

claims that it fired [Dragoon, Noble, and Swift] for discussing the

spreadsheet, their workplace conditions, and Bendel’s termination.”

Response Br. 40. But that argument simply begs the question by not

engaging at all with the meaning of “workplace conditions.”

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1. Reinstatement

In fashioning a remedy for an unlawful labor practice, the

Board may “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).

We will uphold a reinstatement remedy “unless the employer

can show undue hardship.” Teamsters Local Union No. 171 v.

NLRB, 863 F.2d 946, 957 (D.C. Cir. 1988). Such hardship

exists, for example, where “compliance with the order is

unduly economically burdensome” or where the order “is a

patent attempt to achieve ends other than those which can fairly

be said to effectuate the policies of the” NLRA. Id. at 957–58

(citation omitted).

Here, VIP’s challenge to the Board’s order of

reinstatement relies on a single Second Circuit case that

overturned a reinstatement remedy under circumstances that

are readily distinguishable. See KBI Sec. Serv., Inc. v. NLRB,

91 F.3d 291, 295–96 (2d Cir. 1996). In KBI, the court

determined that a reinstatement order “would place an undue

burden on the employer” if the to-be-reinstated employees had

committed theft while at work. Id. at 292. The court remanded

the case so that the agency could develop the factual record

concerning whether the employees had committed the alleged

thefts. Id. at 296. As the Second Circuit later explained, where

an employee’s discharge was motivated by both a “proper”

reason (e.g., alleged theft) and an “improper” reason (e.g.,

illegal anti-union animus), the “proper” reason for discharge

can sometimes “render[] reinstatement an undue burden.”

NLRB v. G & T Terminal Packaging Co., 246 F.3d 103, 122

(2d Cir. 2001).

VIP asserts that KBI governs because, “just as a security

company [like KBI] should not have to reinstate a thief for risk

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of reputational harm, a software company should not have to

restore [a] disloyal and untrustworthy engineer[].” Opening

Br. 46 (cleaned up). But even if we assume that KBI’s

reasoning is persuasive, VIP’s argument fails because it is

premised on a factual claim that the Board did not credit — i.e.,

that Bendel was terminated, at least in part, for being “disloyal

and untrustworthy.” As explained supra section IV.A, the

Board reasonably rejected VIP’s arguments concerning

Bendel’s alleged disloyalty and untrustworthiness as entirely

pretextual. Thus, unlike in KBI, VIP had no “proper reason” to

terminate Bendel. See G & T Terminal Packaging, 246 F.3d at

122 (explaining that KBI applies when an employee is

discharged for “both a proper reason . . . and an improper

reason”).

VIP also argues that the remedy is improper because

Bendel quickly found a new job and because the Board made

no finding that Bendel desired reinstatement. That argument is

unpersuasive because it fails to acknowledge the Board’s goal

of “effectuat[ing] the policies of the” NLRA. 29 U.S.C.

§ 160(c). VIP illegally terminated Bendel, and an offer of

reinstatement directly addresses that wrong, even if Bendel

ultimately declines to return to VIP. A contrary ruling would

undermine the purpose of the NLRA, see id. § 151, by

disadvantaging Bendel for seeking new employment. We

“extend broad deference to the Board’s choice of remedies,”

and we will “upset the Board’s choice of how best to effectuate

the policies of the” NLRA “only when a remedy is clearly

inadequate.” Microimage Display Div. of Xidex Corp. v.

NLRB, 924 F.2d 245, 254 (D.C. Cir. 1991) (cleaned up). VIP

has not made the requisite showing here.

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2. Make-Whole Financial Remedy

“One important policy goal [of the NLRA] is to achieve a

restoration of the situation, as nearly as possible, to that which

would have obtained but for the illegal discrimination.” King

Soopers, Inc. v. NLRB, 859 F.3d 23, 38 (D.C. Cir. 2017)

(cleaned up). To advance that goal, the Board often orders

employers to “make whole” wrongfully discharged

employees — i.e., by giving them backpay and by reimbursing

certain expenses, historically identified on a case-by-case

basis. See id.; see also NLRB v. Strong, 393 U.S. 357, 359

(1969) (“Making the workers whole for losses suffered on

account of an unfair labor practice is part of the vindication of

the public policy which the Board enforces.” (cleaned up)).

In its 2022 decision in Thryv, the Board adopted a new

formulation of its make-whole remedy. See 2022 WL

17974951, at *9, *21 n.14. Prior to Thryv, in order to “ensure[]

affected employees [were] made whole for the consequences

of a respondent’s unlawful conduct,” the Board typically

ordered the respondent to provide backpay; and it sometimes

would consider whether the respondent should also

compensate employees for other related costs, such as

reasonable search-for-work expenses. Id. at *9–10. Thryv

standardized the Board’s practice by establishing “that in all

cases in which our standard remedy would include an order for

make-whole relief, the Board will expressly order that the

respondent compensate affected employees for all direct or

foreseeable pecuniary harms suffered as a result of the

respondent’s unfair labor practice.” Id. at *9 (emphasis in

original). Thryv also explained that respondents should

reimburse such “direct or foreseeable pecuniary harms”

“without regard to a discriminatee’s interim earnings.” Id. at

*9, *21 n.14. In other words, an employee must receive

compensation for all direct or foreseeable pecuniary harms,

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even if his interim employment pays more than he would have

earned in his former job — which means that the employee

theoretically could end up better off than he would have been

had he not been wrongfully terminated.

Citing Thryv, the ALJ ordered VIP to compensate Bendel

“for all direct or foreseeable pecuniary harms that [he] suffered

as a result of [VIP’s] unfair labor practices, regardless of

whether these expenses exceed interim earnings.” J.A. 1740–

41. VIP challenged this remedy in its exceptions to the ALJ’s

decision. In a section entitled, “The proposed remedies are

unreasonably burdensome and punitive,” VIP devoted a

paragraph to the make-whole remedy. J.A. 1674, 1677. In full,

that paragraph read:

The ALJ appears to have ordered remedies that

impermissibly exceed make-whole remedies.

The [ALJ] proposes that VIP be ordered to

compensate the charging parties “for any loss”

of benefits and “for all direct or foreseeable

pecuniary harms that they suffered as a result of

Respondent’s unfair labor practices, regardless

of whether those expenses exceed interim

earnings.” If the ALJ proposes ordering

compensation for a loss of net salary and

benefits even if their net salary and benefits

from their new employment exceeds what they

would have received had they remained at VIP,

that is not a “make whole” remedy authorized

by the Act. It would provide the charging

parties with an unwarranted and unauthorized

windfall and impose a punitive and unlawful

penalty on VIP that is inconsistent with the

remedial purposes of the remedies authorized

by the Act.

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J.A. 1677 (cleaned up).

As this paragraph makes clear, VIP’s argument below

amounted to a claim that the four employees would receive a

“windfall.” See King Soopers, 859 F.3d at 39 (describing the

contention that “a financial windfall” exists where “a

claimant’s interim earnings [from his new employment] equal

or exceed the sum of his lost earnings and employment-search

expense”). The Board rejected that argument and upheld the

ALJ’s make-whole remedy, ordering VIP to “compensate [the

four employees] for any other direct or foreseeable pecuniary

harms incurred as a result of the unlawful termination of their

employment, including reasonable search-for-work and

interim employment expenses, if any, regardless of whether

these expenses exceed interim earnings.” J.A. 1734.

In its petition for review, VIP abandons the “windfall”

argument that it advanced below and instead launches a

broadside attack against the Thryv remedy. It claims that the

“expansive Thryv remedy is no longer an equitable ‘make

whole’ remedy” but rather a form of “compensatory damages,”

which the NLRB supposedly lacks the statutory authority to

award. Opening Br. 49. To support that assertion, VIP devotes

eleven pages of briefing to arguments drawing on statutory

language, legislative history, an analogy to Title VII, and the

constitutional-avoidance doctrine.

