Section 10(e) as a Jurisdictional Bar to Unpreserved Challenges to NLRB “Thryv” Make-Whole Relief

1. Introduction

This petition for review and cross-application for enforcement arose from Trader Joe’s discipline of a Houston “crewmember,” Jill Groeschel, after she repeatedly raised COVID-19 health-and-safety concerns and later filed unfair labor practice charges with the National Labor Relations Board (“NLRB” or “Board”). Groeschel alleged that Trader Joe’s escalated scrutiny of her conduct, issued a written warning, and ultimately suspended and discharged her in retaliation for protected concerted activity (Section 7) and for filing Board charges (Section 8(a)(4)).

The NLRB (affirming an ALJ in relevant part) found Trader Joe’s violated Section 8(a)(1) by issuing the written warning, and violated Sections 8(a)(4) and (1) by suspending and terminating her. The Board also ordered a “modified” make-whole remedy incorporating the Board’s “Thryv” approach—compensation for “all direct or foreseeable pecuniary harms,” including certain job-search/interim-employment expenses even if exceeding interim earnings. Trader Joe’s sought appellate reversal on liability and attacked the legality of the Thryv-type remedy.

The Fifth Circuit denied Trader Joe’s petition and enforced the Board’s order. On the remedial issue, however, the court held it lacked jurisdiction because Trader Joe’s failed to properly present its objection to the Board, and no exception applied.

2. Summary of the Opinion

• Liability affirmed: Substantial evidence supported findings that Trader Joe’s discipline was motivated (at least in part) by animus toward Groeschel’s protected concerted activity (COVID safety advocacy) and by retaliatory motive linked to her NLRB charges.
• Wright Line applied: The court used the Board’s mixed-motive framework from Wright Line, 251 NLRB 1083 (1980), as approved by NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983).
• Affirmative defense rejected: Trader Joe’s failed to prove it would have taken the same adverse actions absent protected activity; comparator evidence was not “truly analogous.”
• Remedy challenge dismissed for lack of jurisdiction: Under Section 10(e), objections not urged before the Board cannot be considered on review absent “extraordinary circumstances.” The court treated Section 10(e) as a jurisdictional bar and found Trader Joe’s did not properly preserve a legal challenge to the Thryv remedy.

3. Analysis

3.1 Precedents Cited

A. Standards of review and deference to the NLRB

• In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707 (5th Cir. 2018): invoked for the proposition that judicial review of NLRB orders is “limited and deferential.”
• IBEW, Loc. Unions 605 & 985 v. NLRB, 973 F.3d 451 (5th Cir. 2020): supplies the Fifth Circuit’s articulation of “substantial evidence” (more than a scintilla, less than a preponderance).
• NLRB v. Allied Aviation Fueling, 490 F.3d 374 (5th Cir. 2007) and Ill. Cent. R.R. Co. v. Norfolk & W. Ry. Co., 385 U.S. 57 (1966): used to stress that appellate courts do not reweigh evidence or make credibility determinations under substantial-evidence review.
• Flex Frac Logistics, L.L.C. v. NLRB, 746 F.3d 205 (5th Cir. 2014): cited both for de novo review of legal conclusions and for the “rare and unusual cases” admonition regarding upsetting Board factfinding.

These authorities frame the court’s posture: it accepts the Board/ALJ’s permissible inferences so long as substantial evidence supports them. This deference is central to how circumstantial evidence of animus (timing, departures from normal practices, and investigative shortcomings) became outcome-determinative.

B. Protected concerted activity, mixed motives, and the Wright Line framework

• Reef Indus. v. NLRB, 952 F.2d 830 (5th Cir. 1991): cited for the baseline proposition that disciplining employees for protected concerted activity violates Section 8(a)(1).
• New Orleans Cold Storage & Warehouse Co. v. NLRB, 201 F.3d 592 (5th Cir. 2000) and Wright Line, 251 NLRB 1083 (1980): establish the motivation-based framework for Section 8(a)(1) claims when employer motive is contested.
• NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983) (and its note that it was “abrogated on other grounds” by Dir., Off. of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994)): relied upon as the Supreme Court approval of Wright Line and for the burden-shifting structure.
• Adams & Assocs., Inc. v. NLRB, 871 F.3d 358 (5th Cir. 2017): clarifies that protected activity need only be “a substantial or motivating factor,” not the sole factor.
• Cordua Rests., Inc. v. NLRB, 985 F.3d 415 (5th Cir. 2021): the court used Cordua’s three-part circumstantial proof structure (protected activity; employer knowledge; animus) and Cordua’s acceptance of “faulty investigation” as significant evidence of unlawful motive.
• NLRB v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452 (5th Cir. 1983) and NLRB v. McCullough Env't. Servs., Inc., 5 F.3d 923 (5th Cir. 1993): undergird the court’s insistence that motive findings are not “lightly displace[d]” and may stand even if competing inferences exist.
• NLRB v. Delta Gas, Inc., 840 F.2d 309 (5th Cir. 1988): cited for the employer’s burden on the Wright Line affirmative defense (would have taken the same action absent protected conduct).

