11/19/2025: 6th Circuit Rejects Thryv Remedies; 8th Circuit Reverses Home Depot BLM Decision
Preventing employees from writing "BLM" on their uniform fell under special circumstances exception.
In the first case today, the Sixth Circuit rejected Thryv remedies on a number of grounds. In doing so, the Sixth Circuit joins the Fifth and Third Circuits. The Ninth Circuit has affirmed Thryv remedies.
NLRB v. Starbucks Corp., 23-1767 (6th Circuit)
The Sixth Circuit granted the NLRB’s petition for enforcement regarding its finding that Starbucks unlawfully terminated employee Hannah Whitbeck due to anti-union animus, but vacated the Board’s remedial order awarding “direct or foreseeable pecuniary harms” as exceeding its statutory authority under Section 10(c) of the National Labor Relations Act.
Background
Whitbeck worked as a shift supervisor at a Starbucks café in Ann Arbor, Michigan, and led a unionization campaign beginning in January 2022. In February 2022, she violated Starbucks’s two-employee rule by leaving a coworker alone in the store for approximately 30 minutes without notifying supervisors. Starbucks terminated her employment in April 2022, citing this policy violation.
Unfair Labor Practice Finding
Applying substantial evidence review under the burden-shifting framework, the court found the Board established anti-union animus through: (1) disparate treatment—another shift supervisor received only a warning despite multiple violations of the same rule, while Whitbeck with no disciplinary history was fired after one violation; (2) timing—Whitbeck’s discharge occurred shortly after her manager observed her at an NLRB hearing and attended a union “sip-in”; and (3) general anti-union animus—the manager spent three hours at the “sip-in” removing pro-union notes from a community board while speaking to no employees. The court rejected Starbucks’s affirmative defense that it would have terminated Whitbeck regardless of her union activity.
Remedial Authority
The court vacated the Board’s remedial order, holding that Section 10(c)’s authorization for “affirmative action” encompasses only equitable remedies, not the broad monetary damages contemplated under the Board’s Thryv decision.
Textual Analysis: The phrase “affirmative action” is a term of art that federal and state courts, legal scholars, and dictionaries from the early twentieth century consistently used to describe equitable remedies. When Congress enacted the NLRA in 1935, this phrase carried a well-established meaning associated with traditional equitable relief.
Statutory Structure: Section 10(c)’s structure confirms the equitable limitation. Federal courts must enter decrees enforcing the Board’s orders, reflecting equity’s power to modify decrees. The only remedies expressly enumerated—reinstatement and backpay—are equitable. The statute’s exception prohibiting “reinstatement or backpay” for employees discharged for cause would be anomalous if the Board could still award other substantial monetary relief to such employees.
Related Statutes: Congress modeled Title VII’s remedial provision after Section 10(c). When Congress amended Title VII in 1972 to authorize “affirmative action” followed by “or any other equitable relief,” this confirmed that “affirmative action” alone referred only to equity. The Supreme Court held that Title VII provided no authority for compensatory damages until Congress expressly added such authority in 1991. Numerous state antidiscrimination statutes and state court decisions similarly treat “affirmative action” as referring only to equitable relief.
Constitutional Avoidance: Reading Section 10(c) to authorize compensatory damages raises Seventh Amendment concerns. Under SEC v. Jarkesy, the Seventh Amendment guarantees a jury trial for legal claims seeking money damages. The Board’s award of “direct or foreseeable pecuniary harms” constitutes consequential damages—a classic form of legal relief designed to compensate the plaintiff’s loss rather than prevent the defendant’s unjust enrichment. Such remedies serve partly to punish and deter, not solely to restore the status quo.
The court rejected the Board’s argument that Section 10(c)’s phrase “as will effectuate the policies of this Act” grants broad remedial authority beyond equitable remedies. The Board’s citations to its own past cases ordering expansive relief were unpersuasive, as those cases at most reflected monetary relief for losses directly caused by unfair labor practices, arguably derivative of backpay. They did not justify the novel relief of “all direct or foreseeable pecuniary harms” encompassing childcare costs, credit card interest, retirement penalties, and potential loss of homes or vehicles. The Board’s categorical application of this remedy to every unfair labor practice represented a dramatic departure from ninety years of prior practice.
