Sixth Circuit Narrows NLRB Remedies: “Affirmative Action” in NLRA § 10(c) Means Equitable Relief Only; Unfair‑Labor‑Practice Finding Against Starbucks Enforced

Sixth Circuit Narrows NLRB Remedies: “Affirmative Action” in NLRA § 10(c) Means Equitable Relief Only; Unfair‑Labor‑Practice Finding Against Starbucks Enforced

Introduction

In NLRB v. Starbucks Corp., No. 23‑1767 (6th Cir. Nov. 5, 2025), the U.S. Court of Appeals for the Sixth Circuit delivered a consequential decision at the intersection of labor law remedies and constitutional constraints. The court:

  • Enforced the National Labor Relations Board’s (NLRB) finding that Starbucks unlawfully discharged shift supervisor and lead organizer Hannah Whitbeck in violation of § 8(a)(1), (3), and (4) of the National Labor Relations Act (NLRA),
  • But vacated the Board’s award of “direct or foreseeable pecuniary harms” (the Board’s recent Thryv remedy), holding that NLRA § 10(c)’s authorization to order “affirmative action” limits the Board to equitable relief and does not permit consequential damages-like monetary awards.

Workers United intervened on the NLRB’s side. Judge Readler authored the majority opinion, joined by Judge Batchelder. Judge Stranch concurred in part (as to liability) and dissented in part (as to remedy), arguing that the Thryv make‑whole framework is equitable and within § 10(c).

Summary of the Opinion

  • Liability: Substantial evidence supported the Board’s conclusion that anti‑union animus motivated Whitbeck’s discharge. The court emphasized comparator evidence, timing, and district‑manager conduct reflecting general hostility, and rejected Starbucks’s “same decision” defense.
  • Remedy: The court vacated the Thryv remedy (compensation for “all direct or foreseeable pecuniary harms”) as beyond the Board’s statutory authority. Interpreting “affirmative action” in § 10(c) as a term of art for equitable relief only, the court also applied constitutional‑avoidance principles in light of the Seventh Amendment and SEC v. Jarkesy, concluding the Thryv damages resemble legal, compensatory/consequential damages that would trigger jury‑trial protections if Congress had authorized them— which § 10(c) does not.
  • Disposition: Petition for enforcement granted in part (liability), remedy vacated and remanded for proceedings consistent with equitable constraints.

Factual and Procedural Background

Starbucks hired Whitbeck in 2019 and promoted her to shift supervisor. In early 2022, she co‑founded a unionization campaign (Workers United) at the Ann Arbor “Main and Liberty” store, taking numerous visible organizing steps (emailing executives, media interview, wearing buttons, social posts, in‑store messaging).

On February 27, 2022, after a dispute with a co‑supervisor (B.G.), Whitbeck left at the end of her shift, resulting in a single barista (Meloche) working alone for roughly 30 minutes in violation of Starbucks’s two‑employee rule. She admitted the violation and said she needed to leave due to a family medical emergency. Starbucks took no interim discipline for six weeks; then in April, Whitbeck was fired. B.G. was terminated days later for profanity in a customer-facing area.

The NLRB issued a complaint alleging unlawful discharge based on union activity, participation in a Board proceeding, and a prior charge filing. An ALJ and then the Board found a violation and, applying Thryv, ordered make‑whole relief including “direct or foreseeable pecuniary harms.” Starbucks sought denial or vacatur, challenging both liability (lack of substantial evidence) and the Thryv remedy as beyond § 10(c).

The Court’s Legal Analysis

I. Substantial Evidence Supports the Unfair‑Labor‑Practice Finding

Applying the familiar burden-shifting framework (as reflected in Sixth Circuit precedent such as Birch Run Welding & Fabricating and FiveCAP), the court asked whether the Board proved anti‑union animus and, if so, whether Starbucks proved it would have fired Whitbeck regardless of her protected activity.