The court’s application of these cases reinforces a practical rule: once the Board plausibly connects protected activity to discipline through circumstantial indicia (especially deviations from normal practices and timing), the employer’s “same action anyway” defense must be proven with concrete, genuinely comparable evidence—not abstract discretion or generalized assertions.

C. “Concerted” activity that looks individual; “logical outgrowth” doctrine

• Blue Circle Cement Co. v. NLRB, 41 F.3d 203 (5th Cir. 1994): used for the “logical outgrowth” concept—seemingly individual activity can be protected if tied to prior group activity in employees’ mutual interest.
• Mobil Expl. & Producing U.S., Inc. v. NLRB, 200 F.3d 230 (5th Cir. 1999): cited to reject the notion that protected concerted activity must “look toward group action”; even two-person statements can be concerted where they relate to prior group concerns.

These precedents mattered for Trader Joe’s attempt to treat Groeschel’s 401(k)-lawsuit inquiry as purely individual, and thus unprotected. The court accepted the Board’s view that Groeschel’s inquiry (seeking information that could affect coworkers) fit within the protected-conduct umbrella.

D. Comparator evidence and “truly analogous” situations

• Tomatek, Inc., 333 NLRB 1350 (2001) and Fluor Daniel, Inc., 304 NLRB 970 (1991): cited for the principle that comparator evidence can support an employer’s “same action anyway” defense only if the comparator is genuinely comparable.
• Remington Lodging & Hosp., L.L.C. v. NLRB, 847 F.3d 180 (5th Cir. 2017): used both for waiver principles and for the requirement that comparator situations be truly analogous.
• Dixon v. Toyota Motor Credit Corp., 794 F.3d 507 (5th Cir. 2015): cited for waiver of arguments first raised in a reply brief.

E. Evidence of animus: timing and investigations

• NLRB v. ADCO Elec., Inc., 6 F.3d 1110 (5th Cir. 1993) and Valmont Indus., Inc. v. NLRB, 244 F.3d 454 (5th Cir. 2001): cited for the significance of temporal proximity as circumstantial evidence of unlawful motive.
• Elec. Data Sys. Corp. v. NLRB, 985 F.2d 801 (5th Cir. 1993): similarly supports inferring animus from discipline within about a month of protected conduct.
• NLRB v. Esco Elevators, Inc., 736 F.2d 295 (5th Cir. 1984) and Cordua Rests., Inc. v. NLRB, 985 F.3d 415 (5th Cir. 2021): used to treat a “faulty investigation” as “significant” evidence of unlawful motive; investigations must be “tailored to [their] purpose.”

F. Section 10(e) issue-preservation as jurisdictional; “residual jurisdiction”; rule of orderliness

• Indep. Elec. Contractors of Hous., Inc. v. NLRB, 720 F.3d 543 (5th Cir. 2013): cited for the notice-and-opportunity purpose behind issue-preservation requirements.
• Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982): treated as controlling Supreme Court authority that Section 10(e) bars judicial review (the majority characterized this as jurisdictional).
• Hallmark Phoenix 3, L.L.C. v. NLRB, 820 F.3d 696 (5th Cir. 2016), NLRB v. Hous. Bldg. Servs., Inc., 128 F.3d 860 (5th Cir. 1997), Gulf States Mfg. Inc. v. NLRB, 704 F.2d 1390 (5th Cir. 1983), and NLRB v. Mooney Aircraft, Inc., 310 F.2d 565 (5th Cir. 1962): cited as Fifth Circuit applications of Section 10(e) to preclude unpreserved issues.
• NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953): relied upon to hold that a generalized statement that a remedy is “contrary to law” does not satisfy Section 10(e)’s presentment requirement; the panel analogized this to Trader Joe’s “Thryv was wrongly decided” exception.
• NLRB v. Saint-Gobain Abrasives, Inc., 426 F.3d 455 (1st Cir. 2005): cited for “residual jurisdiction” to consider a first-time challenge where a remedy is “obviously beyond the Board’s authority.”
• NLRB v. Robin Am. Corp., 667 F.2d 1170 (5th Cir. 1982) and D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013): used to narrow “extraordinary circumstances”; the panel held no extraordinary circumstances exist where legal arguments were available “from the outset.”
• United States v. Walker, 302 F.3d 322 (5th Cir. 2002), Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298 (5th Cir. 2018), and United States v. Brune, 991 F.3d 652 (5th Cir. 2021): cited in discussing the rule of orderliness and when a panel may disregard conflicting circuit precedent because of Supreme Court authority.
• Lion Elastomers, L.L.C. v. NLRB, 108 F.4th 252 (5th Cir. 2024): referenced to note a tension; the panel stated it was “not bound” by Lion Elastomers because it “directly contradicts Woelke without citing it.”