VIP advanced none of those arguments below and

therefore has not preserved its facial challenge to the Thryv

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

been urged before the Board . . . shall be considered by the

court . . . [absent] extraordinary circumstances.”). Under

§ 160(e), “the critical inquiry is whether the objections made

before the Board were adequate to put the Board on notice that

the issue might be pursued on appeal.” Consol. Freightways v.

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NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981). Applying that

standard, we have consistently disclaimed jurisdiction when a

party objects to a given action (e.g., a remedy) before the Board

and then presents a different objection to the same action before

this court. See, e.g., DHL Express, Inc. v. NLRB, 813 F.3d 365,

372 (D.C. Cir. 2016) (distinguishing between an argument

challenging the “validity of [a] presumption” and one

challenging the “application of that presumption”); Stephens

Media, LLC v. NLRB, 677 F.3d 1241, 1254–55 (D.C. Cir.

2012); Majestic Star Casino, LLC v. NLRB, 373 F.3d 1345,

1349 (D.C. Cir. 2004) (“[T]he company put forward [a] wholly

distinct argument [below.]”).

Before the Board, VIP advanced an argument that the

remedy in this case provided Bendel with an unjustifiable

“windfall.” It did not mention “Thryv,” “legislative history,”

“Title VII,” or “constitutional avoidance” in any of its filings.

In other words, VIP did “not challenge the Board’s standard

remedial language” from Thryv; “instead, it argue[d] that, for

case-specific reasons, a particular remedy should not be

imposed.” Logmet, LLC v. NLRB, No. 21-1273, 2022 WL

15603866, at *1 (D.C. Cir. Oct. 28, 2022). VIP may not assert

for the first time before this court that the Board’s earlier

decision in Thryv violates the NLRA. We lack authority under

§ 160(e) to consider that unpreserved argument.

Our dissenting colleague resists our straightforward

application of § 160(e). In so doing, he relies heavily on a

single case: Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085

(D.C. Cir. 2016). That decision took a generous approach to

issue preservation, but it is not comparable to what happened

here. In Camelot Terrace, the petitioner made arguments

before the Board and before this court expressly challenging

the Board’s asserted authority to award “bargaining costs.” Id.

at 1090–91.

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But here, as discussed, VIP did not alert the Board to any

general challenge to the Thryv remedy and did not even

mention Thryv in its Board filings. Even if VIP characterized

the specific remedy in this case as “unreasonably burdensome

and punitive” and “impermissibly exce[ssive]” — as our

dissenting colleague emphasizes — that did not preserve a

facial challenge to the Thryv remedy. VIP simply did not “put

the Board on notice that the [Thryv] issue might be pursued on

appeal.” Consol. Freightways, 669 F.2d at 794.

In our view, other cases are more on point than Camelot

Terrace. For example, in Advancepierre Foods, Inc. v. NLRB,

we held that we lacked jurisdiction over the petitioner’s

“frontal attack on Board precedent” where the petitioner had

not “challenge[d that precedent] before the Board” but had

instead focused on case-specific, fact-bound issues. 966 F.3d

813, 819 (D.C. Cir. 2020); see also id. (“Because

AdvancePierre’s frontal attack on Board precedent was never

made to the Board and extraordinary circumstances do not

excuse its failure, we cannot reach this argument.”).6 And in

Enterprise Leasing Co. of Florida v. NLRB, we disclaimed

jurisdiction over the argument that a type of remedy was

categorically “impermissibly punitive or otherwise unlawful”

where the petitioner previously had pressed only a fact-bound

The dissent argues that Advancepierre is off point because the

petitioner there “had implicitly” affirmed the Board precedent that it

later challenged in this court. Dissenting Op. 12 n.47. Though

Advancepierre observed in a footnote the petitioner’s prior “support

of the ALJ’s decision applying [the Board precedent at issue],” it did

not emphasize, or rest its holding on, that observation. 966 F.3d at

819 n.6. Instead, Advancepierre explained that the petitioner had

only “made passing reference” to its unpreserved appellate argument

before the Board, id. — the exact basis on which the dissent here

proposes to hold VIP’s appellate argument preserved.

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challenge to a particular application of that remedy (i.e.,

contesting “the dates of its . . . obligations” under the remedy).

831 F.3d 534, 550–51 (D.C. Cir. 2016) (emphasis added).7

3. Constitutional Challenge to the Make-Whole Remedy

In its petition for review, VIP also argues that Thryv’s

formulation of the required remedy treats the underlying

dispute as a private-rights claim, which, under the Seventh

Amendment, may be addressed only by Article III courts. See

SEC v. Jarkesy, 603 U.S. 109, 127–28 (2024). We lack

jurisdiction to resolve this unpreserved challenge — even VIP

concedes that it “did not directly raise” this argument before

the Board. Opening Br. 54. We are unconvinced by VIP’s

contention that Jarkesy constitutes an “intervening change in

the law” that excuses its failure to preserve its claim. Id. at 54–

55; see also Stoiber v. SEC, 161 F.3d 745, 754 (D.C. Cir. 1998)

(“The failure to raise an issue in a prior forum is excusable

when due to an intervening change in the law . . . .”). The

Supreme Court decided Jarkesy in June 2024, and the Board

did not issue its opinion below until November 2024. Thus,

VIP could have brought Jarkesy to the Board’s attention as

supplemental authority while the case was pending, or VIP

could have moved for reconsideration or rehearing based on

Jarkesy. See 29 C.F.R. §§ 102.6, 102.48 (2024). VIP’s failure

to do so renders us “jurisdictionally barred from considering”

In critiquing our reliance on Enterprise Leasing, the dissent

focuses on an inapposite portion of that opinion addressing the

petitioner’s exceptions to the ALJ’s decision. That discussion was

distinct from Enterprise Leasing’s holding, which turned instead on

the petitioner’s attempt to press in this court a categorical, facial

objection to the remedy imposed when it had not made any such

objection before the Board in response to the “General Counsel’s

exceptions that first requested” the remedy. 831 F.3d at 550–51.

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the argument now. NLRB v. Chipotle Servs., LLC, 849 F.3d

1161, 1162 & n.3 (8th Cir. 2017).

VIP also contends that we should forgive its failure to raise

a Seventh Amendment challenge below because doing so

“would [have been] futile because of certainty of an adverse

decision.” Randolph-Sheppard Vendors of Am. v. Weinberger,

795 F.2d 90, 105 (D.C. Cir. 1986) (cleaned up). But futility is

a high bar, and VIP fails to identify “a very clearly articulated

agency position” applying Jarkesy’s holding in the present

context. KPMG, LLP v. SEC, 289 F.3d 109, 118 (D.C. Cir.

2002). We thus cannot consider VIP’s Seventh Amendment

argument. See 29 U.S.C. § 160(e).

For the foregoing reasons, we deny VIP’s petition for

review and grant the NLRB’s cross-application for

enforcement as to employee Christopher Bendel. We grant

VIP’s petition for review and deny the NLRB’s crossapplication for enforcement as to employees Gordon Dragoon,

Kaleb Noble, and Kestrel Swift. We remand for further

proceedings consistent with this opinion.

So ordered.

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WALKER, Circuit Judge, concurring in part and dissenting in

part:

The National Labor Relations Board concluded that

Vermont Information Processing unlawfully fired Christopher

Bendel for engaging in protected concerted activity. The

NLRB’s remedy included compensation for “direct or

foreseeable pecuniary harms incurred . . . , including

reasonable search-for-work and interim employment expenses,

if any, regardless of whether these expenses exceed interim

earnings.”1 VIP argues the NLRB does not have the statutory

authority to make that award. I agree and would vacate that

part of the NLRB’s order.

I. The Pecuniary-Harms Remedy Exceeds the NLRB’s

Remedial Authority Under § 10(c)

A. NLRB Remedies After Thryv

Before 2022, the NLRB’s remedies typically centered on

reinstatement and backpay. The Supreme Court has made clear

that, in this context, those are equitable remedies. 2

Then, in 2022, the NLRB decided Thryv, Inc. It

announced that the standard make-whole remedy going

forward would include compensation “for all direct or

JA 1734.

