Case: 23-60132 Document: 94-1 Page: 1 Date Filed: 05/24/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-60132 May 24, 2024
____________
Lyle W. Cayce
Thryv, Incorporated, Clerk
Petitioner/Cross-Respondent,
versus
National Labor Relations Board,
Respondent/Cross-Petitioner.
______________________________
Petition for Review of an Order
of the National Labor Relations Board
Agency Nos. 20-CA-250250,
20-CA-251105
______________________________
Before King, Jones, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
Thryv, Inc. had a long-running dispute with the union representing
some of its sales employees. The union complained to the National Labor
Relations Board, alleging Thryv engaged in several unfair labor practices.
The Board agreed with the union and ordered Thryv to take draconian steps
to remedy the alleged violations. Thryv petitioned us for review. We grant
Thryv’s petition and vacate the Board’s order in part.
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I.
This action is the culmination of a multiyear standoff between Thryv
and Local 1269 (“the Union”). We (A) explain the legal context for that
standoff. Then we (B) describe the facts that gave rise to the present
controversy. Lastly we (C) summarize the agency proceedings.
A.
Section 8(a)(5) of the National Labor Relations Act imposes a duty
upon employers and recognized unions to bargain in good faith with respect
to mandatory subjects of bargaining—that is, “wages, hours, and other terms
and conditions of employment . . . .” 29 U.S.C. § 158(d); see
id. § 158(a)(5)
(“[I]t shall be an unfair labor practice . . . for an employer to refuse to bargain
collectively with the representatives of his employees . . . .”). Ordinarily, an
employer violates that duty if it imposes a unilateral change on a mandatory
subject of bargaining. Comau, Inc. v. NLRB,
671 F.3d 1232, 1237 (D.C. Cir.
2012).
But the NLRA compels only bargaining; it does not obligate
employers and unions to reach any form of agreement. See 29 U.S.C. § 158(d)
(noting the obligation to bargain “does not compel either party to agree to a
proposal or require the making of a concession”). Thus, employers must
bargain in good faith, but they are never required to agree to any particular
terms.
So what happens when an employer insists on a term that is a
nonstarter for the union? “[T]he [NLRA] does not encourage a party to
engage in fruitless marathon discussions . . . .” NLRB v. Am. Nat’l Ins., 343
U.S. 395, 404 (1952). So if the employer demands a term that the union
refuses to accept, labor law must provide a tool to pretermit an endless cycle
of go-nowhere negotiations.
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That tool is the impasse doctrine. Under that doctrine, employers can
declare an impasse with a union “if there is no realistic possibility that
continuation of discussions would [be] fruitful.” TruServ Corp. v. NLRB, 254
F.3d 1105, 1114 (D.C. Cir. 2001) (quotation omitted). Once the employer
declares an impasse, it does not violate the NLRA by making unilateral
changes so long as the “changes [it makes] are reasonably comprehended
within [the employer’s] pre-impasse proposals.” Comau,
671 F.3d at 1237
(quotation omitted). “The rationale for this rule is that . . . [i]t moves the
[bargaining] process forward by giving one party, the employer, economic
leverage.”
Ibid. (quotation omitted).
When employers and unions reach impasse with respect to a collective
bargaining agreement—an overall impasse—employers generally make
unilateral changes by imposing their last best, final offer (“LBFO”). Once
implemented, the LBFO governs relations between the employer and the
union until the overall impasse breaks. See Raven Servs. Corp. v. NLRB, 315
F.3d 499, 506 (5th Cir. 2002). But the point of the impasse doctrine is only
to jumpstart bargaining by forcing the union into concessions. See Comau,
671
F.3d at 1237. So unions may break an overall impasse at any point—and thus
suspend an employer’s entitlement to rely on an LBFO—by demonstrating
that a resumption in bargaining might be fruitful. See Gulf States Mfg. Inc. v.
NLRB,
704 F.2d 1390, 1399 (5th Cir. 1983).
B.
Thryv sells Yellow Pages advertising. For decades, the structure of the
telephone industry ensured Yellow Pages companies like Thryv were
essentially monopolists in their respective jurisdictions. The companies
earned supra-competitive profits and employed an army of sales
representatives to drive business. But the internet changed that. While
Yellow Pages companies still exist in this digital age, they do a fraction of the
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business they once did, and they need fewer representatives to drive new
business.
