Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—6th Cir.: Sixth Circuit holds that NLRB lacks authority to award Thryv remedies, (Nov 6, 2025)

By Jason Albright, J.D.

The Board had ordered Starbucks to compensate a fired shift supervisor and union organizer for any “direct or foreseeable pecuniary harms” suffered because of its anti-union discrimination against her.

Granting enforcement as to the NLRB’s finding that Starbucks unlawfully fired a shift supervisor who led a movement to organize a union at one of its cafés, the Sixth Circuit held that the Board nonetheless exceeded its authority when it ordered Starbucks to compensate her, pursuant to Thryv, Inc., for any “direct or foreseeable pecuniary harms” she suffered because of the anti-union discrimination against her. Although Section 10(c) enables the Board to order employers “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate” the policies of the NLRA, “affirmative action” encompasses only equitable remedies, the appeals court found, and the remedy the Board imposed reflects legal relief, to which the right to a jury trial attaches. Judge Stranch dissented as to that holding (NLRB v. Starbucks Corp., No. 23-1767 (6th Cir. Nov. 5, 2025)).

Barista at Main and Liberty store. Starbucks hired the charging party in 2019 to work as a barista at its Main and Liberty store in Ann Arbor, Michigan. Several weeks later, it promoted her to shift supervisor. In that role, she maintained “all the duties of a barista” and assumed the responsibility to “help[] guide the work of others and assist[] with ordering and accounting.”

Organizing campaign. In January 2022, she cofounded an effort to organize a union at her store. With the help of Workers United, she discussed among her colleagues what she deemed to be the virtues of organizing, directing those interested to sign a union authorization card. She was widely viewed by her peers as the lead organizer at the store.

“Brewing Solidarity.” Over the next two months, she engaged in several visible organizing activities. She emailed the company’s then–CEO, demanding that Starbucks recognize Workers United as the Main and Liberty store’s collective bargaining representative. She conducted a radio interview about the campaign, began wearing union buttons in the café, answered customer questions about unionizing, appeared in a social media post supporting unionization, and placed union stickers in the store. She also wrote “Brewing Solidarity” on the store’s “community board,” a chalkboard open to messages from both Starbucks and the public.

District manager’s awareness of her efforts. In early March 2022, the NLRB held a videoconference hearing regarding Workers United’s petition to represent employees at various Starbucks stores in the Ann Arbor area, including the Main and Liberty location. Although the shift supervisor did not participate, she attended the hearing, with her name and picture visible. And on that same call for a brief period was the Starbucks district manager overseeing about 10 shops around Ann Arbor, including the Main and Liberty location. The district manager noticed the shift supervisor’s attendance at the Board’s hearing. She and the temporary manager of the Main and Liberty store were also aware that store employees were organizing.

Management’s flyers. Shortly after the kickoff of the organizing campaigning, the temporary manager, at the district manager’s direction, posted two flyers at the Main and Liberty store. One expressed management’s “sincere hope” that employees “w[ould] see” they do not need to unionize. The other stated that signing a union card “carries legal weight” and encouraged employees to “get all the facts!” before signing.

“Sip-ins.” To further its attempt to organize, Workers United scheduled “sip-ins” at two other Starbucks locations in the district manager’s domain. At a March 20, 2022, sip-in at the Zweeb Street Starbucks location, a non-Starbucks-affiliated union supporter distributed union buttons and literature along with Post-it notes for people to affix supportive messages on the store’s community board. Although the district manager did not work at that store and did not attend the sip-in, she sat in the store for the event’s three-hour duration, seemingly honoring the substitute store manager’s request for “support” during the sip-in. The district manager also removed at least three notes from the community board for purportedly being inconsistent with company policy.

Conflict with coworker. Amid these organizing efforts, the shift supervisor began to have conflict with a coworker. At the start of her shift on February 27, 2022, she messaged the temporary manager that multiple baristas had complained about working with the coworker, another shift supervisor at the store, with co-equal authority. She then wrote in the store’s daily book, in which employees document store incidents, that she “[d]id nothing like always.” The notation, in turn, was an apparent sarcastic reference to the coworker’s alleged remarks that she “never does anything” at work. When the coworker arrived for his shift, he read the entry and, in turn, criticized the shift supervisor for acting unprofessionally.

Escalation. The same day, the shift supervisor was scheduled to work until 7:00 p.m. with the coworker and a barista, both scheduled to work until 10:30 p.m. The coworker was also scheduled to take a 30-minute break—from 6:45 p.m. to 7:15 p.m.—meaning the barista would be working alone if he was not there when the shift supervisor left the store at the end of her shift. A Starbucks corporate policy, however, required at least two employees to be present in an open café. The rule was designed to protect employee safety, a particular concern for “high incident” stores such as the Main and Liberty location, which averaged two to three occasions of customer violence or related issues each week. When only two employees are working and one has a scheduled break, the policy explained, the on-break employee must remain in the store, receiving pay for the break’s duration.

Grandfather’s heart attack and her departure. The shift supervisor’s grandfather reportedly had suffered a heart attack earlier the same day, and she intended to visit him immediately after her shift ended. She asked the coworker to take his break early, but he refused and instead began his break shortly before 7:00 p.m. She left the store at the end of her shift nevertheless, leaving the barista there alone.

Texts to temporary manager and barista. Though she did not contact her supervisors to alert them that the barista would be alone in the store or to request support, she texted the temporary manager at 6:55 p.m. to complain about the earlier incident with the coworker. And she later texted the barista to confirm that the coworker had returned. According to the barista, he did return close to 7:30 p.m. In the interim, one customer entered the café.