See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 901 (1984) (describing

backpay awards under the National Labor Relations Act as

“equitable”); Curtis v. Loether, 415 U.S. 189, 197 (1974) (“In Title

VII cases the courts of appeals have characterized back pay as an

integral part of an equitable remedy, a form of restitution.”); see also

Bowen v. Massachusetts, 487 U.S. 879, 893 (1988) (describing “an

order providing for the reinstatement of an employee with backpay”

as “an equitable action for specific relief”). But cf. infra, note 12.

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foreseeable pecuniary harms suffered as a result of [an] unfair

labor practice.”3

Thryv gave examples of what these harms might include:

“interest and late fees on credit cards, or penalties if [an

employee] must make early withdrawals from her retirement

account in order to cover her living expenses,” loss of the

employee’s car or home “if she is unable to make loan or

mortgage payments,” and “increased transportation or

childcare costs.”4

In all, the “pecuniary harms” category appears to function

as a catch-all to compensate employees for any extra expenses

they may incur due to the loss of a job and paycheck. If the

employee was unable to make credit-card payments, the

employer is responsible for the late fees. If the employee loses

a home or car for the same reason, the employer must pay

whatever it takes to compensate for those losses.

Thryv remedies differ from the NLRB’s traditional

remedies in an important formal way. Whereas the traditional

remedies are equitable, Thryv remedies require the employer to

pay legal damages.

Let’s unpack that, beginning with a classic case that

awarded an equitable remedy. Zehmer contracted to sell a farm

to Lucy. Zehmer breached. The court did not order Zehmer to

pay damages, which would be a legal remedy. Instead, the

372 NLRB No. 22, slip op. at 13 (Dec. 13, 2022).

Id. at 9 (quoting Voorhees Care & Rehabilitation Center, 371

NLRB No. 22, slip op. at 4 n.14 (2021)).

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court ordered Zehmer to sell Lucy the farm — an equitable

remedy.5

In contrast, Thryv authorizes a version of consequential

damages.6 Here again, consider a classic case. When

Baxendale delayed the reopening of Hadley’s mill by failing to

deliver an essential crankshaft, Baxendale was liable for

damages that either arose naturally from the breach in the

ordinary course of events or were reasonably within both

parties’ contemplation at the time of contracting. 7 The case

stands for the proposition that in some situations a plaintiff can

recover for “direct and foreseeable” harms — “a quintessential

form of legal damages.”8

In today’s case, the NLRB ordered VIP to reinstate

Christopher Bendel and give him backpay — equitable relief

long understood to be authorized by the National Labor

Relations Act. But the NLRB also ordered VIP to pay

Christopher Bendel “for any other direct or foreseeable

See Lucy v. Zehmer, 196 Va. 493, 504 (1954) (“generally, where a

contract is in its nature and circumstances unobjectionable, it is as

much a matter of course for courts of equity to decree a specific

performance of it as it is for a court of law to give damages for a

breach of it”).

See 3484, Inc. v. NLRB, 137 F.4th 1093, 1121 (10th Cir. 2025) (Eid,

J., concurring in part and dissenting in part) (“Congress has never

authorized the Board to award . . . tort-like legal damages”); id.

(calling the standard Thryv remedy “an award of compensatory and

consequential damages” regardless of “how the Board labels it”).

Hadley v. Baxendale, 9 Exch. 341 (Eng. 1854); see also Remedy,

Black’s Law Dictionary (12th ed. 2024) (describing an award of

damages as the typical legal remedy).

Trader Joe’s Co. v. NLRB, 167 F.4th 766, 801–02 (5th Cir. 2026)

(Oldham, J., dissenting).

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pecuniary harms incurred.”9 That Thryv award converted the

NLRA’s equitable remedial scheme into a general

compensatory-damages regime.

B. The Scope of § 10(c)’s Remedial Grant

By passing the National Labor Relations Act, “Congress

did not establish a general scheme authorizing the Board to

award full compensatory damages for injuries caused by

wrongful conduct.”10 On the contrary, § 10(c) defines the

NLRB’s remedial authority in familiar equitable terms.

Section 10(c) provides that if the NLRB finds that a person

“has engaged in or is engaging in [an] unfair labor practice,”

the NLRB “shall issue and cause to be served on such person

an order requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative action

including reinstatement of employees with or without back

pay, as will effectuate the policies of this subchapter.”11

For four reasons — and a fifth if you look to legislative

history — § 10(c) does not authorize compensatory relief for

other losses flowing from an employer’s wrongdoing.

First, the text refers only to equitable relief. It lists two

examples of the “affirmative action” the NLRB may take:

reinstatement and backpay, both classic forms of equitable

relief according to Supreme Court and D.C. Circuit

JA 1734.

UAW-CIO v. Russell, 356 U.S. 634, 643 (1958).

29 U.S.C. § 160(b), (c) (emphases added).

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precedent.12 It does not mention legal relief, whether damages

or otherwise. So although these two specific equitable

remedies do not exhaust the NLRB’s remedial tools,13 they

See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187–88, 188 n.6

(1941) (implying that reinstatement is a form of “equitable relief”);

Hubbard v. EPA, 949 F.2d 453, 462–66 (D.C. Cir. 1991) (treating

reinstatement and backpay as equitable relief restoring the position

and its pay); see also Curtis, 415 U.S. at 197 (treating “backpay as

an integral part of an equitable remedy” at least in the context of

Title VII).

I do not mean to suggest that all restitutionary remedies, like

backpay, are by their very nature equitable. Cf. id. (calling backpay

“a form of restitution”). On the contrary, the Supreme Court has

rightly rejected that. See Great-West Life & Annuity Insurance Co.

v. Knudson, 534 U.S. 204, 212 (2002) (“[N]ot all relief falling under

the rubric of restitution is available in equity. In the days of the

divided bench, restitution was available in certain cases at law, and

in certain others in equity.”). So if we were writing on a clean slate,

we might look to the type of restitutionary remedy at issue to

determine whether it is legal or equitable. See Samuel L. Bray, The

System of Equitable Remedies, 63 UCLA L. Rev. 530, 541–42

(2016); John H. Langbein, What ERISA Means by “Equitable,” 103

Colum. L. Rev. 1317, 1357–58 (2003) (discussing subrogation);

Restatement (Third) of Restitution and Unjust Enrichment § 4 cmt. d

(Am. L. Inst. 2011) (discussing methods for distinguishing legal and

equitable restitution).

Here, though, we do not write on a clean slate. In the context of

the NLRA, the Supreme Court has already decided that backpay is

an equitable remedy. See Sure-Tan, Inc., 467 U.S. at 901. That is

enough for today.

See Phelps Dodge, 313 U.S. at 188–89 (a list that begins with

“including” is illustrative, not limited to the items in the list).

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illustrate the exclusively equitable character of the broader

category.14

Second, the rest of § 10(c) confirms the broader category’s

equitable character. Cease-and-desist orders function like

injunctions.15 Affirmative-action remedies likewise operate

like mandatory injunctions.16 And the NLRB’s remedial

authority is discretionary17 — a traditional feature of equity.18

So taken together, the statute authorizes equitable, restorative

relief: remedies that “recreate the conditions and relationships

that would have been had there been no unfair labor practice.” 19

See, e.g., United States v. Brock, 94 F.4th 39, 57 (D.C. Cir. 2024)

(an “illustrative list illustrates what type of conduct is encompassed

by the definition, and so other unlisted forms of conduct must fit that

same mold”).

See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945).

See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 177 n.4

(1973). Though mandamus, a legal remedy, may also order actors to

take certain actions, the Supreme Court has indicated that the

NLRA’s affirmative-action remedies are equitable remedies. See

Phelps Dodge, 313 U.S. at 187–88, 188 n.6.

Phelps Dodge, 313 U.S. at 197–98.