In 2019, Thryv had a small group of sales representatives that was
responsible for selling business to customers who did not already have
accounts with the Company. These New Business Advisors (“NBAs”)
“were not bringing in sufficient revenues to cover [even] their base salaries,”
ROA.3106, likely because there were not a lot of new Yellow Pages customers
to go around. So in July of 2019 Thryv started to discuss laying them off.
But Thryv could not simply lay off the NBAs because they were part
of a union. Ordinarily, when a company wants to lay off unionized employees,
it follows the procedures prescribed in the parties’ collective bargaining
agreement (“CBA”). Thryv and the Union, however, were not operating
under a CBA because their CBA had expired, and they had not yet reached
agreement on a successor. The absence of a new agreement was not for want
of trying; the parties negotiated for over a year before Thryv declared
impasse and implemented its LBFO in September of 2018. The Union filed
an unfair labor practice charge related to Thryv’s impasse declaration, but
the NLRB’s General Counsel dismissed it.
So, as of summer 2019, it appears undisputed that Thryv had properly
implemented its LBFO and was operating under it. Article 30 of the LBFO
prescribed the procedures Thryv would follow in the event of an economic
layoff:
Whenever conditions are considered by the Company such as
to warrant layoffs, part-timing, reclassifications or a
combination thereof, the Company agrees to give the Union
designee IBEW 1269 or his/her authorized representative
thirty (30) calendar days’ notice of its intended plan, together
with a description of work locations, job titles (levels within
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channels) and work groups so affected as determined by the
Company.
After such notice and discussion with the Union designee IBEW
1269 or his/her authorized representative, the plans developed
by the Company shall be implemented subject to the following
procedural steps:
1. Temporary employees in the affected work locations,
job titles and work groups shall be separated from the
payroll.
2. The Company shall, in order of seniority, offer to the
employees in such job titles considered to be surplus, if
qualified, transfers to other positions in the Company if
there are any openings that the Company determines
are to be filled.
3. Offer voluntary separation payments to employees in
the affected job titles and work locations by seniority.
The number of employees who make such election shall
not exceed the number of employees determined by the
Company to be surplus. The Company will set the
separation date(s) that are applicable to employees
electing voluntary separation. An employee’s election
to leave the service of the Company and receive
voluntary separation payments must be in writing and
delivered to the Company within ten (10) working days
from the date of the Company’s offer (or such longer
time as the Company may permit). Disputes related to
voluntary separation are not subject to the arbitration
provision of this Agreement.
4. Lay off regular full-time and part-time employees in
surplus in the inverse order of seniority. Such
employees shall receive involuntary separation pay.
ROA.3305–06 (emphasis added).
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In accordance with Article 30, Thryv notified the Union on August
21, 2019, of its intention to lay off the NBAs in 30 days. Thryv directed the
Union to reach out if it “desire[d] to exercise its right to meet and discuss the
Company’s plan within the 30-day period.” ROA.3756. The Union asked to
confer about the layoffs but claimed it was not available until September 11—
twenty-one days after Thryv’s notification. So before Thryv and the Union
met, Thryv held an explanatory meeting with the NBAs to announce its plans
and explain the NBAs’ rights under the LBFO—most notably severance pay.
The Union attended Thryv’s meeting with the NBAs, notwithstanding that
it told Thryv it was not available for discussions that day.
Eventually, Thryv and the Union held a series of meetings related to
the layoffs. In those meetings, Thryv made clear it was planning to proceed
with the layoffs under the procedures prescribed in the LBFO, but Thryv
nevertheless told the Union it was open to counterproposals. It is disputed
whether the Union offered one. But it is not disputed that the Union refused
to recognize Thryv’s layoff proposal. Nor is it disputed that the Union told
Thryv the LBFO was illegitimate, that Thryv was violating the LBFO, and
that Thryv was withholding information the Union needed to bargain
effectively. For obvious reasons, then, the parties made little progress in their
negotiations. Thryv thus moved forward with the layoffs as planned on
September 20, 2019, when the LBFO’s notice period expired. The parties
continued discussions after the layoffs to no avail.
