On January 21, 2025, the Ninth Circuit United States Court of Appeals determined the National Labor Relations Board ("NLRB" or "Board") did not abuse its discretion by expanding its monetary remedies. This 2-1 ruling upheld an order by the NLRB requiring Macy's ("the Company") to provide expanded "make-whole" remedies to workers who experienced unfair labor practices. Notably, this Ninth Circuit decision creates a split among the United States Court of Appeals regarding remedies available to the NLRB, which increases the likelihood of a Supreme Court review in the future.
Background
After months of failed negotiations regarding a successor collective bargaining agreement, Union members rejected a final offer from Macy's proposing terms related to wages and pensions. Subsequently, the Union went on strike from September 4, 2020, to December 4, 2020. In December 2020, the Union rejected an additional offer from Macy's and notified the Company that it was making "an unconditional offer to return our members to work immediately." In response, the Company asked the Union members not to return to work, which ultimately led to a dispute regarding the Company's lockout of Union members. The Union filed its original unfair practice charge against Macy's in December 2020 (later amended to February 2021), alleging unfair labor practices when it locked out Union members. On February 11, 2021, the NLRB filed its complaint asserting the Company violated Section 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA").
The Administrative Law Judge ("ALJ") ruled against Macy's, concluding the Company did violate the NLRA since it did not provide the Union "with a timely, clear, or complete offer, which set[s] forth the conditions necessary to avoid the lockout." The ALJ then suggested remedies that would make the Union whole, including "any losses of pay and benefits that they may have suffered by reason of the lockout,"...
