Whether the National Labor Relations Board has statutory or constitutional authority to order employers to pay pecuniary harms resulting from an alleged unfair labor practice

By its terms, the National Labor Relations Act authorizes the Board to impose only those (equitable) remedies appropriate for an administrative agency incapable of furnishing jury-trial rights. For 90 years, the Board stayed within thos e remedial confines. But in 2022, the Board shattered them, holding in Thryv, Inc., 372 NLRB No. 22 (2022), that it may order employers to compensate employees for all pecuniary harms “foreseeably” suffered as a consequence of an unfair labor practice. Three circuits have squarely rejected that power grab, holding that Thryv remedies exceed the Board’s statutory authority and run headlong into the Seventh Amendment. But the Ninth Circuit openly broke from them here, blessing the Board’s novel remedies. Adding insult to injury, the Ninth Circuit sharply departed from this Court’s caselaw in deeming Macy’s’ perfectly reasonable give-us-the-weekend response to an unanticipated union maneuver as “inherently destructive,” creating another split with its sister circuits that faithfully follow this Court’s teachings. The questions presented are: 1. Whether an employer’s practice that has no noted effect on employees’ rights and is not motivated by anti-union animus is inherently destructive of union rights and violates the National Labor Relations Act. 2. Whether the National Labor Relations Board has the statutory or constitutional authority to order employers to pay “any … direct or foreseeable pecuniary harms” their employees incur “as a result of” an unlawful labor practice.