Separately, sometime before September 20, the Union expressed to
Thryv a desire to recommence bargaining for a successor CBA. The parties
came to an agreement on November 14, 2019.
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C.
1.
Following the layoffs, the Union filed a charge with the NLRB. The
Union alleged Thryv violated § 8(a)(5) and (1) of the NLRA by failing to
bargain in good faith before making a unilateral change to the terms of the
NBAs’ employment—namely laying them off—and by failing to respond to
a series of the Union’s information requests.
In response to the Union’s charge, the NLRB’s General Counsel
issued a complaint against Thryv. In essence, the General Counsel alleged
Thryv had an obligation to bargain with the Union in good faith before laying
off the NBAs. And the General Counsel alleged Thryv breached that
obligation by (1) presenting the layoffs as a fait accompli and (2) withholding
information from the Union that the Union needed to bargain effectively.
Like the Union, the General Counsel also separately charged in the complaint
that Thryv violated § 8(a)(5) and (1) by failing to respond to the Union’s
information requests.
Thryv denied all relevant charges. Notably, Thryv contended in its
answer that it had no obligation to bargain about the layoffs because it
implemented them in accordance with Article 30. See ROA.995
(“Respondent did not make a discretionary unilateral change to the terms
and conditions of employment under the status quo effective as of November
1, 2018 when Respondent followed the mandatory and bilateral process set
forth in Article 30.2 of the LBFO by providing the Union with advanced
written notice of the planned force adjustment on August 21, 2019, affording
the Union an opportunity to meet and discuss this noticed plan before the
noticed resolution date of September 20, 2019, and then implementing this
noticed plan by terminating employees with the option to receive
‘involuntary separation pay’ as defined in Article 30.4 of the LBFO.”).
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2.
After a six-day trial before an administrative tribunal, an
Administrative Law Judge ruled for the General Counsel in part and for
Thryv in part. The ALJ mostly agreed with the General Counsel that Thryv
failed to respond to the Union’s information requests. He found Thryv
committed six unfair labor practices by withholding information the Union
requested between April and October of 2019.
But the ALJ disagreed with the General Counsel that Thryv’s layoffs
violated the NLRA. Like the General Counsel, he reasoned Thryv had an
obligation to bargain with respect to the layoffs, but he found Thryv complied
with that obligation because it bargained in good faith. Specifically, the ALJ
found (1) that Thryv did not present the layoffs as a fait accompli, and (2) that
the information Thryv failed to provide to the Union did not prevent the
Union from bargaining effectively.
Accordingly, the ALJ ordered Thryv to cease and desist from
withholding information from the Union and to provide the Union with the
information it requested. But the ALJ did not order Thryv to reinstate the
NBAs or provide any other relief for damages arising from their termination.
3.
The Board affirmed the ALJ’s finding that Thryv violated § 8(a)(5)
and (1) by failing to comply with the Union’s information requests. But it
disagreed with the ALJ about the layoffs and held them unlawful.
The Board so held for two reasons. First, the Board concluded, like
the ALJ, that Article 30 did not absolve Thryv of its bargaining obligations.
And contra the ALJ, the Board found Thryv failed to bargain because (1)
Thryv presented the layoffs to the Union as a fait accompli, and (2) Thryv’s
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failure to supply the Union with information precluded the Union from
bargaining effectively.
Second, the Board found—sua sponte—that the parties’ impasse was
broken when Thryv laid off the NBAs on September 20 because by that time
the parties had resumed negotiations on a successor CBA. And according to
the Board, an employer is precluded from making unilateral changes of any
kind while it is engaged in CBA negotiations with a union. See ROA.3084
(“[Thryv] violated Section 8(a)(5) and (1) by implementing unilateral layoffs
while the parties were negotiating over the successor agreement, as there is
no evidence that overall impasse had been reached on the agreement as a
whole.”) (citing Bottom Line Enters., 302 N.L.R.B. 373, 374 (1991), enfd. sub
nom. Master Window Cleaning, Inc. v. NLRB,
15 F.3d 1087 (9th Cir. 1994)
(table case)). That means in the Board’s view no amount of bargaining could
have cleansed the layoffs. At the time Thryv initiated them it simply was not
permitted to make any changes to the terms or conditions of the NBAs’
employment without Union consent.
