Labor & Employment Law Daily Wrap Up, SUPREME COURT NEWS—Court passes on request that it review NLRB’s authority to award Thryv remedies, (Jun 17, 2026)

By Brandi O. Brown, J.D.

The employer described the NLRB’s holding in Thryv, Inc., as a “power grab” and argued that a circuit split had developed on this issue.

The U.S. Supreme Court recently denied certiorari in an employer’s petition seeking to challenge the NLRB’s authority to order employers to provide Thryv remedies to compensate employees for all pecuniary harms “foreseeably” suffered as a consequence of an unfair labor practice.

Below, the Ninth Circuit enforced the NLRB order that found Macy’s unlawfully locked out union members who unconditionally offered to return to work following a strike, concluding that the Board did not err in providing the employees with broad make-whole relief pursuant to its 2022 precedent in Thryv, Inc. Macy’s could not show a legitimate and substantial business justification for the lockout, the Ninth Circuit concluded, and the employees were not clearly and fully informed of conditions they needed to satisfy to be reinstated. Judge Bumatay, dissenting in part, questioned the authority of the Board to issue Thryv remedies (International Union of Operating Engineers, Local 39 v. NLRB, Nos. 23-124, 23-150, and 23-188 (9th Cir. Jan. 21, 2025)).

According to the employer’s petition, in reaching this conclusion, the Ninth Circuit diverges from the Third, Fifth, and Sixth Circuits, which have concluded that Thryv remedies exceed the Board’s statutory authority. The employer encouraged the Court to grant the writ to resolve this split, claiming that the Ninth Circuit’s remedial holding conflicts with the NLRA as well as the decisions of multiple other circuits.

Government sought GVR. In the government’s brief, it encouraged the Court to “GVR” the case, i.e., grant the petition, vacate the Ninth Circuit’s judgment, and “remand the case with instructions to remand to the Board to allow for further consideration.” While it contended that the liability finding challenge also put forward by Macy’s did not warrant a different result, it explained that, with regard to the challenge to the lawfulness of the Board’s Thryv remedy, the Board should be allowed a second shot at it.

“But since issuing the order in this case and petitioning for enforcement,” it wrote, “the Board’s composition has changed, with two new members confirmed and an additional nomination pending. The two newly confirmed members of the Board have expressed interest in reconsidering the Thryv remedy, and the Board does not wish to pursue its petition to enforce the existing order before doing so. The Court should allow such reconsideration to occur, which may moot any question regarding the Thryv remedy.”

However, because the Court denied the petition, that review will have to wait. For now, the Ninth Circuit’s ruling stands.

The docket is No. 25-627.

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