Preserve It or Lose It: Third Circuit Requires Section 10(e) Preservation to Challenge Thryv Make‑Whole Remedies and Affirms Bad‑Faith Bargaining Based on the Substance of Employer Proposals

Preserve It or Lose It: Third Circuit Requires Section 10(e) Preservation to Challenge Thryv Make‑Whole Remedies and Affirms Bad‑Faith Bargaining Based on the Substance of Employer Proposals

Introduction

In this nonprecedential decision, the U.S. Court of Appeals for the Third Circuit denied PG Publishing Co., Inc.’s petition for review and granted the National Labor Relations Board’s (NLRB or Board) cross-application for enforcement arising from a prolonged bargaining dispute with the Newspaper Guild of Pittsburgh/CWA Local 38061 (the Guild). The case centers on three core unfair labor practice (ULP) findings: (1) bad-faith bargaining in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA), (2) a premature declaration of impasse followed by unilateral implementation of terms, and (3) unlawful surveillance (or, more precisely, creating the impression of surveillance) of protected activity. It also addresses, in a consequential procedural ruling, whether the court could reach PG Publishing’s challenge to the Board’s make‑whole remedies, including the Thryv consequential-damages remedy and an award of the Guild’s bargaining expenses.

The Third Circuit’s holdings are notable on two fronts. First, the court endorses a “totality-of-conduct” approach that allows the substance of an employer’s proposals—especially where they would leave employees with fewer rights than baseline statutory protections—to be evidence of bad faith. Second, the court underscores that Section 10(e)’s issue-exhaustion requirement is jurisdictional: parties must raise their objections to Board remedies before the Board, or the court cannot consider them on review—even when later appellate decisions (such as the Third Circuit’s own Starbucks decision) might support the challenge.

Summary of the Opinion

  • Bad-faith bargaining: Substantial evidence supported the ALJ’s (and Board’s) finding that PG Publishing bargained in bad faith. The employer’s proposals, viewed as a whole, would have stripped the bargaining unit of core contractual protections (e.g., unilateral control over hours, expanded subcontracting via “stringers,” a greatly expanded no-strike clause, and scaled-back healthcare). The ALJ reasonably inferred bad faith because employees would have enjoyed greater rights without any contract than under the employer’s package—“at odds with the basic concept of a collective-bargaining agreement.”
  • Premature impasse and unilateral implementation: Applying the five Taft Broadcasting factors, the court agreed that no impasse existed on July 27, 2020. Bad faith is incompatible with a lawful impasse; and contemporaneous circumstances—including the Guild’s stated willingness to meet (July 20, 2020) and unfinished discussion of the Guild’s September 2019 proposal amid the COVID-19 pandemic—meant further bargaining was not futile. Unilateral implementation therefore violated Sections 8(a)(1) and (5).
  • Unlawful surveillance: Photographs in the record showed security guards hired by PG Publishing appearing to photograph Guild rally participants outside the publisher’s home. With no credible alternative explanation (e.g., trespass documentation) supported by the record, the ALJ properly found an unlawful “impression of surveillance” under Section 8(a)(1).
  • Remedies challenge barred by Section 10(e): PG Publishing did not preserve its challenge to the Board’s Thryv make‑whole remedy (compensation for direct or foreseeable pecuniary harms) or to the award of the Guild’s bargaining expenses. Because the employer failed to present specific grounds for these objections to the Board as required by 29 C.F.R. § 102.46, the court lacked jurisdiction under 29 U.S.C. § 160(e) to consider them. The court rejected the argument that later-decided case law (e.g., Starbucks) excused the failure to exhaust.