So in addition to the remedies ordered by the ALJ, the Board ordered
Thryv to reinstate the NBAs. Moreover, it ordered Thryv to make the NBAs
whole for all the losses incurred as a direct or foreseeable result of the
layoffs—a novel, consequential-damages-like labor law remedy.
II.
Thryv timely petitioned for review of the Board’s order, and the
Board cross-petitioned for enforcement. We have jurisdiction under 29
U.S.C. § 160(f). We review the Board’s conclusions of law for rationality and
consistency with the NLRA. D.R. Horton, Inc. v. NLRB,
737 F.3d 344, 349
(5th Cir. 2013). And we review the Board’s findings of fact for substantial
evidence. Dish Network Corp. v. NLRB,
953 F.3d 370, 376 (5th Cir. 2020).
That means we uphold the Board’s factual findings only if they are supported
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by evidence that is substantial when viewed in light of the record as a whole,
including “whatever in the record fairly detracts from its weight.” Ibid.
(quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)).
Applying those standards, we (A) explain Thryv’s layoffs did not
violate the NLRA. Then we (B) dispense with the Board’s order respecting
the information requests.
A.
The Board held Thryv violated the NLRA by unilaterally laying off six
NBAs. We disagree. We (1) explain the LBFO displaced Thryv’s NLRA-conferred obligation to bargain about the layoffs. Then we (2) reject the
Board’s arguments that we must nonetheless enforce its order.
1.
Layoffs are a mandatory subject of bargaining. That means, as a
general rule, an employer violates § 8(a)(5) and (1) of the NLRA when it lays
off employees unilaterally. See Lapeer Foundry & Mach., 289 N.L.R.B. 952,
954 (1988). 1 On the basis of this general rule, the Board held Thryv “was
obligated [by the NLRA] to bargain [with the Union] over the decision to lay
off the New Business Advisors.” ROA.3083. And it held that was true
whether or not the LBFO was in effect when the layoffs occurred.
The Board was wrong. In fact, assuming the LBFO was in effect, it
absolved Thryv of its NLRA-conferred obligation to bargain about layoff
_____________________
1
Really, the employer violates § 8(a)(5). But “[a]n employer who violates section
8(a)(5) also derivatively violates section 8(a)(1), which makes it unlawful for an employer
‘to interfere with, restrain, or coerce employees in the exercise of’ their statutory labor
rights.” Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 347 n.1 (D.C. Cir. 2011) (quotation
omitted). Section 8(a)(1) thus “presents no separate issues.” Allied Chem. & Alkali Workers
of Am., Loc. Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div.,
404 U.S. 157, 163 n.6
(1971).
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decisions. That is because once Thryv lawfully implemented its LBFO, the
LBFO set the terms of the relationship between Thryv and the NBAs. See,
e.g., Comau, 671 F.3d at 1237 n.11. The LBFO included Article 30, through
which Thryv reserved discretion to initiate layoffs subject only to limited
qualifications—including the requirement of thirty days’ notice, an
opportunity for discussion with the Union, and severance pay. Thus, Thryv
was privileged to lay the NBAs off without bargaining so long as it complied
with the terms of Article 30.
In holding otherwise, the Board apparently reasoned that even a lawful
impasse declaration does not license an employer to impose a “management
rights” clause upon a union—that is, an LBFO provision by which the
employer reserves discretion to take future unilateral action on a mandatory
subject of bargaining. See ROA.4287 (“[T]he implemented final offer [did]
not excuse [Thryv] from its bargaining obligation with respect to the layoff
decision.” (citation and quotation omitted)).
Again, the Board was wrong. The fact that Article 30 left Thryv with
discretion does not mean Article 30 fell outside the ordinary impasse rules.
This court has long held that employers are permitted to implement
management rights clauses (like Article 30) at impasse, and that such clauses
in fact privilege employers to take unilateral action on subjects (like layoffs)
that would otherwise require bargaining. See Raven Servs., 315 F.3d at 504
(“We have . . . held that [management rights] clauses may be implemented
at impasse.”) (citing NLRB v. Intracoastal Terminal, Inc.,
286 F.2d 954, 958
(5th Cir. 1961)). Were it otherwise, the impasse doctrine would not actually
break an impasse about a management rights clause: The union could prohibit
adoption of such a clause by filibustering at the bargaining table forever.
