The panel filed (1) an order denying a petition for rehearing en banc and amending the opinion and partial dissent filed on January 21, 2025; and (2) an amended opinion and an amended partial dissent denying petitions for review brought by the International Union of Operating  Engineers, Stationary Engineers, Local 39 (the “Union”) and Macy’s Inc., and granting the National Labor Relations Board’s cross-application for enforcement of its final order in a case in which the Union charged Macy’s with unfair labor practices under the National Labor Relations Act (“NLRA”).

During negotiations over a successor collective bargaining agreement, Union members voted to reject Macy’s Final Offer and began a strike. After three months, the Union ended its strike and unconditionally offered to return to work. Macy’s locked out the Union members who reported for work. The Union charged that Macy’s lockout was an unfair labor practice. The Board adopted the conclusion of the ALJ, and found that Macy’s violated the NLRA.

In the amended opinion, the panel held that it had jurisdiction because the Union is a “person aggrieved.” The panel rejected Macy’s contention that it could lawfully lock out the employees under Section 8(a)(1) and (3) of the NLRA because it could not show legitimate and substantial business justifications for the lockout. The Board applied the correct legal standard when it considered Dayton Newspapers, Inc., 339 N.L.R.B. 650 (2003). Reviewing the record as a whole, the panel found substantial evidence supporting the Board’s conclusion that Union employees were not clearly and fully informed of conditions they needed to satisfy to be reinstated. Considering Dayton Newspapers, the panel concluded that the lockout was not justified.

Finding no clear abuse of discretion, the panel enforced the Board’s remedial order. The Board did not abuse its discretion in declining to award additional extraordinary remedies, requested by the Union, because the traditional remedies awarded were sufficient to effectuate the policies of the NLRA here. Rejecting Macy’s challenges, the panel held that the Board did not clearly abuse its discretion in ordering make-whole relief pursuant to Thryv, Inc., 372 N.L.R.B. No. 22 (Dec. 13. 2022). The panel agreed with the partial dissent that the Board was not authorized to award “consequential damages,” but the Board did not award such damages here. The panel concluded that the Board’s invocation of Thryy’s make-whole relief framework in this case vindicated a public right. The panel noted that its amendments merely reiterated that it was unable to permit or prohibit any specific forms of relief at this stage. Such determinations must await the forthcoming compliance proceeding, where Macy’s can raise the arguments the dissent urges the panel to consider now.

In the amended partial dissent, Judge Bumatay would hold that the Board had no authority to order the type of monetary relief it did, requiring Macy’s to compensate Union members for direct or foreseeable pecuniary harms incurred as a result of the unlawful lockout, and for ongoing harms accumulating to this day—more than four years since the lockout. Blessing the Board’s authority to impose these remedies would implicate the Seventh Amendment’s right to a jury trial. The Board’s actions were arbitrary and capricious and unsupported by the record. While he agreed with the denial of the Union’s petition for review, he dissented from the denial of Macy’s petition for review and from the grant of the Board’s application for enforcement.

Dissenting from the denial of rehearing en banc, Judge R. Nelson, joined by Judges Callahan, Ikuta, Lee, Bumatay, and VanDyke, wrote that this case should be reheard en banc because the majority erred in affirming the NLRB’s unprecedented award of consequential Thryy damages, which are unauthorized by statute and forbidden by the Seventh Amendment right to a jury trial.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/21/23-188.pdf