Discharge of both. These events prompted the district manager and temporary manager to contact the company’s HR department. The next day, the district manager decided to fire both the shift supervisor and her coworker, which the legal department approved on April 3.

According to her notice-of-separation letter, received on April 11, the shift supervisor was fired for “fail[ing] to communicate in line with Starbucks [sic] mission and values and fail[ing] to meet expectations in [her shift supervisor] role” during the night of her dispute with the coworker. The coworker, on another hand, was fired on April 14, for saying the word “shit” in a customer-facing area of the store.

ULP charges. On the former shift supervisor’s behalf, Workers United pursued unfair labor practice (ULP) charges against Starbucks. The union’s primary charge, filed with the Board on April 11, claimed that Starbucks unlawfully terminated her to stifle organizing efforts.

Board’s decision. Though Starbucks denied the claims, maintaining it permissibly fired her for violating its two-employee store coverage rule and failing to request coverage from supervisors, a three-member majority of the Board found that the former shift supervisor showed sufficient antiunion animus by her supervisors to sustain a discrimination charge.

Thryv remedies. As remedies, the Board ordered Starbucks to, among “a laundry list of other directives,” according to the Sixth Circuit, “[m]ake... [the former shift supervisor] 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 her.” The “myriad” components of such “direct or foreseeable pecuniary harms,” observed the appeals court, can include interest and late fees on credit cards, penalties on early withdrawals from retirement accounts, and the loss of a car or home from missed loan or mortgage payments. Thryv, Inc., 372 N.L.R.B. No. 22 (Dec. 13, 2022).

Application for enforcement. The Board petitioned the Sixth Circuit for enforcement of its order, and Starbucks sought vacatur of the order, arguing that the ULP determination lacked substantial evidence and that the Board’s award of all “direct or foreseeable pecuniary harms,” besides lost earnings and benefits, exceeded its remedial authority under Section 10(c) of the NLRA.

The ULP finding. The appeals court had little difficulty sustaining the Board’s ULP finding. Although no “silver bullet decisively establishes Starbucks’s improper motive in discharging [the shift supervisor],” it was clear that Starbucks terminated her while aware of her organizing efforts, the Sixth Circuit observed. And during the ensuing administrative proceedings, Starbucks “failed to undermine an assortment of signals indicating [her] discharge was fueled, at least in part, by anti-union animus.” Particularly probative was that “the lone comparator with sufficient specification in the record—[the coworker]—was discharged for the distinct reason of using an expletive in a customer-facing area of the store.” Even if none of those “signals,” standing alone, would suffice to affirm the Board’s decision, there was substantial evidence.

Remedies. The Sixth Circuit found, however, that the Board exceeded its authority when it ordered Starbucks to compensate the shift supervisor, pursuant to Thryv, for any “direct or foreseeable pecuniary harms” suffered because of the anti-union discrimination against her. Although Section 10(c) enables the Board to order employers “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate” the policies of the NLRA, “affirmative action” encompasses only equitable remedies, the appeals court held.

The phrase “affirmative action” was routinely tied to equitable power, according to the court. “Decades before the NLRA’s enactment, the Supreme Court recognized that a ‘court of equity’ wields the ‘power’ to ‘require affirmative action.’” In re Lennon, 166 U.S. 548, 556 (1897). And “this same understanding populated the era of the NLRA’s enactment, with federal courts describing equity’s core effect as restraining or compelling ‘affirmative action.’”

“Prominent legal scholars both then and now share the same view,” continued the Sixth Circuit. Among others, the court cited Roscoe Pound, The Progress of the Law, 19181919: Equity, 33 Harv. L. Rev. 420, 439 (1920), referring to “the power of equity to coerce affirmative action.” These commentators, according to the court, “likewise describe ‘affirmative action’ as authorizing relief that is equitable in nature.”

Right to jury trial. Consistent with this “shared understanding,” the Sixth Circuit held that the Board’s authority under Section 10(c) to order employers to take “affirmative action” encompasses only equitable remedies. The remedy the Board imposed, however, “reflects legal relief amounting to money damages, to which a jury trial right attaches.” “‘[A]ny other direct or foreseeable pecuniary harm incurred,’ how the Board formulated its award here,” the appeals court observed, “strikes us as merely a verbose way of referring to consequential damages—a ‘classic form of legal relief.’” And with that “it follows, the defendant’s right to have a jury decide the Board’s claims.”

The Sixth Circuit clarified here that “We do not doubt the Board’s authority to tailor monetary payments so that they serve solely ‘to restore the status quo,’ rendering them equitable.” However, “awards under Thryv reach much farther than just that narrow category. In effect, they broaden the realm of § 10(c) relief to harms bearing, at best, a tangential relation to the respective unfair labor practice.” Indeed, by way of its rationale for such remedies, “The Board is measuring monetary relief from the standpoint of the employee’s loss, indicating its compensatory nature, rather than the employer’s gain, which invokes equitable considerations.”

Thus granting the Board’s petition for enforcement “as to its factfinding,” the Sixth Circuit nevertheless vacated the award and remanded.

Partial dissent. In her partial dissent, Judge Stranch argued that the U.S. Supreme Court has long confirmed that the NLRA gives the Board wide discretion to order affirmative action that effectuates the policies of the Act, and that “Thryv expounds on the Board’s power to grant equitable remedies.”

The case is No. 23-1767.

Judge: Readler, C.

Attorneys: Eric Weitz for the NLRB. Lisa Schiavo Blatt (Williams & Connolly) for Starbucks Corp.

Companies: Starbucks Corp.

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