American Federation of Labor v. Watson, 327 U.S. 582, 593

(1946) (“The power of a court of equity to act is a discretionary

one.”).

Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1092–93 (D.C.

Cir. 2016) (quoting Franks v. Bowman Transportation Co., Inc., 424

U.S. 747, 769 (1976); see also Phelps Dodge, 313 U.S. at 194

(“compensation for the loss of wages” and “offers of employment to

the victims of discrimination” serve to “restor[e] . . . the situation, as

nearly as possible, to that which would have obtained but for the

illegal discrimination”).

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Third, the structure of § 10(c) confirms the same limit by

barring only reinstatement and backpay for employees

“suspended or discharged for cause.”20 The statute would not

bar only those two remedies if an employee could be denied

backpay but recover potentially larger sums through catch-all

compensation for all foreseeable downstream financial harms.

Fourth, this approach better accords with the Supreme

Court’s understanding of the remedial provision in Title VII,

and the Court interprets that provision in line with § 10(c) of

the NLRA.21 Even Title VII’s broader language — authorizing

reinstatement, backpay, “or any other equitable relief” — did

not permit compensatory damages until Congress amended the

statute in 1991 to authorize them expressly.22 If that broader

statute did not authorize compensatory damages, neither does

this narrower one.23

Fifth, for any die-hards who still care a lot about legislative

history, an early draft of the NLRA authorized the NLRB “to

take affirmative action, or to pay damages, or to reinstate

employees.”24 Then, during committee hearings, critics argued

29 U.S.C. § 160(c).

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

849 (2001).

See Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat.

1072 (codified at 42 U.S.C. § 1981a); United States v. Burke, 504

U.S. 229, 238 (1992) (“Title VII [as applied prior to the Civil Rights

Act of 1991] does not allow awards for compensatory or punitive

damages”).

See Franks, 424 U.S. at 769 n.29 (“To the extent that there is a

difference in the wording of the respective provisions, § 706(g)

grants, if anything, broader discretionary powers than those granted

the National Labor Relations Board.”).

S. 2926, 73d Cong. § 205(c) (as introduced March 1, 1934).

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that allowing the NLRB to award damages without defined

standards raised “due process” concerns. 25 Finally, Congress

enacted the statute with the monetary “damages” authority

omitted.

As the Supreme Court explained long ago, the NLRA does

not authorize the NLRB “to award full compensatory damages

for injuries caused by wrongful conduct.”26 Rather, Congress

drew a line between equitable and legal relief, and it opted for

only the former.27 By authorizing the NLRB to issue both,

Thryv crosses the boundary that Congress drew — a

conclusion that the Third Circuit reached in Starbucks, that the

Fifth Circuit reached in Hiran Management, that Judge Eid

reached in 3484, and that Judge Oldham reached in Trader

Joe’s.28

To Create a National Labor Board: Hearing on S. 2926 Before the

Senate Committee on Education & Labor, 73d Cong. 362 (1934)

(statement of James A. Emery) (“The Board may not only issue an

order in the light of the complaint, it may do many more things, it

may assess and require the employer to pay damages for which no

rule is established; require the reinstatement of employees, or require

any act which in its opinion achieves substantial justice, whatever

that may be. The Board determines that. If that be due process of

law, God save us.”).

UAW-CIO, 356 U.S. at 643.

If Congress had authorized the NLRB to award legal damages, the

Seventh Amendment would require a jury trial for claims seeking

legal relief that are analogous to traditional common-law actions.

See SEC v. Jarkesy, 144 S. Ct. 2117, 2130 (2024). But VIP forfeited

its argument that a Thryv remedy violates the Seventh Amendment

by not raising that argument before the NLRB.

See NLRB v. Starbucks Corp., 125 F.4th 78, 95–97 (3d Cir. 2024);

Hiran Management., Inc. v. NLRB, 157 F.4th 719, 725–29 (5th Cir.

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B. King Soopers

In King Soopers, Inc. v. NLRB, this court held that the

NLRB can restore employees “as nearly as possible” to the

position they would have occupied absent the unfair labor

practice by reimbursing them for search-for-work and interimemployment costs.29 There, the costs arose directly from the

employee’s duty to mitigate lost wages,30 and the NLRB

justified their reimbursement by analogy to other employmentrelated losses that it has long compensated separately from

backpay, such as medical expenses and retirement

contributions.31 King Soopers concluded that when those

expenses represent a distinct injury caused by the unlawful

discharge, reimbursing them can permissibly produce an award

that exceeds the backpay calculation. 32

Whatever may be the faults of the NLRB’s

unprecedented33 expansion of make-whole relief in King

2025); see also 3484, Inc., 137 F.4th at 1125–27 (Eid, J., concurring

in part and dissenting in part); Trader Joe’s, 167 F.4th at 801–02

(Oldham, J., dissenting) (“The Thryv remedy is unlawful. . . .

Foreseeable pecuniary harms are a quintessential form of legal

damages.”); but see International Union of Operating Engineers,

Stationary Engineers, Local 39 v. NLRB, 155 F.4th 1023, 1052–53

(9th Cir. 2025) (upholding the NLRB’s authority to award

foreseeable pecuniary harms when those awards are limited to makewhole remedies).

859 F.3d 23, 36–39 (D.C. Cir. 2017) (quoting Phelps Dodge, 313

U.S. at 194).

Id. at 37.

Id. at 38.

Id. at 38–39.

See King Soopers, Inc., 364 NLRB 1153, 1160 (2016) (“we adopt

a new policy of awarding search-for-work and interim employment

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Soopers,34 that expansion at least confined the remedy to a

limited category of mitigation-related expenses tied to the

employment contract. When this court reviewed that decision,

it had no occasion to decide whether the NLRB can award

broader categories of pecuniary damages.

To put it all together, an award for pecuniary harms is a

compensatory-damages award. Congress did not authorize the

NLRB to order those awards. This court did not say otherwise

in King Soopers. We should say so now and hold that the

NLRB exceeded its authority when it ordered VIP to

compensate Christopher Bendel “for all direct or foreseeable

pecuniary harms.”

II. VIP’s Challenge to the NLRB’s Statutory Remedial

Authority Is Properly Before Us

In the majority’s view, VIP did not argue before the NLRB

that a Thryv remedy exceeds the NLRB’s statutory authority.

On that basis, the majority declines to address the merits of

VIP’s challenge. I disagree. VIP “specifically objected in its

exceptions” to the Thryv remedy.35

expenses regardless of discriminatees’ interim earnings and

separately from taxable net backpay, with interest”).

See id. at 1166 (Miscimarra, dissenting) (“my colleagues’ new

method for calculating backpay exceeds our statutory authority”); id.

at 1167 (“the changes adopted by my colleagues may produce a

substantial increase in contentious disputes over employment/search

expenses, and these disputes, in all cases, are likely to delay the

availability of any monetary remedies for employee-claimants”).

Parsippany Hotel Management Co. v. NLRB, 99 F.3d 413, 418

(D.C. Cir. 1996) (cleaned up); see also DHL Express, Inc. v. NLRB,

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In its exceptions, VIP objected to the ALJ’s proposal to

award compensation “for all direct or foreseeable pecuniary

harms . . . regardless of whether those expenses exceed interim

earnings.”36 Not only does that language precisely describe the

Thryv remedy, it quotes a part of the ALJ’s proposal that

followed this language with a citation to Thryv itself.37 In

addition, VIP’s “brief in support of its exceptions adequately

put the Board on notice” of its objection.38 That brief includes

a section titled “The proposed remedies are unreasonably

burdensome and punitive.”39 With VIP’s specific objection

to “foreseeable pecuniary harms” under a section heading

objecting to “punitive” remedies, VIP put the NLRB on notice

of its objection to the Thryv remedy.40

To be sure, VIP’s examples focused on the risk of a

windfall — pointing to the possibility that backpay or

retirement benefits could overcompensate employees who had

already secured higher-paying jobs. But VIP’s illustrations do

not represent the full extent of VIP’s argument.41 That

813 F.3d 365, 372 (D.C. Cir. 2016) (explaining that that is enough to

preserve an issue for appeal).