Analysis

Precedents Cited and Their Influence

  • Deference and standard of review:
    • Trimm Assocs., Inc. v. NLRB, 351 F.3d 99 (3d Cir. 2003) and Spectacor Mgmt. Grp. v. NLRB, 320 F.3d 385 (3d Cir. 2003) confirm the Third Circuit’s deferential posture, applying substantial-evidence review to the Board’s factual findings and plenary review to legal questions.
    • Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404 (1982) underscores that the Board’s expertise in assessing the “dynamics of collective bargaining” merits special deference.
    • NLRB v. Starbucks Corp., 125 F.4th 78 (3d Cir. 2024) is cited for the review framework when the Board adopts an ALJ’s decision and, later, for issue-exhaustion principles; it also looms in the background on remedial authority.
  • Bad-faith bargaining and totality:
    • Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981) and Teamsters Local 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990) support assessing the “totality of conduct” and recognizing that rigid adherence to one-sided proposals can imply bad faith.
    • In re Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001) similarly grounds the totality analysis in Board law.
    • District Hospital Partners, L.P. v. NLRB, 141 F.4th 1279, 1294 (D.C. Cir. 2025) is particularly salient: when proposals would leave employees with fewer rights than statutory baselines, bad-faith inferences are appropriate. The court used this principle to approve the ALJ’s inference that PG Publishing’s package was antithetical to a genuine collective-bargaining agreement.
  • Impasse and unilateral change:
    • Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991) restates the unilateral-change rule: changing terms without a lawful impasse violates Sections 8(a)(1) and (5).
    • Saunders House v. NLRB, 719 F.2d 683 (3d Cir. 1983) and Taft Broadcasting, 163 NLRB 475 (1967) provide the five-factor framework for determining impasse (bargaining history, good faith, length, importance of disputed issues, parties’ contemporaneous understanding).
    • Industrial Union of Marine & Shipbuilding Workers of Am., AFL-CIO v. NLRB, 320 F.2d 615, 621 (3d Cir. 1963): where deadlock stems from one party’s bad faith, there is no “legally cognizable impasse” to justify unilateral action. The ALJ, and the court, leaned heavily on this principle.
  • Surveillance (and the impression of surveillance):
    • Hanlon & Wilson Co. v. NLRB, 738 F.2d 606, 613 (3d Cir. 1984) and U.S. Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982) recognize that creating the impression of surveillance can violate Section 8(a)(1) even absent proof of actual coercion if the conduct would reasonably tend to interfere with Section 7 rights.
  • Section 10(e) issue-exhaustion and preserving objections to remedies:
    • 29 U.S.C. § 160(e) imposes a jurisdictional bar: courts may not consider objections “not urged before the Board,” absent extraordinary circumstances.
    • 29 C.F.R. § 102.46 requires exceptions to specify the issues and concisely state grounds; mere quotation of a remedy, without articulated rationale, is insufficient.
    • NLRB v. FedEx Freight, Inc., 832 F.3d 432 (3d Cir. 2016) and Starbucks, 125 F.4th at 94, articulate the “adequate notice” standard for preservation.
    • 3484, Inc. v. NLRB, 137 F.4th 1093, 1115 (10th Cir. 2025) and Nova Southeastern Univ. v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015) reinforce that undeveloped or generic exceptions do not preserve an issue—especially challenges to Thryv’s scope.
    • Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022) is the Board’s decision authorizing make‑whole relief for “direct or foreseeable pecuniary harms,” beyond traditional backpay. The Third Circuit did not reach the merits of Thryv’s validity here due to forfeiture under § 10(e).

Legal Reasoning

1) Bad-Faith Bargaining: Substance Counts in the Totality

Section 8(a)(5) obligates employers to bargain in good faith with employee representatives; the analysis is holistic. While parties need not concede positions they genuinely hold, persistent insistence on proposals that effectively hollow out union rights can support an inference of bad faith. The ALJ found, and the court agreed, that PG Publishing’s package would:

  • Authorize expanded subcontracting (including via “stringers”), encroaching on bargaining-unit work;
  • Grant unilateral employer control over work hours;
  • Significantly expand the no-strike clause; and
  • Scale back healthcare benefits.

