Summary
This Ninth Circuit Court of Appeals opinion reviews a National Labor Relations Board order finding that Macy’s Inc. committed an unfair labor practice by locking out striking union employees without providing clear conditions for reinstatement. The panel denied petitions for review filed by both the union and Macy’s, holding that substantial evidence supported the Board’s factual findings and that the employer failed to demonstrate legitimate business justifications for the lockout under the NLRA. The court also upheld the Board’s remedial order, including make-whole relief for foreseeable pecuniary harms, finding no clear abuse of discretion.
Topics
Practice areas
Questions Presented
- Whether the Union was a person aggrieved and therefore had jurisdiction to petition for review of the Board’s refusal to grant additional remedies.
- Whether Macy’s lockout violated sections 8(a)(1) and 8(a)(3) of the NLRA because Macy’s failed to provide a timely, clear, and complete statement of the conditions necessary to avoid the lockout or obtain reinstatement.
- Whether substantial evidence supported the Board’s finding that Macy’s unlawful lockout remained tainted throughout the lockout because Macy’s failed to restore the status quo ante and show that the lockout did not adversely affect subsequent bargaining.
- Whether the Board abused its discretion by declining the Union’s requested extraordinary remedies.
- Whether the Board abused its discretion by ordering make-whole relief for direct or foreseeable pecuniary harms under Thryv, Inc.
Holdings
- The Union was a person aggrieved under 29 U.S.C. § 160(f) because the Board denied the Union’s requested additional remedies, and the court therefore had jurisdiction over the Union’s petition. The court also had jurisdiction over the Board’s cross-application for enforcement.
- Macy’s violated sections 8(a)(1) and 8(a)(3) of the NLRA by locking out employees who had unconditionally offered to return to work without timely, clearly, and fully informing the Union of the conditions necessary for reinstatement or avoidance of the lockout.
- The unlawful lockout retained its taint throughout the lockout, and Macy’s remained liable for the resulting make-whole relief because it did not terminate the lockout, restore the status quo ante, or affirmatively show that the failure to do so had no adverse effect on subsequent bargaining.
- The Board did not clearly abuse its discretion by denying the Union’s requests for a management-attended notice reading, an extended notice-posting period, notice mailing to Union members, and more explicit notice language.
- The Board did not clearly abuse its discretion by ordering make-whole relief that includes compensation for direct or foreseeable pecuniary harms incurred as a result of the unlawful lockout, subject to proof in a later compliance proceeding.
Key quotations
“Accordingly, as “the employer who refuses to reinstate strikers,” Macy’s “is guilty of an unfair labor practice” unless it can show “legitimate and substantial business justifications” for its lockout.” (17)
“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.”” (19-20)
“Macy’s was “obligated to declare the lockout before or in immediate response to the strikers’ unconditional offer[] to return to work.”” (23-24)
“Accordingly, compensation for “direct or foreseeable pecuniary harms,” as defined in Thryv, would allow for “a restoration of the situation, as nearly as possible, to that which would have obtained but for” the unlawful lockout here.” (39)
Factual background
During negotiations for a successor collective bargaining agreement, Macy’s made a final offer that Union members rejected, and the employees went on strike. After the final offer expired, the Union made an unconditional offer to return to work, but Macy’s told the Union that employees should not return and subsequently refused to reinstate them until an agreement was in place. At the time of the lockout, Macy’s had not provided a current, clear, and complete bargaining proposal identifying the conditions necessary to avoid the lockout or obtain reinstatement.
Procedural history
An NLRB administrative law judge found that Macy’s violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by locking out Union employees after they made an unconditional offer to return to work without Macy’s providing a timely, clear, and complete statement of the conditions for avoiding the lockout or obtaining reinstatement. The Board affirmed the ALJ’s findings and modified the make-whole remedy to include direct or foreseeable pecuniary harms. The Ninth Circuit denied both petitions for review and granted the Board’s cross-application for enforcement.
Remand instructions
No remand was ordered. Any calculation and proof of direct or foreseeable pecuniary harms must occur in a later Board compliance proceeding and must be limited to actual, specific, ascertainable, and non-speculative losses.