  • Protected activity and knowledge: Not disputed; Whitbeck’s organizing leadership was known to management.
  • Evidence of animus:
    • Disparate treatment: The court credited comparator evidence. Another shift supervisor (Hess) had multiple two‑employee‑rule violations (and failed to report them) yet initially received only a final warning; Whitbeck was terminated after a single incident with no prior discipline. Starbucks’s attempt to distinguish Hess (e.g., “job aid” nuances, “high-incident” store, night vs. day) did not persuade the court, especially given Starbucks’s own policies and the lack of escalating penalties keyed to time/location.
    • Timing: Adverse action closely followed visible union activity, management’s awareness of Whitbeck’s presence at a Board representation hearing, and a “sip‑in” at another store within the same district. Although Starbucks said it was simply completing its investigation, the sequence supported an inference of retaliatory motive.
    • General hostility: District manager Schmehl’s presence for three hours at the “sip‑in” and removal of pro‑union notes from a community board—behavior not typical for a district manager—bolstered an inference of anti‑union hostility, when combined with her knowledge of Whitbeck’s role.
  • Affirmative defense rejected: Starbucks failed to prove it would have reached the same decision absent protected activity. The six-week delay, absence of interim discipline, and the company’s inconsistent treatment of similar violations undermined its position.

The court emphasized the deferential “substantial evidence” standard; no single “silver bullet” was needed because the record, as a whole, supported the Board.

II. Thryv Damages Vacated: § 10(c) Limits the Board to Equitable Remedies

The crux of the decision concerns the scope of the Board’s remedial authority. Section 10(c) authorizes the Board to order an employer “to cease and desist” and “to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of the Act.”

The Board’s recent decision in Thryv, Inc., 372 NLRB No. 22 (2022), announced a categorical practice of awarding “all direct or foreseeable pecuniary harms” in every case where make‑whole relief would otherwise issue (e.g., credit card interest and late fees, penalties on early retirement withdrawals, childcare, transportation, lost property from missed payments).

The Sixth Circuit rejected Thryv within the circuit, holding that:

  • “Affirmative action” is a term of art for equitable relief. Historical usage at the time of the NLRA’s enactment, judicial and scholarly sources, and contemporaneous legal practice show that “affirmative action” referred to the effect/function of equitable remedies—compelling or restraining conduct—rather than legal damages.
  • Statutory structure and context reinforce equity-only.
    • The NLRA requires courts of appeals to enforce/modify Board orders—consistent with equity’s flexible decree practice; and contempt (a paradigmatic equitable enforcement tool) is available for noncompliance.
    • When Congress authorizes damages, it usually does so expressly and with limits. Section 10(c) enumerates quintessentially equitable remedies (reinstatement and backpay); nothing in the NLRA broadly authorizes consequential or compensatory damages.
    • Reading “affirmative action” to include legal damages clashes with § 10(c)’s “for cause” proviso (which removes only “reinstatement or back pay” from the remedial menu)—an anomaly if large consequential damages remained available against an employee discharged for cause.
  • Title VII analogy confirms the reading. Congress modeled Title VII’s § 706(g) on § 10(c). In 1972, Congress amended § 706(g) to add “or any other equitable relief,” signaling that “affirmative action” was already understood to be equitable. Compensatory damages under Title VII were added later in 1991 with a jury‑trial right—further underscoring that when Congress wants legal damages, it says so.
  • Parallel state statutes and decisions trend the same way. Numerous state anti‑discrimination frameworks use “affirmative action” to denote equitable relief, and state courts have long resisted reading that phrase to include compensatory/punitive damages absent explicit authorization.
  • Constitutional‑avoidance and the Seventh Amendment. The court applied SEC v. Jarkesy (2024) to note that awarding consequential/compensatory damages is “legal in nature” and typically triggers a jury‑trial right. Construing § 10(c) to avoid Seventh Amendment conflict—especially given the lack of clear congressional authorization—confirms an equity‑only reading. The Board’s Thryv awards, measured by an employee’s loss (compensation/punishment/deterrence) rather than the employer’s unjust enrichment (restitution), are classic legal remedies.
  • Deference foreclosed by Loper Bright. The court reviewed § 10(c) de novo (no Chevron deference) and declined to defer to the Board’s expansive interpretation of its own remedial power.
  • Board precedent does not justify Thryv’s breadth. Earlier monetary awards were limited, derivative, and tightly tethered to backpay or directly withheld benefits (e.g., 401(k) growth, search-for-work expenses)—not the “myriad” consequential harms Thryv embraces categorically.