JA 1677.

True, VIP didn’t state that it was challenging the Thryv decision

by name. But that does not matter. Preservation under Section 10(e)

turns on notice of the objection, not on citation to the precedent the

NLRB would likely rely on to defend the award.

Parsippany Hotel, 99 F.3d at 418 (cleaned up); see also DHL

Express, 813 F.3d at 372.

JA 1623, 1674.

Consolidated Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir.

1981) (requiring only that the objection be “evident by the context in

which it is raised”).

JA 1677 n.25 (“As one example . . .”).

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argument goes like this: The proposed award exceeded the

NLRB’s statutory authority (to award equitable relief) because

the proposed remedies are “punitive” (legal damages

language), and an award of “foreseeable pecuniary harms”

(more damages language) is part of the problem. 42

Would the question be easier if VIP had referred expressly

to Thryv? I suppose. But the NLRB “received adequate notice

of the basis for the objection.”43 And our court has not required

a party to frame objections with exacting detail, technical

precision, or citations to the precise precedent that it wants

reconsidered.44

VIP’s argument was no less developed than the argument

that was preserved in Camelot Terrace, Inc. v. NLRB. In that

case, a heading said, “The Board Lacks Authority to Award

Litigation Expenses and Bargaining Costs.”45 This court held

that the heading adequately alerted the NLRB to a challenge to

its statutory remedial authority, even though the supporting

argument was “no paragon of precision or detail.”46 So too

today.47

See Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940) (“We

have said that the power to command affirmative action is remedial,

not punitive.”).

Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir.

2016) (quoting Alwin Manufacturing Co. v. NLRB, 192 F.3d 133,

143 (D.C. Cir. 1999)).

See, e.g., id. at 1090–91.

Id. at 1091 (emphasis omitted).

Id. at 1090–91 (cleaned up).

The majority compares this to two other cases — one that is truly

“not comparable,” and another that favors VIP.

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III. VIP’s Objection Is Ripe

By awarding monetary relief that exceeds interim

earnings, the NLRB’s order imposes a final, binding obligation

on VIP.48 In response, VIP makes a purely legal argument:

Section 10(c) does not permit the NLRB to impose an award

In Advancepierre Foods, Inc. v. NLRB, the ALJ had applied the

precedent in question (Mohawk) in the petitioner’s favor and the

petitioner

accepted

that

framework

before

the

NLRB — “support[ing] , , , the ALJ’s decision applying Mohawk in

its favor.” 966 F.3d 813, 819 n.6 (D.C. Cir. 2020). It makes sense

that this court would not then entertain the petitioner’s facial

challenge to Mohawk after the petitioner had implicitly affirmed that

decision before the NLRB and won on that point. Cf. New

Hampshire v. Maine, 532 U.S. 742, 749 (2001) (discussing the rule

of judicial estoppel which “prevents a party from prevailing in one

phase of a case on an argument and then relying on a contradictory

argument to prevail in another phase” (cleaned up)). VIP has never,

in any way, argued that Thryv applies favorably to its situation. It

challenged its foundational premise — that the NLRB has authority

to award pecuniary harms — from the start.

In Enterprise Leasing Co. of Florida v. NLRB, the court explained

Enterprise’s failure this way: “Nowhere in any of its filings in the

proceedings below did Enterprise argue that it was impermissibly

punitive or otherwise unlawful for the Board to prevent Enterprise

from collecting from its employees the dues it had failed to pay to

the Union.” 831 F.3d 534, 550 (D.C. Cir. 2016). The “recoupment

bar” Enterprise challenged there was not even a part of the ALJ’s

proposed remedy that Enterprise challenged before the NLRB. Id.

Every part of that description cuts the other way here. By the very

logic of Enterprise Leasing, VIP put the NLRB on notice of its

objection to the Thryv remedy.

JA 1734 (ordering VIP to pay employees for “any other direct or

foreseeable pecuniary harms . . . regardless of whether these

expenses exceed interim earnings”).

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that exceeds its equitable make-whole authority. That purely

legal challenge to a final, binding order is ripe for review. 49

True, we don’t yet know the amount of VIP’s liability. But

the NLRB has already imposed the disputed obligation as part

of its final order — to pay Christopher Bendel, among other

things, “for any other direct or foreseeable pecuniary harms.”50

In that situation, when a remedy is “objectionable on its face,” 51

courts routinely review such challenges to the NLRB’s

remedial authority on direct petition.52 And we should do so

here, where the issue is not how much VIP will ultimately owe,

but whether the Act authorizes the NLRB to impose this

category of relief at all — a question no future factual

development can affect.

Natural Resources Defense Council v. EPA, 643 F.3d 311, 320

(D.C. Cir. 2011) (“because the Guidance is final, and because the

issue raised by [the petitioner] is purely legal, the question before us

is fit for judicial review”).

JA 1734.

Scepter, Inc. v. NLRB, 448 F.3d 388, 391 (D.C. Cir. 2006).

See Republic Steel Corp. v. NLRB, 311 U.S. 7, 12–13 (1940)

(reviewing NLRB authority to impose a remedy requiring payments

to governmental agencies); Camelot Terrace, Inc. v. NLRB, 824 F.3d

1085, 1089–91 (D.C. Cir. 2016) (reviewing authority to impose

bargaining-costs remedy without awaiting compliance).

Notwithstanding my disagreement with the Court’s conclusion that

review should await compliance, I agree that VIP must be permitted

to renew the challenge in a later petition for review if the NLRB

enforces relief that exceeds the King Soopers benchmark. We cannot

tell VIP that its claim is premature now if we would call it forfeited

later.

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IV. Conclusion

The NLRB ordered recovery for “any . . . direct or

foreseeable pecuniary harms.”53 Because that provides for

compensatory damages unauthorized by § 10(c) of the NLRA,

I respectfully dissent from the majority’s decision not to vacate

that portion of the order.54

JA 1734.

Though I think the question is close, this court’s NLRA precedents

require us to deny VIP’s challenge to the NLRB’s conclusion that

Christopher Bendel was unlawfully fired. So I join the majority’s

decision to deny that part of VIP’s petition. I also join the majority’s

decision to vacate the NLRB’s award for the three other employees

fired by VIP.

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NOTICE: This opinion is subject to formal revision before publication in the

bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.

20570, of any typographical or other formal errors so that corrections can

be included in the bound volumes.

Vermont Information Processing, Inc. and Christopher Bendel and Gordon Dragoon and Kaleb Noble and Kestrel Swift. Case 03–CA–301055

November 5, 2024

DECISION AND ORDER

BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY

AND WILCOX

On July 31, 2023, Administrative Law Judge Arthur J.

Amchan issued the attached decision. The Respondent

filed exceptions and a supporting brief, the General

1 The Respondent has requested oral argument. The request is denied,

as the record, exceptions, and briefs adequately present the issues and the

positions of the parties.

2 The General Counsel moves to strike the Respondent’s brief in support of its exceptions on the ground that it fails to comply with the

Board’s Rules and Regulations in that it does not contain references to

the specific exceptions to which its arguments relate. Although the Respondent’s brief does not comply in all particulars with Sec.

102.46(a)(2), we accept it because the Respondent’s brief is otherwise

substantially compliant. See, e.g., Michael Cetta, Inc. d/b/a Sparks Restaurant, 366 NLRB No. 97, slip op. at 1 fn. 2 (2018), enfd. 805

Fed.Appx. 2 (D.C. Cir. 2019).