G. Thryv remedy context and circuit split

• Thryv, Inc., 372 NLRB No. 22: defines “direct harms” and “foreseeable harms” and expands “make-whole” relief; the opinion notes it was “order vacated in part on other grounds” in Thryv, Inc. v. NLRB, 102 F.4th 727 (5th Cir. 2024).
• Macy's Inc. v. NLRB, 127 F.4th 58 (9th Cir. 2025) and NLRB v. Starbucks Corp., 125 F.4th 78 (3d Cir. 2024): cited to show a circuit split over Thryv-type remedial authority.
• Hiran Mgmt., Inc. v. NLRB, __ F.4th __, 2025 WL 3041862 (5th Cir. Oct. 31, 2025): acknowledged as Fifth Circuit authority holding the Board lacks statutory authority for the Thryv remedy, but the panel emphasized that Hiran did not make the remedy “obviously beyond” the Board’s authority for purposes of Section 10(e) residual jurisdiction given the ongoing split.

3.2 Legal Reasoning

A. Written warning: Section 8(a)(1) and animus inferred from departures in practice

The court accepted the Board’s inference that Trader Joe’s shifted from neutrality to hostility toward Groeschel’s safety advocacy, and that this animus was a motivating factor in the October 2021 written warning. Several threads drove the inference:

• Escalation and specificity of recordkeeping: Managers began recording Groeschel’s safety complaints in Dayforce—something not done previously—so the contemporaneous “pattern” relied on by upper management was built partly from entries reflecting protected activity.
• Upper-management involvement: Regional VP Hancock personally reviewed Groeschel’s file and pushed written discipline despite testimony that vice presidents did not typically involve themselves in “mundane disputes.”
• “Pattern” rationale built from protected activity: The court emphasized that three of the five contemporaneous discipline-related entries were tied to protected activity (concerns about crowded registers, switching roles to avoid a maskless customer, delayed wellness checks).

Under Cordua Rests., Inc. v. NLRB and Adams & Assocs., Inc. v. NLRB, the protected conduct did not need to be the only reason for discipline—only a substantial or motivating factor. The court then held Trader Joe’s failed to prove the “same action anyway” defense because its single proposed comparator (employee Hugh Bell) was not “truly analogous” in context, location, and tone.

B. Suspension and termination: Section 8(a)(4) retaliation plus derivative Section 8(a)(1)

For the later adverse actions, the court emphasized three interlocking circumstantial indicators of retaliatory motive:

• Temporal proximity: Suspension occurred roughly one month after the first NLRB charge; termination occurred about ten days after the second charge. The court treated this timing as powerful evidence under Valmont Indus., Inc. v. NLRB and Elec. Data Sys. Corp. v. NLRB.
• “Tainted” employee complaints: The court accepted the Board’s view that the “flurry” of coworker complaints was intertwined with Groeschel’s protected activity (her charge and requests for coworkers to participate in the investigation, plus fears she was trying to “bring Fuller down”).
• Faulty investigation: Rather than investigate the specific allegations, Hancock ran a generalized “climate survey” that (by her own admission) produced no new misconduct reports about Groeschel and was not followed by discussion of the allegations with Groeschel. Under Cordua Rests., Inc. v. NLRB, the court treated the mismatch between purpose and method as evidence of unlawful motive.

Trader Joe’s “would have done it anyway” defense failed because the company offered only conclusory testimony that suspension pending investigation was “common,” and because the purported termination justifications relied on incidents the Board treated as either protected (401(k) inquiry, as a “logical outgrowth” under Blue Circle Cement Co. v. NLRB) or insufficiently investigated (pallet-jack allegation).

C. The Thryv remedy challenge: Section 10(e) as a hard gatekeeping rule

The most institutionally significant portion of the opinion is not the application of Wright Line on liability, but the court’s insistence that it could not even reach the legality of the Thryv remedy due to Section 10(e) presentment failure.

