A U.S. appeals court on Monday signaled that a recent U.S. Supreme Court ruling curbing the in-house enforcement powers of some federal agencies could impact the National Labor Relations Board, in a case involving alleged labor law violations by Macy's.
A three-judge panel of the San Francisco-based 9th U.S. Circuit asked lawyers for the board, Macy's, and a union representing the retailer's employees to file briefs explaining how the Supreme Court's June ruling in Jarkesy v. U.S. Securities and Exchange Commission may affect the NLRB's ability to impose remedies in administrative cases.
The International Union of Operating Engineers affiliate that represents those workers filed a cross-appeal arguing that the board did not go far enough in imposing remedies on Macy's.
The 9th Circuit heard oral arguments in the case in March.
Macy's and lawyers for the union did not immediately respond to requests for comment. An NLRB spokeswoman declined to comment.
The Supreme Court in its Jarkesy ruling said the SEC's practice of imposing monetary penalties for financial fraud in administrative cases violates defendants' constitutional right to a jury trial.
The decision only directly impacts the SEC, but is widely expected to lead courts to block other agencies from handing down penalties in administrative cases.
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 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 5th Circuit ruling does not bind the 9th Circuit, which in Monday's two-sentence order asked for briefs on Jarkesy's impact "on the award of remedies under the National Labor Relations Board’s decision in Thryv Inc."
The panel includes 9th Circuit Judges Jacqueline Nguyen and Patrick Bumatay and Federal Circuit Judge Evan Wallach, who is sitting by designation.
The case is Macy's Inc v. NLRB, 9th U.S. Circuit Court of Appeals, No. 23-150.
For the NLRB: Barbara Sheehy
For the union: David Rosenfeld of Weinberg, Roger & Rosenfeld
For Macy's: Laura Ann Pierson-Scheinberg of Jackson Lewis
Read more:
NLRB ruling that expanded money damages for workers rejected by 5th Circuit
SEC in-house judges violate right to jury trial, appeals court rules
US Supreme Court faults SEC's use of in-house judges in latest curbs on agency powers
NLRB GC directs staff to seek expansive remedies for workers
Workers entitled to more money from employers who break the law - labor board