Crucially, the ALJ concluded that accepting the employer’s proposals would have left employees worse off than having no contract—“at odds with the basic concept of a collective-bargaining agreement.” The court emphasized that there is no categorical rule insulating the substance of proposals from scrutiny; rather, the “totality of conduct”—including the content and combined effect of proposals—can evince bad faith. That proposition tracks the D.C. Circuit’s District Hospital Partners decision and longstanding Board precedent.

2) No Lawful Impasse: Bad Faith Precludes Impasse, and Futility Was Not Shown

The court applied the Taft Broadcasting five-factor test and affirmed the ALJ’s finding that no impasse existed on July 27, 2020:

  • Good faith: The most important factor weighed heavily against impasse. Because PG Publishing bargained in bad faith, “there can be no legally cognizable impasse” to justify unilateral changes (Industrial Union of Marine & Shipbuilding).
  • Contemporaneous understanding: The Guild expressly sought a meeting on July 20, 2020 to walk through its September 2019 proposal. PG Publishing did not respond before declaring impasse a week later. The parties had not finished discussing the Guild’s proposal, and pandemic disruptions did not make further bargaining futile.
  • Length of negotiations and importance of issues: Although negotiations had been protracted and involved core terms (wages, hours, jurisdiction), those facts did not outweigh the employer’s bad faith and the realistic prospect of continued dialogue.

With no lawful impasse, unilateral implementation violated Sections 8(a)(1) and (5). The court also noted that some implemented terms were more favorable to employees than the “Final Offer,” but that did not cure the underlying violation; the point is the absence of a lawful impasse, not the relative generosity of terms.

3) Unlawful Surveillance: “Impression of Surveillance” Is Enough

Section 8(a)(1) proscribes actions that would reasonably tend to interfere with Section 7 rights. The ALJ credited evidence that security guards hired by PG Publishing appeared to photograph rally participants outside the publisher’s home. Photographs in the record corroborated that conduct. Without record support for an alternative, legitimate purpose, the ALJ inferred an unlawful “impression of surveillance.” The court endorsed this reasoning under Hanlon & Wilson and U.S. Steel: actual coercion or disruption is not required; the reasonable impression suffices.

4) Remedies: Section 10(e) Bars Unpreserved Challenges to Thryv and Bargaining-Expense Awards

The Board affirmed traditional make‑whole relief and, in addition, ordered compensation under Thryv for “direct or foreseeable pecuniary harms” and required PG Publishing to reimburse the Guild’s bargaining expenses incurred during periods of bad-faith bargaining. PG Publishing objected generally before the Board but failed to articulate the grounds required by 29 C.F.R. § 102.46. As a result, Section 10(e) deprived the court of jurisdiction to review the remedies challenge.

The court rejected PG Publishing’s argument that it should be excused from exhaustion because the Third Circuit’s later Starbucks decision (holding the Board exceeded its authority by awarding compensatory damages beyond amounts unlawfully withheld) post-dated the ALJ’s decision. The panel found nothing prevented PG Publishing from raising a Thryv-based objection in its exceptions; failure to do so meant forfeiture. Accordingly, the court left the Board’s Thryv and bargaining-expense remedies intact without opining on their substantive validity.

