On November 5, 2025, the United States Court of Appeals for the Sixth Circuit issued an opinion in NLRB v. Starbucks Corp., joining with the Third and Fifth Circuits in finding the National Labor Relations Board (NLRB or Board) exceeded its authority under the National Labor Relations Act (NLRA) by ordering an employer to compensate an unlawfully terminated employee for any “direct or foreseeable pecuniary harms” the employee suffered as a result of her termination of employment. In refusing to enforce these remedies, the Sixth Circuit delivered the most recent blow to the NLRB’s efforts to impose more broad, far-reaching, and more financially severe remedies under the NLRB’s 2022 ruling in Thryv, Inc.
The Board in Thryv explained that under its remedial authority in Section 10(c) of the NLRA, it could, and going forward would, expressly include the “direct or foreseeable pecuniary harms” suffered by an employee impacted by an unfair labor practice in any “make-whole” relief issued by the Board. It went on in Thryv to state that its expansion of the Board’s make-whole remedy was “necessary to more fully effectuate the make-whole purposes of the Act.” Under Thryv, the Board explained that it could order relief for the resulting consequences of unfair labor practices, including damages such as credit card fees, out-of-pocket medical expenses, and interest and penalties for missed mortgage payments. These types of relief go well beyond the reinstatement, backpay, and interest make-whole remedies traditionally ordered by the Board.
Although the Sixth Circuit agreed with the Board that the employee had been unlawfully terminated because of her union organizing activity in violation of the NLRA, the Court disagreed with the Board’s damages remedy. The court explained that Section 10(c) of the NLRA only grants the Board the power to effectuate equitable remedies, not award consequential damages. In reaching this conclusion, the Court looked to the language of the NLRA, which requires the Board to order employers to “cease and desist” from engaging in unfair labor practices and take “affirmative action” to effectuate the policies of the NLRA. “Affirmative action,” the court reasoned, is a legal term of art that is understood by courts and legal commentators to “refer to the effect or function of equitable relief.” However, damages for “direct or foreseeable pecuniary harm,” as ordered by the Board under Thryv, was legal relief which amounted to money damages, and thereby exceeded the Baord’s remedial authority to award only equitable relief.
Less than a week before the Sixth Circuit’s decision, the United States Court of Appeals for the Fifth Circuit reached a similar conclusion, deciding that the remedial authority of the Board described in Thryv was overbroad and not consistent with the language or meaning of the NLRA. In Hiran Management v. NLRB, the Fifth Circuit found that a restaurant owner violated Section 8(a)(1) of the Act by firing employees after they went on strike. However, as in Starbucks, the court found that the Board’s remedy ordering the restaurant owner to make the affected employees whole, including “for any other direct or foreseeable pecuniary harms suffered as a result” of the unfair labor practice, was outside of the Board’s authority. The Court explained that unlike backpay and reinstatement, the Thryv remedy was legal and not equitable, and thus outside the Board’s Section 10(c) authority.
Although the NLRB’s efforts to expand remedies under Thryv have taken a hit in recent weeks, at least one federal appeals court has held that an NLRB remedial order which included any direct and foreseeable pecuniary harm as part of a make-whole remedy was within the authority granted to the Board under the NLRA. That decision was issued earlier this year out of the United States Cour of Appeals for the Ninth Circuit in IUOE, Local 39 v. NLRB. In that case, in upholding the Board’s Thryv remedy, the court reasoned that the Thryv remedy was similar to an order for backpay, and “served to effectuate the policies of the Act.”
With this split in authority over the NLRB’s Thryv remedies, a resolution by the U.S. Supreme Court may be in the future. Or, a new Board, once confirmed, may overrule Thryv.