3 We reject the Respondent’s argument that the judge failed to adequately address a purported violation of his sequestration order. Specifically, the Respondent asserts that one or more discriminatees surreptitiously accessed the virtual hearing while Manager Chris McGinty testified on direct examination during the Respondent’s case-in-chief. It was

not (and is not) clear that any of the discriminatees did so. In any event,

the judge acted within the bounds of his discretion when he ruled that, if

any party were to recall the discriminatees to the stand, the judge would

permit the Respondent to ask them whether they had violated the sequestration order, and, if they had, the judge would then decide upon an appropriate sanction. Ultimately, no party called these discriminatees to

testify again. In finding no abuse of discretion, we emphasize that, under

longstanding precedent, the Board permits discriminatees to be present

during the course of the entire hearing except when other witnesses on

behalf of the General Counsel or the charging party are testifying about

events as to which the discriminatee will be expected to testify. See, e.g.,

Greyhound Lines, 319 NLRB 554, 554 (1995); Unga Painting Corp.,

237 NLRB 1306, 1308 (1978). Further, the Respondent has not demonstrated that the judge’s ruling prejudiced its case.

4 The Respondent has excepted to some of the judge’s credibility

findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance

of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d

Cir. 1951). We have carefully examined the record and find no basis for

reversing the findings. In addition, some of the Respondent’s exceptions

imply that the judge’s rulings, findings, and conclusions demonstrate

bias and prejudice. On careful examination of the judge’s decision and

the entire record, we are satisfied that the Respondent’s contentions are

without merit.

5 In analyzing the allegation that the Respondent unlawfully discharged Christopher Bendel, Gordon Dragoon, Kaleb Noble, and Kestrel

Swift, the judge applied Wright Line, 251 NLRB 1083 (1980), enfd. 662

373 NLRB No. 131

51a

Counsel and the Charging Parties each filed answering

briefs, and the Respondent filed reply briefs.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.1

The Board has considered the decision and the record in

light of the exceptions and briefs2 and has decided to affirm the judge’s rulings,3 findings,4 and conclusions5 and

to adopt the recommended Order as modified.6

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in commerce

within the meaning of Section 2(2), (6), and (7) of the Act.

2. Respondent violated Section 8(a)(1) of the Act by

discharging employees Christopher Bendel, Gordon Dragoon, Kaleb Noble, and Kestrel Swift because of their protected concerted activities.

F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), citing General Motors, 369 NLRB No. 127 (2020). General Motors was subsequently overruled in Lion Elastomers, 372 NLRB No. 83 (2023), vacated

and remanded 108 F.4th 252 (5th Cir. 2024). However, the parties here

litigated this case under Wright Line, and no party argues that an alternative framework should be applied. The General Counsel is always free

to proceed on a Wright Line theory of liability when challenging the legality of discipline or discharge, even where a violation might also be

proven under Lion Elastomers. Here, the General Counsel has chosen to

proceed under Wright Line, and there is no basis to require relitigation of

the case under Lion Elastomers. Consequently, we affirm the judge’s

application of the Wright Line standard and adopt his findings of violations.

In affirming the judge’s finding that the Respondent violated Sec.

8(a)(1) by discharging employee Bendel for disseminating the salary

spreadsheet, we also rely on the Respondent’s shifting explanations for

Bendel’s discharge as additional evidence of animus towards his protected concerted activity. We find it unnecessary to rely on the judge’s

finding that the Respondent’s decision to take the salary spreadsheet

down almost immediately is sufficient, on its own, to establish the Respondent’s animus towards the employees who disseminated the salary

spreadsheet.

In affirming the finding that the Respondent violated Sec. 8(a)(1) by

discharging employees Dragoon, Noble, and Swift, we clarify that the

relevant protected concerted activity that these employees engaged in

and for which the Respondent discharged them is their online chat communications about the salary spreadsheet, workplace conditions, and

frustration over Bendel’s recent discharge.

We do not rely on any implication in the judge’s decision that the

Respondent’s review of the employees’ online discussions might have

constituted unlawful surveillance, an allegation neither alleged in the

complaint nor argued to the Board on exceptions. Nor do we rely on the

judge’s statement that the Respondent’s failure to threaten to sue and to

possibly criminally prosecute Dragoon, Noble and Swift for sabotaging

its IT systems indicated that the Respondent was not genuinely concerned about sabotage. We adopt the judge’s pretext finding for the other

reasons that the judge stated.

6 Because the judge omitted a conclusions of law section from his

decision, we have set forth the conclusions of law in full below. In addition, we amend the judge’s recommended remedy as discussed below.

We shall also modify the judge’s recommended Order to conform to the

violations found, to the Board’s standard remedial language, and in accordance with Paragon Systems, Inc., 371 NLRB No. 104 (2022). We

shall substitute a new notice to conform to the Order as modified.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

3. Respondent’s unfair labor practices affect commerce

within the meaning of Section 2(6) and (7) of the Act.

AMENDED REMEDY

Although the judge properly recommended a remedy

consistent with our decision in Thryv, Inc., 372 NLRB No.

22 (2022), enf. denied on other grounds 102 F.4th 727 (5th

Cir. 2024), he did so using nonstandard language. In accordance with our decision in Thryv, the Respondent shall

also compensate Christopher Bendel, Gordon Dragoon,

Kaleb Noble, and Kestrel Swift for any other direct or

foreseeable pecuniary harms incurred as a result of the unlawful termination of their employment, including reasonable search-for-work and interim employment expenses,

if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be

calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB

1173 (1987), compounded daily as prescribed in Kentucky

River Medical Center, 356 NLRB 6 (2010).7

ORDER

The National Labor Relations Board orders that the Respondent, Vermont Information Processing, Inc., Colchester, Vermont, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 2(b), delete

paragraphs 2(d) and (e), and reletter the subsequent paragraphs.

“(b) Make Christopher Bendel, Gordon Dragoon, Kaleb

Noble, and Kestrel Swift 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 them, in the manner set forth in the remedy section

of the judge’s decision as amended in this decision.”

2. Substitute the following for what is currently paragraph 2(i), now relettered as 2(g).

“(g) Post at its facility in Colchester, Vermont, copies

of the attached notice marked “Appendix.”8 Copies of the

notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized

representative, shall be posted by the Respondent and

maintained for 60 consecutive days in conspicuous places,

including all places where notices to employees are customarily posted. In addition to physical posting of paper

notices, notices shall be distributed electronically, such as

by email, posting on an intranet or an internet site, and/or

other electronic means, if the Respondent customarily

communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure

that the notice is not altered, defaced, or covered by any

other material. If the Respondent has gone out of business

or closed the facility involved in these proceedings, the

Respondent shall duplicate and mail, at its own expense, a

copy of the notice to all current employees and former employees employed by the Respondent at any time since

February 16, 2022.”

3. Substitute the attached notice for that of the administrative law judge.

Dated, Washington, D.C. November 5, 2024

7 For the reasons set forth in Airgas USA, LLC, 373 NLRB No. 102,

slip op. at 1 fn. 2 (2024), the Board’s decision in Thryv remains valid

precedent.

pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means

within 14 days after service by the Region. If the notice to be physically

posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is

the same notice previously [sent or posted] electronically on [date].” If

this Order is enforced by a judgment of a United States court of appeals,

the words in the notice reading “Posted by Order of the National Labor

Relations Board” shall read “Posted Pursuant to a Judgment of the United

States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

______________________________________

Lauren McFerran,

Chairman

______________________________________

David M. Prouty,

Member

______________________________________

Gwynne A. Wilcox,

Member

(SEAL)

NATIONAL LABOR RELATIONS BOARD

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered us to post and obey this notice.

If the facility involved in these proceedings is open and staffed by a

substantial complement of employees, the notices must be posted within

14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees has returned to work. If, while closed

or not staffed by a substantial complement of employees due to the

52a

VERMONT INFORMATION PROCESSING, INC.

The Board’s decision can be found at

https://www.nlrb.gov/case/03-CA-301055 or by using the

QR code below. Alternatively, you can obtain a copy of

the decision from the Executive Secretary, National Labor

Relations Board, 1015 Half Street, S.E., Washington, D.C.

20570, or by calling (202) 273-1940.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your

behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT discharge, suspend or otherwise discriminate against any of you for engaging in protected concerted activity.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the

exercise of the rights guaranteed you by Section 7 of the

Act.

