The NLRB’S Authority to Make Workers Whole

Authors

• Wanny Mei, Fordham University School of Law

Keywords

Employee; Employee Rights; Employer; Jury Trial; Labor Law; Labor Law Remedies; Legislative History; Loper Bright Enterprises Vs. Raimondo; Make-Whole Remedies; National Labor Relations Act; National Labor Relations Board; NLRA, NLRB; Public Rights; SEC V. Jarkesy; Seventh Amendment; Statutory Authority; Thryv Inc.; Unfair Labor Practices; Unions

Abstract

In December 2022, the National Labor Relations Board (NLRB or the “Board”) announced a modified make-whole remedial framework in Thryv, Inc.For all standard make-whole relief orders, the Board would order relief for direct or foreseeable pecuniary harms that employees suffer as a result of an unfair labor practice. Proponents of this remedial design assert that this is consistent with the Board’s authority under section 10(c) of the National Labor Relations Act (NLRA). On the other hand, opponents find that this design exceeds the Board’s statutory authority and conflicts with the Seventh Amendment right to a jury trial.

This Note argues that the Thryv make-whole relief framework is a permissible exercise of the Board’s authority on both statutory and constitutional grounds. The proper approach toward the review of NLRB decisions is one that gives respect to the Board’s discretion and expertise in labor relations. Furthermore, Thryv remedies are equitable remedies that do not raise Seventh Amendment issues. Even if courts find an award of legal relief, this remedial framework fits within the public rights exception to the jury trial requirement. Ultimately, Thryv is consistent with Congress’s intent for the Board to have broad remedial discretion to give effect to the public policies of the NLRA.

Recommended Citation

Wanny Mei, The NLRB’S Authority to Make Workers Whole, 94 Fordham L. Rev. 2293 (2026).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss6/6