This case involved petitions for review of a National Labor Relations Board (NLRB) order concerning unfair labor practices by Macy's Inc. The International Union of Operating Engineers, Stationary Engineers, Local 39 (the "Union") had charged Macy's with unlawful conduct.

Background: Negotiations for a successor collective bargaining agreement (CBA) between Macy's and the Union broke down. Union members rejected Macy's "Final Offer" and went on strike. After three months, the Union made an unconditional offer to return to work. Macy's, however, locked out the employees who reported for work. The Union filed an unfair labor practice charge, which the NLRB adopted, finding Macy's violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA).

Legal Analysis and Holding:

The Court of Appeals for the Ninth Circuit addressed three petitions: the Union's for review, Macy's for review, and the NLRB's cross-application for enforcement. The court held that it had jurisdiction because the Union, as a party aggrieved by the denial of its requested extraordinary remedies, could seek review.

The Lockout: Macy's argued its lockout was justified under Section 8(a)(1) and (3) of the NLRA as a means to support its legitimate bargaining position after an impasse, citing American Ship Building Co. v. NLRB. However, the court applied the framework established in NLRB v. Fleetwood Trailer Co. and NLRB v. Great Dane Trailers, Inc., which requires employers to demonstrate "legitimate and substantial business justifications" for refusing to reinstate striking employees who offer to return.

The court found substantial evidence supported the Board's conclusion that Macy's lockout was unlawful. Specifically, the Board applied the standard from Dayton Newspapers, Inc. and Alden Leeds, Inc., which requires employers to inform employees "clearly and fully of the conditions they must meet to be reinstated" or to avoid a lockout. Macy's failed to do this. The Final Offer had expired, Macy's rejected the Union's subsequent wage proposal without presenting a timely, clear, and complete counter-offer before the lockout, and Macy's later communicated its lockout on December 7, 2020, three days after the Union's unconditional offer and after initially stating it was "not a lockout." The court concluded that Macy's failure to provide a timely, clear, and complete offer prevented the Union from evaluating its position. Macy's argument that the lockout was defensive due to concerns about misconduct and sabotage was rejected, with the ALJ finding these to be "post-hoc excuses" and the true motive to be gaining economic leverage.

Remedies: The court upheld the Board's remedial order, finding no clear abuse of discretion.

• Union's Requested Additional Remedies: The Union sought extraordinary remedies beyond the traditional ones. The court denied this petition, finding that the Board's traditional remedies were sufficient and that the requested extraordinary remedies were typically reserved for cases involving respondents with a proclivity for violations or egregious misconduct, which was not demonstrated here. The court also found the Board's standard notice format, using "WE WILL" and "WE WILL NOT" statements, to be within its discretion.

• Macy's Challenges to Make-Whole Relief: Macy's challenged the Board's revised make-whole relief framework established in Thryv, Inc., which includes compensation for "direct or foreseeable pecuniary harms." Macy's argued this constituted impermissible consequential damages. The court rejected this, affirming that the Board's remedial power under Section 10(c) of the NLRA is broad and intended to restore the situation to what it would have been absent the unfair labor practice. The court found that the "make-whole relief" as clarified in Thryv serves the public purpose of effectuating the NLRA's policies by restoring the economic status quo and ensuring meaningful bargaining, and is distinct from punitive damages or damages available in traditional tort law as outlined in United States v. Burke. The court also noted that any such harms would need to be proven specific and non-speculative in a compliance proceeding. The court found that the Board's remedial order fell within its broad discretion.

Conclusion: The court denied both the Union's and Macy's petitions for review and granted the NLRB's cross-application for enforcement of its order.

Significant Cases Cited:

• American Ship Building Co. v. NLRB, 380 U.S. 300 (1965): This case established that an employer may lawfully lock out employees after a bargaining impasse to support its legitimate bargaining position.
• NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967): This case held that an employer's refusal to reinstate striking employees after a strike ends constitutes an unfair labor practice unless the employer can show legitimate and substantial business justifications.
• NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): This case established a framework for analyzing employer conduct that may violate Section 8(a)(3) of the NLRA, distinguishing between conduct that is "inherently destructive" of employee rights and conduct with a "comparatively slight" adverse effect.
• Dayton Newspapers, Inc., 339 NLRB 650 (2003): This NLRB decision, enforced by the Sixth Circuit, found an unlawful lockout where union workers were not clearly and fully informed of the conditions necessary for reinstatement.
• Thryv, Inc., 372 N.L.R.B. No. 22 (2022): This NLRB decision standardized make-whole relief to expressly include direct or foreseeable pecuniary harms suffered by affected employees.

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