WE WILL, within 14 days from the date of this Order,

offer Christopher Bendel, Gordon Dragoon, Kaleb Noble,

and Kestrel Swift full reinstatement to their former jobs

or, if those jobs no longer exist, to a substantially equivalent position, without prejudice to their seniority or any

other rights or privileges previously enjoyed.

WE WILL make Bendel, Dragoon, Noble, and Swift

whole for any loss of earnings and other benefits resulting

from their unlawful discharge, less any net interim earnings, plus interest, and WE WILL also make them whole for

any other direct or foreseeable pecuniary harms suffered

as a result of the unlawful discharges, including reasonable search-for-work and interim employment expenses,

plus interest.

WE WILL compensate Bendel, Dragoon, Noble, and

Swift for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the

Regional Director for Region 3, within 21 days of the date

the amount of backpay is fixed, either by agreement or

Board order, a report allocating the backpay award to the

appropriate calendar years for Bendel, Dragoon, Noble,

and Swift.

WE WILL file with the Regional Director for Region 3,

within 21 days of the date the amount of backpay is fixed

by agreement or Board order or such additional time as the

Regional Director may allow for good cause shown, a

copy of the corresponding W-2 form(s) for Bendel, Dragoon, Noble and Swift reflecting the backpay award.

WE WILL, within 14 days from the date of this Order,

remove from our files any reference to the unlawful discharges of Bendel, Dragoon, Noble, and Swift and WE

WILL, within 3 days thereafter, notify them in writing that

this has been done and that the discharges will not be used

against them in any way.

VERMONT INFORMATION PROCESSING, INC.

Abigail Snelling, Desmond D. Metzger, and Caroline V. Wolkoff,

Esqs. (on brief), for the General Counsel.

Stephen D. Ellis and Carl “Ott” Lindstrom, Esqs. (on brief)

(Paul, Frank & Collins, P.C.), of Burlington, Vermont, for

the Respondent.

Claudine C. Safar and Carly Rippel, Esqs. (Monaghan, Safar,

Ducham, PLLC), of Burlington, Vermont, for the Charging

Parties.

DECISION

STATEMENT OF THE CASE

ARTHUR J. AMCHAN, Administrative Law Judge. This case

was heard via Zoom video technology between June 12 and June

14, 2023. The Charging Parties’ attorney filed the charge on

their behalf on August 9 or 10, 2022. The General Counsel issued the complaint on January 31, 2023.

The General Counsel alleges that Respondent violated Section

8(a)(1) of the Act by terminating Christopher Bendel on February 16, 2022, and terminating Gordon Dragoon, Kaleb Noble

,and Kestrel Swift on February 18, 2022.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by

the General Counsel, Respondent and Charging Parties, I make

the following

FINDINGS OF FACT

I. JURISDICTION

Respondent is a software development company located in

Colchester, Vermont. It purchases and receives at that facility

goods valued in excess of $50,000 directly from points outside

of Vermont. Respondent admits, and I find, that it is an employer

engaged in commerce within the meaning of Section 2(2), (6),

and (7) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES

Respondent, Vermont Information Processing (VIP), is located in Colchester, Vermont. It builds software and manages

data for the beverage industry. Its customers include AnheuserBusch, Molson, Coors, Heineken and Bacardi. VIP is 100

53a

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

percent owned by its employees through an Employee Stock Option Plan (ESOP).

VIP hired Christopher Bendel in June 2018. At the time of his

termination on February 16, 2022, Bendel was a senior software

engineer III.1 There is no credible evidence that Respondent had

any plans to terminate Bendel before he circulated a spreadsheet

on February 16, 2022. To the extent Respondent’s evidence suggests otherwise, I discredit it.

Kaleb Noble and Kestrel Swift were hired by VIP on June 1,

2015. As of his termination Noble was a software engineer II.

He had been seeking a salary increase and a promotion to level

III (Tr. 134). Noble discussed his desire for a promotion with

his Supervisor Sam Graefe several months prior to February

2022.

Swift and Gordon Dragoon were team leaders, software engineer III. VIP hired Dragoon in 2016. There is no credible evidence that Respondent planned to terminate any of the three before becoming aware on February 17, 2022, of an instant messaging chat in which they participated. To the extent Respondent’s evidence suggests otherwise, I discredit it.

None of the four employees had been disciplined by VIP during their employment prior to February 16. All four had received

salary increases and favorable performance reviews. VIP contends the four discriminatees (or at least Swift and Dragoon)

were statutory supervisors excluded from the Act’s protections.

It bases this claim on the fact that several of them had input in

hiring decisions. While they sat in on interviews and provided an

assessment of an applicant’s technical abilities, they did not

make final hiring decisions, nor was their approval of a candidate

determinative in the decision whether or not to hire (Tr. 259–

260, 271–272, 347).

There is also no evidence that any of the discriminatees played

any role in determining which applicants made it to the interview

stage of the hiring process. Moreover, after the interview in

which they participated, the applicant talked to a hiring manager.

Thus, it is clear that the opinion of the discriminatees that an applicant was technically qualified did not necessarily result in the

applicant being hired.

The two team leads, Dragoon and Swift, at times determined

what specific task a member of their team would perform. There

is no evidence that they had any role in determining which employees would be on which team or the general responsibilities

of their team members. None of the alleged discriminatees

played any role in Respondent’s February 2022 plan to restructure its teams. There is no evidence that any of them were consulted about the restructuring plan beforehand.

In mid-February 2022, VIP was preparing to embark on a reorganization of its product teams. The four alleged discriminatees, particularly Bendel, were unhappy with the plan. Bendel

was not going to be assigned to a specific product team but was

On February 15, 2002, Bendel met virtually with Sam Graefe,

his immediate supervisor. He questioned Graefe about his role

after the reorganization. Bendel was not satisfied with the responses he received. He may have hung up on Graefe (R. Exh.

11, p. 3).2 Bendel then called Chris McGinty, VIP’s Director of

Development. He was also dissatisfied with the responses he

received from McGinty as to his future role and whether it would

come with a salary increase.

Bendel then talked with Kaleb Noble. Noble told Bendel that

he was due to be promoted to software engineer III and asked

Bendel about his salary. Bendel told Noble he was making

$95,000 a year ($500 more than he was actually making) (GC

Exh. 5). Noble responded that he was making $86,000 a year.

Bendel then suggested starting a spreadsheet. Noble then prepared the spreadsheet.

In the chat, Noble stated: “The idea in my mind is so if you

wanna ask for a raise you got some reference to see if you’re

getting fisted lol.”

Noble and Bendel created a spreadsheet which was accompanied by a Google form for employees to enter into the spreadsheet their name (although they were able to remain anonymous), their department, their position and annual salary (GC

Exh. 3). The spreadsheet also contained a section in which to

analyze the data. Noble and Bendel then sent the spreadsheet to

Kestrel Swift and Gordon Dragoon, who disseminated it to other

employees. At some point someone included a note at the bottom

of the sheet indicating that 100 percent of the developers were

underpaid. The four discriminatees were the first four names entered on the spreadsheet.

On the morning of February 16, Bendel, Noble, Swift and

Dragoon participated in a Group Chat about the spreadsheet.3

The four employees were using their VIP computers and were

connected to the VIP server. This chat occurred while Chris

McGinty was conducting a group chat about the VIP reorganization. The four disparaged the VIP reorganization plan (R. Exh.

14).