Dissenting Opinion
Judge Stranch dissented on remedies, arguing Congress granted the Board broad discretion to order affirmative action effectuating the NLRA’s policies. The Board has long awarded make-whole remedies exceeding backpay and reinstatement. Thryv remained within equitable boundaries by requiring remedies directly caused by and foreseeable from the unfair labor practice, with safeguards ensuring remedies restore the status quo rather than punish. Under Jarkesy, equitable remedies seek solely to restore the status quo, and Thryv damages compensate employees and reestablish bargaining positions, making them equitable rather than legal.
Significant Cases Cited
SEC v. Jarkesy, 144 S. Ct. 2117 (2024): The Seventh Amendment guarantees a jury trial for legal claims seeking monetary relief designed to punish or deter rather than solely restore the status quo, even when such claims arise from statute rather than common law.
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941): The NLRA’s use of “including” signals examples rather than limitations on the Board’s remedial authority, and Congress deferred to the Board’s expertise in determining particular means to expunge effects of unfair labor practices.
Virginia Electric & Power Co. v. NLRB, 319 U.S. 533 (1943): The Board has wide discretion to fashion remedies that effectuate the policies of the NLRA, and such remedies should stand unless they constitute a patent attempt to achieve ends other than those which effectuate the Act’s policies.
Int’l Union, UAW v. Russell, 356 U.S. 634 (1958): Congress did not establish a general scheme authorizing the Board to award full compensatory damages, and the power to order affirmative relief under Section 10(c) is merely incidental to the primary purpose of stopping and preventing unfair labor practices.
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024): Courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority rather than deferring to the agency’s interpretation of the statute.
Home Depot U.S.A. v. NLRB, 24-1406 (Eight Circuit)
The Eighth Circuit vacated an NLRB order finding that Home Depot violated the National Labor Relations Act when it required an employee to remove “BLM” lettering from their work apron, holding that the employer established a valid “special circumstances” defense justifying the restriction.
Home Depot hired the employee at its New Brighton, Minnesota store in August 2020, approximately three months after George Floyd’s murder less than seven miles away. The employee and others wrote “BLM” on their aprons amid racial issues at the store, including discriminatory conduct by another employee and vandalism of Black History Month displays. When management learned of the display during meetings about these workplace concerns, they directed the employee to remove it, citing the company’s dress code policy prohibiting “causes or political messages unrelated to workplace matters.” The employee refused and resigned the next day.
The NLRB’s three-member majority reversed an administrative law judge’s dismissal of the complaint, concluding that the employee’s refusal to remove the BLM message was protected concerted activity under Section 7 as a “logical outgrowth” of employees’ prior complaints about racial mistreatment. The Board rejected Home Depot’s special circumstances defense, finding insufficient evidence of nonspeculative safety risks, employee dissension, or harm to the company’s public image.
The Eighth Circuit assumed without deciding that the employee engaged in protected activity but held that the Board improperly evaluated Home Depot’s special circumstances defense. The court emphasized that this case involved restricting messages on employer-required uniforms rather than prohibiting workplace organizing activity altogether, and that Home Depot offered alternative ways for the employee to express support for racial equality. The court found the Board failed to properly consider the unique context: the store’s proximity to George Floyd’s murder, months of protests and civil unrest that twice forced the store to close, a neighboring store being looted, and divided opinions among employees and the public about the BLM movement during this period.
The court concluded that Home Depot demonstrated legitimate safety concerns and public image interests that justified its limited restriction on apron displays. The company consistently enforced its policy against politically controversial messages while encouraging other workplace-related personalization, and it made substantial efforts to address racial issues at the store through employee discipline, workplace discussions, and alternative messaging options. The Board improperly prioritized employee interests without adequately balancing the employer’s legitimate business concerns under the special circumstances doctrine.
Significant Cases Cited
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Established that Section 7 protections must be balanced against employer management interests and that “special circumstances” may justify restrictions on otherwise protected activity.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Held that Section 7 protections do not prevent employers from making reasonable rules covering employee conduct on company time because working time is for work.
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956): Required accommodation between employee Section 7 rights and employer interests with as little destruction of one as is consistent with maintenance of the other.
Cintas Corp. v. NLRB, 589 F.3d 905 (8th Cir. 2009): Established that special circumstances may justify prohibition on wearing messages in customer-facing jobs when business justifications are demonstrated.
McDonnell Douglas Corp. v. NLRB, 472 F.2d 539 (8th Cir. 1973): Required the Board to consider the importance of proffered justifications and properly balance competing interests rather than merely paying lip service to the balancing test.