• Preservation required: The court invoked Section 10(e) and Board regulations to require that objections be “urged before the Board,” treating noncompliance as jurisdictional.
• Generalized exception inadequate: Trader Joe’s had not, in the court’s view, properly excepted to the ALJ’s “direct or foreseeable pecuniary harms” remedy; a statement that Thryv was “wrongly decided” was deemed insufficient, analogized to NLRB v. Seven-Up Bottling Co..
• No extraordinary circumstances: Futility did not excuse presentment because the legal arguments were available when exceptions were filed (D.R. Horton, Inc. v. NLRB), and there was no intervening “overruling of a previously controlling” doctrine under NLRB v. Robin Am. Corp..
• No “residual jurisdiction”: The court declined to treat the Thryv remedy as “obviously beyond the Board’s authority” under NLRB v. Saint-Gobain Abrasives, Inc., reasoning that a circuit split (citing Macy's Inc. v. NLRB and NLRB v. Starbucks Corp.) means the question is not “obvious,” even though Hiran Mgmt., Inc. v. NLRB had already found Thryv unauthorized in the Fifth Circuit.
• Intra-circuit tension acknowledged: The majority confronted a conflict with Lion Elastomers, L.L.C. v. NLRB regarding Section 10(e)’s characterization, and resolved it by treating Woelke & Romero Framing, Inc. v. NLRB as controlling.

Practically, the panel’s approach creates a two-step hurdle for employers: (1) preservation must be both timely and sufficiently specific, and (2) once forfeited, even a strong merits argument (including one supported by later circuit decisions) may be unreachable on review.

3.3 Impact

• Sharper preservation demands in NLRB litigation: The decision signals that employers must articulate remedial objections in exceptions with enough specificity to satisfy Section 10(e), rather than lodging general disagreement with a Board precedent (e.g., “Thryv is wrongly decided”).
• Hardening of Section 10(e) as jurisdictional (in this panel’s view): By treating presentment as jurisdictional and invoking Supreme Court authority to sidestep conflicting Fifth Circuit characterizations, the opinion sets up potential en banc or Supreme Court friction, especially because the dissent frames the issue as non-jurisdictional exhaustion.
• Limits on appellate policing of NLRB remedies: Even where the Fifth Circuit has substantive skepticism toward Thryv-type relief (as noted in Hiran Mgmt., Inc. v. NLRB), this decision underscores that appellate courts may never reach that merits question if parties fail to preserve it.
• Substantive labor-law signal: The opinion affirms that pandemic-era health-and-safety advocacy can constitute protected concerted activity, and that employers’ changes in documentation practices, escalated involvement of upper management, and non-tailored investigations can be treated as animus evidence.

4. Complex Concepts Simplified

• “Protected concerted activity” (Section 7): Employees may act together—or act in ways sufficiently connected to group concerns—for their “mutual aid or protection.” Here, raising workplace COVID safety concerns on behalf of coworkers qualified.
• Section 8(a)(1) vs. Section 8(a)(4): Section 8(a)(1) prohibits interference with Section 7 rights (e.g., disciplining protected advocacy). Section 8(a)(4) separately prohibits retaliation because an employee filed Board charges; a violation of 8(a)(4) also produces a derivative 8(a)(1) violation.
• Wright Line (mixed-motive test): The Board must show protected activity was a motivating factor in discipline; then the employer must show it would have taken the same action anyway. The Fifth Circuit treated this as the governing structure.
• “Animus”: Not necessarily overt hostility; it can be inferred from circumstantial evidence (timing, unusual scrutiny, departures from normal discipline practices, and a flawed investigation).
• “Substantial evidence” review: The appellate court does not decide what it thinks happened; it asks whether a reasonable factfinder could reach the Board’s conclusion on the whole record.
• Section 10(e) presentment: A party generally cannot raise an argument in court that it did not first raise before the Board. This panel treated that rule as jurisdictional and enforced it strictly against Trader Joe’s remedy challenge.
• “Thryv remedy” and “direct or foreseeable pecuniary harms”: An expanded make-whole approach that can include out-of-pocket consequential costs stemming from unlawful termination (e.g., job-search expenses), not just backpay. This case did not reach the remedy’s legality because of Section 10(e).

5. Conclusion

The Fifth Circuit enforced the NLRB’s order against Trader Joe’s, holding substantial evidence supported findings that the company disciplined, suspended, and discharged Jill Groeschel at least in part because of her protected COVID safety advocacy and her NLRB filings. The court also rejected Trader Joe’s “same action anyway” defense, finding its comparator evidence insufficient and its justification for suspension/termination inadequately supported.

The decision’s most consequential doctrinal move is procedural: the panel treated Section 10(e) as a jurisdictional bar preventing it from addressing Trader Joe’s attack on the Board’s Thryv-type make-whole remedy because the objection was not properly presented to the Board, and neither “extraordinary circumstances” nor “residual jurisdiction” applied. For practitioners, the case is a warning that remedy challenges—especially to novel Board remedies—must be preserved explicitly and precisely in Board exceptions, or they may be unreviewable on petition for review.