The National Labor Relations Board has told a federal appeals court that a recent U.S. Supreme Court ruling barring certain in-house agency enforcement proceedings has no effect on its powers to remedy illegal labor practices.
The board in a brief filed on Monday with the 9th U.S. Circuit Court of Appeals in a case involving Macy's said the high court's June ruling in Jarkesy v. U.S. Securities and Exchange Commission did not disturb a Supreme Court decision from the 1930s upholding the NLRB's then-novel structure.
The board in Monday's brief said ensuring that workers are made fully whole for costs they incur as the result of illegal firings and other employer misconduct is distinct from the punitive damages levied by the SEC and other agencies.
"Such relief does not punish bad actors, but rather implements the statutory principles of rectifying the harms actually incurred by the victims of the unfair labor practices," board lawyers wrote.
But Macy's, which is appealing an NLRB decision that found the retailer illegally locked out workers after a strike, said in a dueling brief on Monday that Jarkesy applies to any claims that evolved out of common law including those involving illegal firings, which are akin to wrongful termination claims.
The decades-old Supreme Court precedent cited by the board only involved back pay and not the more expansive money remedies the NLRB has sought in recent years, the company said.
"The Board addresses the legality of union activity (and employer responses) through the lens of [federal labor law] just as the common law did through claims such as breach of contract, interference with business relations, and conspiracy," Macy's lawyers wrote.
The 9th Circuit, which heard oral arguments in the case in March, had asked last month for supplemental briefs on the impact of Jarkesy. The panel includes 9th Circuit Judges Jacqueline Nguyen and Patrick Bumatay and Federal Circuit Judge Evan Wallach, who is sitting by designation.
The Supreme Court decision only directly impacts the SEC, but is widely expected to lead courts to block other agencies from handing down penalties in administrative cases. Last week, Comcast filed a lawsuit claiming that U.S. Department of Labor proceedings in cases involving financial whistleblower claims are unconstitutional.
Federal labor law only allows the NLRB to impose remedies that make workers subjected to unlawful conduct whole and does not allow for statutory penalties, but the board in recent years has attempted to expand them.
The NLRB cited Thryv in Macy's case and ordered the company to pay workers for any "direct or foreseeable" monetary harms.
The New Orleans-based 5th Circuit in May threw out the Thryv ruling, but it did so on the merits of the board's decision and did not address the broader issue of remedies.
The case is Macy's Inc v. NLRB, 9th U.S. Circuit Court of Appeals, No. 23-150.
For the NLRB: Usha Dheenan and Barbara Sheehy
For the union: David Rosenfeld of Weinberg, Roger & Rosenfeld
For Macy's: Laura Ann Pierson-Scheinberg of Jackson Lewis
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