02/04/2026: Fifth Circuit Continues to Reject Thryv Remedies
Second Circuit upholds NLRB's subpoena power in contempt proceedings.
Harvard Maintenance v. NLRB, 24-60523, (Fifth Circuit)
The Fifth Circuit ruled that while the NLRB properly found Harvard Maintenance violated the NLRA by threatening and unlawfully terminating employee Carina Cruz for protected activity, the Board exceeded its statutory authority by ordering “consequential damages” beyond traditional backpay remedies.
Cruz, a cleaner employed by Harvard Maintenance for 18 years, complained about workplace conditions and alleged collective bargaining agreement violations. After she indicated she would file complaints with her union and the NLRB, supervisor Juliana Perdoda allegedly warned her she could face suspension or warnings. In March 2020, Cruz was told to stop “interfering” when discussing workplace concerns with a coworker, then was suspended and eventually terminated.
An Administrative Law Judge found Harvard Maintenance violated Section 8(a)(1) of the NLRA through coercive statements and unlawful discharge. The court applied the Wright Line framework, requiring the General Counsel to prove: (1) protected activity, (2) employer knowledge, (3) adverse action, and (4) protected activity as a motivating factor. The court found substantial evidence supported these findings, noting the suspicious timing of discipline within 24 hours of protected conduct, disparate treatment compared to other employees who received lesser punishment for worse behavior, and lack of investigation before termination.
However, the court vacated the NLRB’s remedy ordering Harvard Maintenance to compensate Cruz for “any direct or foreseeable pecuniary harms” suffered from the unlawful discharge. Following its recent decision in Hiran Management, the Fifth Circuit held that Section 10(c) of the NLRA authorizes only equitable remedies, not legal remedies like consequential damages. The court determined the NLRB’s Thryv remedy—which could include credit card penalties, medical expenses, increased transportation costs, and other indirect harms—constitutes compensatory damages traditionally awarded by courts of law, not equity. The court rejected the Board’s argument that the remedy was equitable because it aimed to “restore the status quo,” finding this interpretation would improperly transform all compensatory damages into equitable relief.
Judge Dennis dissented on jurisdictional grounds, arguing the court lacked authority to consider the Thryv remedy challenge because Harvard Maintenance failed to raise it before the Board.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing whether protected activity motivated adverse employment actions in unfair labor practice cases.
NLRB v. Renew Home Health, 95 F.4th 231 (5th Cir. 2024): Section 7 of the NLRA protects employees’ right to engage in concerted activities for mutual aid or protection; Section 8(a)(1) violations assessed by whether statements tend to be coercive.
Hiran Management, Inc. v. NLRB, 157 F.4th 719 (5th Cir. 2025): Section 10(c) of the NLRA limits the NLRB to equitable remedies only, and the Thryv consequential damages remedy constitutes impermissible legal relief.
SEC v. Jarkesy, 603 U.S. 109 (2024): Monetary remedies are legal if designed to punish or deter, but equitable if designed solely to restore the status quo through restitution or disgorgement.
Mertens v. Hewitt Associates, 508 U.S. 248 (1993): Money damages are the classic form of legal relief; equitable remedies include injunctions, restitution, and mandamus but exclude compensatory or consequential damages.
NLRB v. Universal Smart Contracts., LLC, 24-149, (Second Circuit)
The Second Circuit affirmed a district court’s enforcement of four NLRB administrative subpoenas against Texas-based companies and their owner, rejecting constitutional and procedural challenges to the enforcement action brought in New York federal court.
The case stemmed from a 2012 termination of Fred Pflantzer, a New York City tour guide unlawfully fired for attempting to unionize. After securing a $66,794 judgment against New York Party Shuttle and affiliates, the NLRB issued subpoenas to related companies owned by Charles Thomas Schmidt seeking documents to determine derivative liability when the judgment debtors claimed inability to pay.
The appellants challenged subject-matter jurisdiction, personal jurisdiction, and venue, arguing the NLRB’s “inquiry” was not “carried on” in New York as required by Section 161(2) of the NLRA. The Second Circuit rejected these arguments, holding that Section 161(2)’s venue requirements are not jurisdictional under modern Supreme Court precedent requiring Congress to “clearly state” jurisdictional intent. Venue was proper because the Manhattan Regional Office’s investigation—including Pflantzer’s employment, termination, and enforcement proceedings—all occurred in the Southern District. The Contempt Branch’s involvement from Washington, D.C. did not sever this connection.
The court held the NLRA authorizes nationwide service of process in subpoena enforcement proceedings. Because a federal statute authorized nationwide service, the appellants’ lack of contacts with New York was irrelevant—only their U.S. residency mattered for due process. The court rejected claims that litigating in New York was unduly burdensome where appellants failed to quantify expenses or identify burdened witnesses.
The court upheld the denial of transfer to Texas and the award of attorneys’ fees and costs under Federal Rules 37 and 45, finding appellants “repeatedly attempted to evade service.” However, it dismissed for lack of jurisdiction the challenge to the specific fee amount ($38,123) because appellants failed to file a timely notice of appeal after the district court’s subsequent order.
Significant Cases Cited
Boechler, P.C. v. Commissioner of Internal Revenue, 596 U.S. 199 (2022): Procedural requirements in federal statutes are not jurisdictional unless Congress has “clearly stated” they are.
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998): Subject-matter jurisdiction specifically refers to courts’ statutory or constitutional power to adjudicate a case, not other uses of the term “jurisdiction.”
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985): Defendants must present a “compelling case” that exercising personal jurisdiction would be unreasonable.
Mariash v. Morrill, 496 F.2d 1138 (2d Cir. 1974): When federal statutes authorize nationwide service of process, defendants’ presence within the United States satisfies minimum contacts for due process.