Other courts have reached the same conclusion. For example, in
Colorado-Ute Electric Ass’n, Inc. v. NLRB, 939 F.2d 1392 (10th Cir. 1991), a
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Tenth Circuit panel considered an LBFO provision that vested the employer
with discretion to impose future merit-based wage increases. Id. at 1398.
When the employer granted merit increases pursuant to that provision, the
union filed an unfair labor practice charge. Id. at 1399. The Board held that
because the employer “failed to secure a waiver of the Union’s statutory
right to bargain over the merit increases’ timing and amounts, the
Respondent was not free to grant increases without consulting with the
Union about these matters.” Id. at 1400 (quotation omitted). And that was
true notwithstanding the LBFO provision because in the Board’s view, the
union had a right to bargain about “particular economic terms” rather than
“a general proposal that the employer be permitted to exercise discretion
with respect to merit wage programs.” Id. at 1401 (emphasis omitted)
(quotation omitted).
The panel rejected that argument. It agreed with the Board that merit
wages are a mandatory subject of bargaining, id. at 1400, and that “an
employer cannot use its economic power to remove [the] subject completely
from the bargaining table,” id. at 1404. But it concluded, contra the Board,
that the employer satisfied its bargaining obligations by bargaining over the
merit wage increase provision in the runup to the implemented LBFO. Ibid.
That was true even though the employer insisted on a provision that vested
it with discretion to implement merit wages rather than a provision
establishing the particular terms of merit wages. Id. at 1402. The reason, the
court explained, is that “an employer vindicates the union’s right to bargain”
when it “vigorously bargain[s] over how a discretionary . . . clause [will] be
implemented.” See id. at 1403 (emphasis in original) (quotation omitted).
And since an employer vindicates the union’s rights when the parties bargain
over the discretionary clause in the first instance, the employer has no
obligation—beyond those specified in the LBFO—to re-vindicate the
union’s rights upon deciding to take action pursuant to the discretionary
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clause. In short, Colorado-Ute held that management rights clauses are
subject to ordinary impasse rules.
That rule follows logically from Supreme Court precedent. As
Colorado-Ute explained, the Supreme Court has held nothing in the NLRA
precludes employers from insisting on “strong management-rights clause[s],
in which . . . employer[s] ‘reserve[] . . . the right to take unilateral action with
respect to’” mandatory subjects of bargaining. Colorado-Ute, 939 F.2d at
1402 (quoting Am. Nat’l Ins., 343 U.S. at 400 n.5). If employers are allowed
to insist on strong management rights clauses, they must be allowed to try to
obtain those clauses by using the “economic weapon of implementing at
impasse.” Colorado-Ute, 939 F.2d at 1404. A contrary rule would make an
employer’s right to implement a final offer at impasse dependent on the
substantive content of that offer, which is at odds with the well-established
proposition that the NLRA was not meant to dictate the outcome of the
collective bargaining process. See Am. Nat’l Ins.,
343 U.S. at 404 (“[I]t
is . . . clear that the Board may not, either directly or indirectly, compel
concessions or otherwise sit in judgment upon the substantive terms of
collective bargaining agreements.”); NLRB v. Ins. Agents’ Int’l Union,
361
U.S. 477, 490 (1960) (explaining the NLRA does not “contain a charter for
the National Labor Relations Board to act at large in equalizing disparities of
bargaining power between employer and union”); H. K. Porter Co. v. NLRB,
397 U.S. 99, 103–04 (1970) (“[T]he object of [the NLRA] was not to allow
governmental regulation of the terms and conditions of employment, but
rather to ensure that employers and their employees [can] work together to
establish mutually satisfactory conditions. . . . [A]greement might in some
cases be impossible, and it was never intended that the Government would in
such cases step in, become a party to the negotiations and impose its own
views of a desirable settlement.”).
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It is true that the D.C. Circuit broke with Colorado-Ute in McClatchy
Newspapers, Inc. v. NLRB, 131 F.3d 1026 (D.C. Cir. 1997). In that case, a panel
reasoned the Board is entitled to determine that at least some management
rights clauses are beyond the scope of the impasse rule. But McClatchy
expressly limited its holding to provisions relating to the “grounds for and
timing of wage increases.”
