Summary
The Ninth Circuit denied petitions for review by the International Union of Operating Engineers, Stationary Engineers, Local 39, and Macy’s Inc., and granted the National Labor Relations Board’s cross-application for enforcement. The court held that Macy’s unlawfully locked out union employees after they ended their strike and unconditionally offered to return to work, because Macy’s failed to establish legitimate and substantial business justifications and did not provide timely, clear, and complete conditions for avoiding the lockout. The court also upheld the Board’s traditional and make-whole remedies, while concluding that additional extraordinary remedies were not required.
Topics
Practice areas
Questions Presented
- Whether the Union was a person aggrieved and therefore had jurisdiction to petition for review of the Board's order.
- Whether substantial evidence supported the Board's finding that Macy's unlawfully locked out employees in violation of NLRA §§ 8(a)(1) and 8(a)(3).
- Whether Macy's established a legitimate and substantial business justification for refusing to reinstate employees who unconditionally offered to return to work.
- Whether the Board clearly abused its discretion by denying the Union's requested extraordinary remedies.
- Whether the Board clearly abused its discretion by applying the Thryv make-whole framework to permit compensation for direct or foreseeable pecuniary harms, subject to later compliance proceedings.
- Whether the Board's finding that the unlawful lockout's taint continued throughout the lockout was supported by substantial evidence.
Holdings
- The Union was a person aggrieved because the Board denied in part the additional remedies requested in the Union's cross-exceptions; therefore, the Ninth Circuit had jurisdiction under 29 U.S.C. § 160(f).
- Macy's violated NLRA §§ 8(a)(1) and 8(a)(3) by locking out employees who unconditionally offered to return to work without timely, clear, and complete communication of the conditions necessary to avoid the lockout or obtain reinstatement, and without establishing a legitimate and substantial business justification.
- The Board did not clearly abuse its discretion by declining to order additional notice readings, an extended notice-posting period, notice mailing to all Union members, or notice language expressly describing the violation.
- The Board did not clearly abuse its discretion by invoking the Thryv make-whole framework in this case, so long as any later monetary relief is equitable, limited to actual direct or foreseeable pecuniary losses, and sufficiently tailored to the consequences of the unfair labor practice.
- The Board reasonably found that Macy's unlawful lockout retained its taint because Macy's did not terminate the lockout, restore the status quo ante, or prove that its failure to do so had no adverse effect on subsequent bargaining.
Key quotations
“For a lockout to be deemed lawful, “the union must be informed on a timely basis of the employer’s demands so that the union can evaluate whether to accept them and prevent the lockout.”” (21)
“Simply put, “employees must know at any point in the lockout what they can do to end it.”” (24)
“We conclude that the Board’s framework for compensation “for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful lockout, including reasonable search-for-work and interim employment expenses,” is within the Board’s broad discretion” (46)
Factual background
Macy's and the Union negotiated a successor collective bargaining agreement covering engineers and craftsmen. After Union members rejected Macy's final offer, they struck for approximately three months and then unconditionally offered to return to work on December 4, 2020. Macy's did not present a timely, clear, and complete offer identifying the conditions for reinstatement or avoiding a lockout, and on December 7 it refused to allow returning employees to work. The NLRB found the lockout unlawful and ordered reinstatement and make-whole relief.
Procedural history
An NLRB administrative law judge found that Macy's violated NLRA §§ 8(a)(1) and 8(a)(3) by locking out employees after they unconditionally offered to return to work without timely, clear, and complete notice of the conditions for reinstatement or avoiding the lockout. The Board affirmed, modified the make-whole remedy to include direct or foreseeable pecuniary harms, and denied additional extraordinary remedies sought by the Union. The Ninth Circuit denied both petitions for review and granted enforcement of the Board's order.