The Supreme Court Ducks the Thryv Fight

The justices just declined to review the NLRB’s most aggressive remedy power. The circuit split lives on. So frustrating.

On June 15, the Supreme Court denied cert in Macy’s Inc. v. NLRB, leaving in place a Ninth Circuit decision that enforced the Board’s 2022 Thryv precedent.

Thryv expanded NLRB remedies to cover “all direct or foreseeable pecuniary harms” from an unfair labor practice, things like out-of-pocket medical bills, utility bills, a new suit for interviewing, etc. after an unlawful firing. Critics, including the Fifth Circuit, called it a “draconian,” consequential-damages-style remedy that exceeds the Board’s authority.

The split: the Third, Fifth, and Sixth Circuits have all rejected Thryv, holding that Section 10(c) limits the Board to equitable relief. The reliably left leaning Ninth Circuit is the lone appeals court to bless it. The Supreme Court, for now, is letting that disagreement stand.

With a third Republican member on the way, the NLRB is likely to rework or overturn Thryv, and current GC guidance already reserves expanded remedies for “egregious” conduct.

This fight will probably be resolved by the Board, not the Court. Until then, it’s frustrating to advise my clients that but for this rogue decision that will last just a few short years, its damages for allegedly violating the Act would have been a fraction of what it now owes.