Id. at 1035. And the D.C. Circuit has refused to
extend the McClatchy doctrine beyond those narrow grounds. See Mail
Contractors of Am. v. NLRB,
514 F.3d 27, 36 (D.C. Cir. 2008) (declining to
extend McClatchy while explaining that “[t]he Board must proceed
cautiously in applying the . . . doctrine, taking care to tether its applications
to the pragmatic justification for that decision . . . .”).
And in any event, with respect, the McClatchy panel underread one
Supreme Court decision and overread another. First, the McClatchy panel
underread the Supreme Court’s decision in American National Insurance.
The Supreme Court held that nothing in the NLRA precludes employers
from insisting on sweeping management rights clauses—but the D.C. Circuit
resisted that conclusion. Compare Am. Nat’l Ins., 343 U.S. at 409 (holding
the degree of discretion in a CBA “is an issue for determination across the
bargaining table, not by the Board”), with McClatchy,
131 F.3d at 1034
(suggesting some management rights clauses might constitute an evasion of
an employer’s duty to bargain collectively). Moreover, the Supreme Court
instructed the Board not to “indirectly . . . sit in judgment upon the
substantive terms of collective bargaining agreements.” Am. Nat’l Ins.,
343
U.S. at 404. But the McClatchy panel allowed the Board to impose different
bargaining rules based on the substance of an employer’s proposal. See
McClatchy,
131 F.3d at 1034. In doing so, the McClatchy panel tipped the
scales against management rights clauses—just the kind of indirect
regulation of substantive CBA terms that is forbidden under American
National Insurance.
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Second, the McClatchy panel overread the Supreme Court’s decision
in Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404 (1982). The
panel read Bonanno Linen to require sweeping deference to the Board over
“the dynamics of collective bargaining.” McClatchy,
131 F.3d at 1034. But
Bonanno Linen stands for no such proposition. The Court in that case
afforded the Board deference to shape the contours of multiemployer
bargaining, but only because multiemployer bargaining was entirely
“voluntary,”
454 U.S. at 412, meaning an employer was free to “condition[]
its participation in group bargaining on any special terms of its own design,”
id. at 420 (Stevens, J., concurring). 2 That hardly suggests courts should
uncritically defer to the Board’s judgment about matters of collective
bargaining that are not voluntary, like negotiating with a union when required
to do so by the NLRA. Thus, even if we could depart from our precedent,
McClatchy would not persuade us that management rights clauses are subject
to their own set of impasse rules. 3
In sum, Thryv was permitted to implement Article 30 upon reaching
an impasse with the Union. That means Thryv’s only obligation in laying off
the NBAs was to comply with Article 30. And there can be no serious dispute
that Thryv did so. 4 Article 30 required Thryv to do three things: (1) provide
_____________________
2
Justice Stevens supplied the fifth vote for the Court’s opinion, so his concurrence
suggests the contours of the Court’s holding.
3
It is worth noting the Board did not even try to justify its holding that management
rights clauses do not absolve employers of their obligation to bargain over layoffs. The
Board merely affirmed the ALJ’s finding on this point. And the ALJ merely pointed to a
Board precedent about § 7 rights. ROA.3126 (citing Kingsbury, Inc., 355 N.L.R.B. 1195 n.1,
1205 (2010)). Those rights present a substantially different problem than the bargaining
rights secured by § 8. See NLRB v. McClatchy Newspapers, Inc. Publisher of The Sacramento
Bee,
964 F.2d 1153, 1169 (D.C. Cir. 1992) (Opinion of Edwards, J.).
4
The Board suggests Thryv violated the LBFO by failing to consider integrating
the NBAs into other positions within the Company. But the LBFO states only that “[t]he
parties agree to review the need for the New Business Advisor-Premise role at six-month
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the Union thirty days’ notice before initiating layoffs; (2) provide the Union
an opportunity to discuss the layoffs; and (3) offer severance payments to the
affected employees. Thryv did all three: It (1) notified the Union of its plans
on August 21, 2019, 30 days before the layoffs occurred; (2) made itself
eminently available to bargain over the layoffs with the Union during the
thirty-day notice period; and (3) offered voluntary severance payments to all
the affected NBAs. So assuming the LBFO was in effect when Thryv
implemented the NBA layoffs, those layoffs did not violate the NLRA.