Precedents Cited and Their Influence

  • Wright Line / Transportation Management: The Board’s burden-shifting approach to discriminatory discharge (animus and same‑decision defense) frames the liability analysis; the panel’s substantial‑evidence review aligns with Sixth Circuit cases (Birch Run; FiveCAP; W.F. Bolin; Galicks).
  • Phelps Dodge (1941); Virginia Electric (1943): Often cited to describe the Board’s broad, but remedial, remedial discretion. The majority distinguishes these generic statements from the specific question whether § 10(c) includes legal damages.
  • UAW v. Russell (1958): Supreme Court’s statement that § 10(c) does not establish a general scheme for full compensatory damages; the Sixth Circuit relies on this to cabin remedial scope.
  • Title VII cases—Albemarle Paper; Pollard; Burke: Used to trace how Congress treats “affirmative action” and when it adds explicit compensatory damages with juries (1991 Act), supporting the equity‑only reading for § 10(c).
  • Loper Bright (2024): Confirms courts do not defer to agency interpretations of statutes; applied to review § 10(c) de novo.
  • SEC v. Jarkesy (2024); Granfinanciera; Tull: Seventh Amendment jurisprudence distinguishing legal vs. equitable monetary remedies. The panel uses Jarkesy to stress that money damages aimed at compensation, punishment, or deterrence are legal in nature.
  • Third and Fifth Circuit decisions: The panel aligns with NLRB v. Starbucks, 125 F.4th 78 (3d Cir. 2024), and Hiran Management, 2025 WL 3041862 (5th Cir. 2025), rejecting Thryv consequential damages. It notes supportive opinions in the Ninth and Tenth Circuits (dissenting and concurring/dissenting views) that similarly read § 10(c) as equity‑limited.

The Dissent (Judge Stranch): A Different View of Make‑Whole Relief

Judge Stranch agreed substantial evidence supports liability but would affirm the Thryv remedy as within the Board’s equitable discretion to make employees whole. Key points:

  • Text and purpose: § 10(c)’s “including” is illustrative, not limiting; broad deference to Board remedial choices to effectuate the Act’s policies (Phelps Dodge, Virginia Electric).
  • Historical practice: The Board has long awarded make‑whole components beyond core backpay when tailoring equitable relief (e.g., search‑for‑work expenses, investment growth, medical expenses caused by unlawful reassignment, out‑of‑pocket insurance costs), and Thryv is a principled, codified extension with procedural guardrails (proof of causation, foreseeability, and opportunity to contest).
  • Jarkesy distinguished: Thryv relief is restorative, not punitive; it is tied to the unfair labor practice and designed to restore the status quo, thus remaining equitable and not within Seventh Amendment territory.

Practical Impact and Forward‑Looking Implications

Within the Sixth Circuit

  • The NLRB may not obtain Thryv‑style consequential damages in NLRA enforcement within the Sixth Circuit (KY, MI, OH, TN).
  • Make‑whole relief remains available, but confined to equitable tools such as reinstatement, backpay (with interest), and tightly tethered, derivative monetary components that are equitable in character.
  • Compliance proceedings will be narrower: the Board cannot categorically seek childcare, credit card interest/fees, mortgage penalties, and similar “foreseeable” ripple effects unless they can be framed as equitable, status‑quo restoration derivative of backpay/benefits and authorized by § 10(c).