A number of employees entered their data, including salaries

into the spreadsheet. At about 11 a.m., Louise Morgan, VIP’s

Director of Operations accessed the chat and saw the spreadsheet. Morgan was apparently told about the spreadsheet by supervisor Chris Morse. Morse was concerned that some of the

data was inaccurate and the conclusion at the bottom of the

spreadsheet that 100 percent of VIP programmers were underpaid (Tr. 317).4 When Morse and Morgan talked to VIP Director

of Development Chris McGinty they determined that Chris Bendel had created the spreadsheet and was the author of the 100percent underpaid calculation. That was a major factor in

1 Software engineer III is a higher classification than software engineer II and generally comes with a higher salary.

2 While Bendel wrote in a chat that he had hung up on Graefe, at trial

he testified, that he was “puffing my chest a little bit in the chat with my

friends, Tr. 95. Graefe did not testify so it is unclear whether Bendel

hung up on him. However, it is clear that the conversation ended abruptly. Whether or not Bendel hung up on Graefe, there is no credible

evidence that Respondent relied on this in terminating him. Graefe in

his account of the conversation to Chris McGinty did not claim that Bendel hung up on him (R. Exh. 5 pp. 3–4).

3 The time indicated for the various entries are the time in the Greenwich (London) time zone. The chat took place starting at about 8:17 East

Coast time.

4 Neither Morse nor Morgan testified in this proceeding. It may have

been McGinty, rather than Morse, who zeroed in on the 100 percent calculation (Tr. 471).

to be on a team that would provide service to the product teams.

The Spreadsheet

54a

VERMONT INFORMATION PROCESSING, INC.

Respondent’s decision to terminate Bendel (Tr. 380–381, 472).

In this regard, John Simard, VIP’s Chief Financial Officer, who

effectively made the decision to terminate Bendel, testified:

At about 10:50 a.m. Bendel wrote: “L

ouise has entered the game.”6

About a half hour later, Swift, Dragoon and Noble noticed that

Bendel was locked out and learned that he had been fired. After

Bendel was terminated the discussion continued on a different

chat platform named Slack.

The next entries are critical in that Respondent relies on them

heavily in justifying terminating Swift, Dragoon and Noble (R.

Exh. 14 pp. 39–41.)

The problem was Chris was carrying a narrative and he was

manipulating the worksheet to make that message to everybody that programmers are all underpaid, a hundred percent of

them.

And that’s unacceptable.

(Tr. 497. Also see, Tr. 519–520.)

Either McGinty or Simard directed IT Manager Jeff Compo to

investigate how the spreadsheet was disseminated and whether

it was communicated outside of VIP.

Soon afterwards VIP disabled Bendel’s work account and

took down the spreadsheet. At about noon Chris McGinty called

Bendel and told him that he was being terminated for his poor

attitude in the past. McGinty gave Bendel no other reason for

his termination.5

After that Kaleb Noble invited Bendel to join an instant messaging chat on a platform called Slack (R. Exh. 14). Besides

Noble and Bendel, Swift, Dragoon, and a former VIP employee

Colby Arcemont participated.

Among the relevant comments were:

Dragoon: He [Bendel] was actually fired

Swift: What the fuck?

Swift: Well, that is extremely illegal

Swift: As linked in this spreadsheet.

Noble: If I drop you know what happened.

Dragoon: I think I need to follow up with Sam here.

Noble: His computer has been remotely locked.

Swift: Jesus fucking Christ

Dragoon: he might get a decent payout here.

Noble: Purge your computers boys

Bendel: I really do hope we can all leave within the next month

or two.

The chat then indicates that Noble tried to delete the “purge

your computers” comment. At trial he testified that the Slack

platform will not erase the original. This line, he testified, reflects when he attempted to edit his message or delete a duplicate

message (Tr. 166–168.)

Bendel and Swift discussed a fellow employee named Feng,

who they considered underpaid. Bendel states: “let’s make a

pact that we bring him along wherever one of us ends up.”

Swift wrote “I told him all of us were already on the verge of

quitting, so he should join us.”

Swift also wrote: Can’t wait for every SE2 to be making more

than me as a Team Lead.

Dragoon wrote: What’s fucked is our salaries compared to

other companies.

Dragoon and Bendel disparaged the salary increase Dragoon

had just received.

Swift disparaged the VIP HR director “Since C is garbage.”

Swift wrote:

Noble: Assume all chats are public.

Swift: Especially these ones. They get inherited by

your manager.

Dragoon: Eh we haven’t said anything terrible.

Dragoon: Maybe somewhat rude.

Swift: Yeah, I don’t care. If I’m already fired, what are

they going to do?

Dragoon: I am still shocked.

Morse (his immediate supervisor) says he’s making my case to

McGinty every time he talks to him.

But apparently McGinty can’t get more money from Simard

(VIP’s CFO)

Because he doesn’t believe developers deserve money.

Dragoon: Also appalled.

Dragoon: I knew that upper management were snakes.

Dragoon: But this is a new low.

Noble: The doc is down.

Bendel: Wanna unionize.

Dragoon: I would support how I can. But I’m trying to

get out.

Swift: DON’T HIRE PEOPLE WITH EXPERIENCE

Bendel: the VIP way

Dragoon: Their entire plan is to hope for a recession

and hope VIP is the only option in town

Swift: We’ll make a union out of us yet.

The next day, Kestrel Swift threatened to resign on account of

the termination of Chris Bendel. Both Chris Morse and Chris

McGinty were aware of this (R. Exh. 40, par. 30). Dragoon and

5 Respondent contends, based on a comment made by Bendel in a

chat (GC Exh. 17, p. 4), that it had plans to terminate Bendel prior to its

discovery of the spreadsheet. However, there is no credible evidence that

VIP decided to terminate Bendel prior to discovering the spreadsheet.

(R. Exh. 5) and McGinty’s testimony at Tr. 307–310 establish the opposite.

6 Louise Morgan, VIP’s director of operations, accessed the spreadsheet at this time.

Kestrel: Fuck.

Swift: Did anyone download it.

Dragoon: Yep.

55a

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Noble told their supervisor Sam Graefe how unhappy they were

about Bendel’s termination and tried to defend him (Tr. 240–

241).

On February 17, while investigating employee communications relating to the spreadsheet, Jeff Compo, IT manager at VIP

discovered the chat.

At about 8 a.m. on February 18, 2022, VIP managers, including CEO Dan Byrnes, Louise Morgan, HR Manager Cathy Courier, McGinty, Sam Graefe, and Morse met with CFO John

Simard.7 McGinty read excerpts from the chat and the participants discussed it. The meeting participants also looked at the

performance reviews of the discriminatees. CFO Simard was

particularly offended by Kestrel Swift’s comment on his 2020

review regarding his loyalty to VIP (Tr. 488).

“Loyalty” is not an “area of improvement.” VIP promotes unhealthy practices and it’s unhealthier to tacitly accept that by

remaining silent. Even if I don’t have the power to change anything, the more these things are voiced, the better the chances

of someone who matters doing something to actually improve

them. VIP will fire me without remorse the second it doesn’t

think it can squeeze more money out of me that (sic) it pays

me. Why should I be loyal? This is a loveless exchange of labor for currency between two mutually selfish parties. If anything, the fact that I voice up problems I see in the company

should indicate that I care more about it than I need to. I could

sit down, shut up, and ignore all the areas of improvement that

I see in the company, but I’m invested enough that I want to

see it do better.

(GC Exh. 6.)

CFO Simard pushed hard for the termination of Noble, Swift

and Dragoon. McGinty and possibly Morse and/or Graefe

pushed for less severe punishment for the 2 team leads, Swift and

Dragoon (Tr. 484–488). Simard thought McGinty advocated retaining Kaleb Noble, the author of the “purge your computers”

comment. McGinty’s affidavit (R. Exh. 40, par. 44), is consistent with Simard’s recollection.

McGinty, in particular, was concerned that terminating the

twoteam leads, Swift and Dragoon (and/or Noble), were the only

VIP employees with a working knowledge of a couple of VIP’s

applications (Tr. 487). In the end, CEO Byrnes deferred to

Simard and authorized him to terminate Swift, Noble, and Dragoon.

That the 100-percent calculation was material in this decision

is established by the following testimony by Simard:

So here are people that are functional and happy and love the

culture. And that’s all lost. They’re all at home now. They’re

all working. They’re all isolated. And you now, if you have

one or two people poisoning that well and telling them this is a

bad plac

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