Impact

  • Substantive proposals can prove bad faith: This decision reinforces that in the Third Circuit, the content of an employer’s bargaining proposals—considered collectively—can demonstrate bad-faith bargaining if they materially undercut core contractual protections and leave employees worse off than the status quo without a contract.
  • Heightened caution around unilateral implementation: Employers cannot declare impasse where their own bad faith contributed to deadlock, and cannot rely on negotiation length or the importance of issues to override evidence that further talks are not futile—especially where the union has requested additional bargaining.
  • “Impression of surveillance” risk: Deploying security personnel who visibly photograph union activity can, without more, violate Section 8(a)(1). Employers should ensure any documentation of potential misconduct is narrowly tailored, justified, and documented—and avoid conduct that reasonably appears to target protected activity.
  • Section 10(e) preservation is decisive for remedies: The court’s jurisdictional bar is a practical warning. Challenges to Thryv make‑whole awards and extraordinary remedies like bargaining-expense reimbursement must be specifically presented to the Board with articulated legal grounds. Later supportive case law (e.g., Starbucks) will not ordinarily excuse non-exhaustion.
  • Open question in the Third Circuit on Thryv’s scope: Because the panel declined to reach the merits, the Third Circuit’s post‑Starbucks view on the validity and contours of Thryv’s consequential-damages regime remains unresolved in a precedential opinion. Litigants should expect the Board to continue seeking Thryv relief and should preserve any statutory or remedial authority objections at the Board level.
  • Union bargaining expenses: The Board’s award of the union’s bargaining expenses—affirmed here due to forfeiture—signals the continued availability of robust remedial tools where the Board finds prolonged bad-faith bargaining. Parties should anticipate and specifically address such remedies during exceptions practice.

Complex Concepts Simplified

  • Bad-faith bargaining (NLRA § 8(a)(5)): An employer must meet and confer in good faith with the union over mandatory subjects (wages, hours, and other terms/conditions of employment). The “totality of conduct” test allows consideration of both process and substance: take‑it‑or‑leave‑it postures, extreme proposals that gut union rights, or strategic delay can evidence bad faith.
  • Impasse: The point at which further bargaining would be futile on a mandatory subject. The Board uses the Taft Broadcasting five-factor test. If one party’s bad faith causes the stalemate, there is no lawful impasse, and unilateral changes violate the Act.
  • Unilateral change doctrine: Absent a valid impasse, an employer cannot unilaterally change existing terms and conditions of employment; doing so violates Sections 8(a)(1) and (5).
  • “Impression of surveillance”: Even if an employer is not actually spying, conduct that would make a reasonable employee think their protected activity is being watched or recorded can violate Section 8(a)(1). Visible photographing of picketers or rally participants is a common example.
  • Thryv remedy: The Board’s 2022 decision allows make‑whole relief that includes compensation for “direct or foreseeable pecuniary harms,” beyond traditional backpay (e.g., out‑of‑pocket costs flowing from the ULP). Courts are actively scrutinizing the scope of this remedy; preservation is essential.
  • Section 10(e) issue-exhaustion: To obtain judicial review of an objection to a Board order, a party must have presented that objection (with developed grounds) to the Board. Failure to do so generally strips the court of jurisdiction to consider the issue on appeal.
  • “Stringer”: A freelance journalist who is not a staff employee; expanded use of stringers can erode bargaining-unit work if not carefully regulated in the CBA.
  • No-strike clause: A contractual promise by the union not to strike for the life of the agreement. Overly broad expansions can significantly curtail protected concerted activity if not balanced by grievance/arbitration mechanisms and other protections.

Conclusion

PG Publishing Co., Inc. v. NLRB offers two principal lessons. Substantively one-sided bargaining proposals can, when viewed in context, establish bad faith under Section 8(a)(5)—especially when the package leaves employees worse off than statutory baselines and contravenes the very rationale for a collective-bargaining agreement. And procedurally, Section 10(e) is unforgiving: objections to the Board’s remedial orders—including Thryv consequential damages and bargaining-expense awards—must be clearly raised before the Board or they are jurisdictionally barred on appeal.

Although designated “not precedential,” the court’s reasoning is firmly anchored in Supreme Court and Third Circuit precedent and is likely to guide future disputes in this circuit. For employers, the decision is a caution against anchoring negotiations around proposals that strip core protections or declaring impasse amid ongoing prospects for progress. For unions, it validates the strategic importance of documenting bargaining conduct and potential surveillance. For all parties, it underscores disciplined exceptions practice before the Board: preserve every substantive and remedial challenge with specificity, or risk forfeiture in court.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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