National Landscape and Potential Supreme Court Review

  • This decision deepens a growing alignment (Third, Fifth, now Sixth) rejecting Thryv’s consequential‑damages approach. The Board has stated it will continue applying Thryv except where circuit precedent “unquestionably” forecloses it, keeping the issue live in other jurisdictions.
  • Jarkesy is exerting gravitational pull beyond securities law: agencies that seek monetary remedies must hew to historically equitable relief or face Seventh Amendment concerns absent clear congressional authorization.
  • Congress could amend § 10(c) to authorize compensatory damages and specify procedures (e.g., jury trial) as it did in Title VII. Absent action, courts are likely to continue reading § 10(c) as equity‑only.

Guidance for Practitioners

  • For employers: Robustly document neutral application of safety and security policies; ensure comparators are treated consistently; avoid delays that undercut claimed urgency; do not skip inquiry into mitigating circumstances. Expect equitable remedies if liability is found, but challenge Thryv‑type requests in Sixth Circuit courts.
  • For unions/employees: Build animus cases with comparators, timing, deviations from policy, and manager conduct evidencing hostility. On remedies, focus on classic make‑whole claims (reinstatement, backpay, benefit restoration) and derivative amounts demonstrably tied to withheld wages/benefits.
  • For the Board: In the Sixth Circuit, tailor remedies to clearly equitable categories and provide tight causal proof for any monetary add‑ons; avoid broad “foreseeable pecuniary harms” framing likely to trigger vacatur.

Complex Concepts Simplified

  • Substantial evidence: A deferential standard—if a reasonable factfinder could reach the Board’s conclusions on the whole record, the court affirms even if other views are possible.
  • Wright Line burden‑shifting: The General Counsel must prove protected activity and animus; the employer can still prevail by showing it would have taken the same action regardless of protected activity.
  • Equitable vs. legal remedies:
    • Equitable remedies restore the status quo or compel/forbid conduct (e.g., reinstatement, backpay as part of equitable relief, injunctions, restitution based on unjust enrichment).
    • Legal remedies are money damages measured by the plaintiff’s loss (e.g., compensatory and consequential damages) and generally trigger the Seventh Amendment right to a jury trial.
  • Thryv remedy: The Board’s 2022 policy to award “all direct or foreseeable pecuniary harms” (e.g., late fees, penalties, childcare, transportation) for NLRA violations. The Sixth Circuit holds this exceeds § 10(c) because it crosses into legal damages territory.
  • Seventh Amendment/Jarkesy: Monetary sanctions designed to compensate/punish/deter are generally legal, not equitable; absent a historical public‑rights exception or clear congressional authorization with jury process, agencies cannot impose them in-house.

Key Takeaways

  • The Sixth Circuit enforces the NLRB’s unfair‑labor‑practice finding against Starbucks: substantial evidence showed anti‑union animus influenced Whitbeck’s discharge.
  • But the court vacates the Thryv remedy, holding § 10(c)’s “affirmative action” authorizes only equitable relief; consequential‑damages‑like awards for “direct or foreseeable pecuniary harms” exceed the Board’s power and raise Seventh Amendment concerns.
  • The ruling places the Sixth Circuit alongside the Third and Fifth Circuits in rejecting Thryv, potentially setting the stage for Supreme Court review unless Congress clarifies § 10(c).
  • Practically, within the Sixth Circuit, expect remedies to center on reinstatement, backpay, and tightly tethered make‑whole components traditionally understood as equitable.

Conclusion

NLRB v. Starbucks Corp. reaffirms the Board’s core role in policing anti‑union retaliation, but it decisively narrows the scope of monetary relief available under § 10(c). By anchoring “affirmative action” in its historical, equitable meaning and invoking constitutional‑avoidance principles in light of Jarkesy, the Sixth Circuit joins a growing consensus that the Board cannot use Thryv to dispense consequential damages absent explicit congressional authorization and appropriate procedural safeguards. The opinion pairs a robust enforcement of the NLRA’s protections—through substantial‑evidence review—with a disciplined view of remedial boundaries. Going forward, this decision will shape how litigants frame proof, how the Board structures orders, and how Congress might respond if broader make‑whole remedies are to be made available under the Act.

Case Details

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

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