2.
The Board and the Union contend even if Article 30 could have freed
Thryv from its NLRA-conferred bargaining obligations, we still must uphold
the Board’s order. They offer three reasons: (a) NLRA § 10(e) bars us from
even considering the dispositive Article 30 issue; (b) Thryv failed to show the
LBFO was lawfully implemented; and (c) Article 30 is irrelevant because the
parties broke their impasse before the layoffs occurred. We reject all three
arguments.
a.
First, the Board says we are barred by NLRA § 10(e) from even
considering whether Thryv was privileged to initiate the layoffs pursuant to
Article 30. See 29 U.S.C. § 160(e) (“No objection that has not been urged
before the Board, its member, agent, or agency, shall be considered by the
court, unless the failure or neglect to urge such objection shall be excused
_____________________
intervals to determine whether there has been sufficient change in the client base and
staffing levels to absorb New Business Advisor(s)-Premise into the Business Advisor-Premise title.” That clause does not obligate Thryv to consider integrating the NBAs into
BA positions before laying them off. Rather, it obligates Thryv to review the matter every
six months. And the General Counsel did not charge Thryv for failing to meet with the
Union to consider absorbing the NBAs into BA positions.
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No. 23-60132
because of extraordinary circumstances.”). Framed charitably, the Board’s
argument goes like this: Thryv did not file exceptions to the ALJ’s finding on
the Article 30 issue. It therefore waived the issue and so lost its one chance
to put the issue before the Board. See 29 C.F.R. § 102.46(f) (“Matters not
included in exceptions or cross-exceptions may not thereafter be urged
before the Board, or in any further proceeding.”). Thryv raised the issue in a
motion for reconsideration, but by that time it was too late. See
id. § 102.48(c)
(allowing motions for reconsideration only “because of extraordinary
circumstances”). Thus, Thryv never properly put the issue before the Board,
which means Thryv cannot properly raise the issue before us.
The trouble with the Board’s argument is that a party need only urge
an issue “before the Board, its member, agent, or agency” to preserve it for
review in a court of appeals. 29 U.S.C. § 160(e) (emphasis added); see
Marshall Field & Co. v. NLRB,
318 U.S. 253, 255 (1943) (per curiam) (“We
do not find that, at any stage of the proceedings before the Board, the objection
now urged as to the Board’s lack of power was presented to it or to any member
or agent of the Board . . . .”) (emphases added); see also Raven Servs.,
315 F.3d
at 508 (declining to consider an argument because the petitioner “never
made [it] to the ALJ or the NLRB”) (emphasis added). An ALJ is a member
or agent of the Board. See, e.g.,
29 U.S.C. § 160(b) (referring to the Board
official responsible for “conducting the hearing” as a “member[ or] agent”);
id. § 160(c) (referring to the Board official responsible for taking testimony
as a “member[ or] agent”). Thryv maintained before the ALJ that Article 30
established the relevant status quo, and that it was privileged to initiate
layoffs according to the procedures prescribed by Article 30, because Thryv
said so in its answer to the General Counsel’s complaint. See ROA.995
(“[Thryv] did not make a discretionary unilateral change to the terms and
conditions of employment under the status quo effective as of November 1,
2018 when Respondent followed the . . . LBFO . . . .”). So no matter whether
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No. 23-60132
the Article 30 issue was urged before the Board, it was urged before a member
or agent of the Board, and we may consider it.
NLRB v. Mooney Aircraft, Inc., 310 F.2d 565 (5th Cir. 1962) (per
curiam), is not to the contrary. The question presented in that case was
whether § 10(e) barred an employer from raising objections that the employer
did not put before the Board in written exceptions. Id. at 566. The employer
argued § 10(e) was no bar because the employer raised the relevant objections
in an apparently informal “telephone conversation” with a Board attorney.
Ibid. On the employer’s telling, the Board’s attorney was an “agent” of the
Board, so the employer’s informal telephonic objections satisfied § 10(e). A
panel of this court rejected the employer’s argument. Ibid. It explained that
if courts could review any objection raised before an agent of the Board (even
informally, in an unrecorded phone call), the Board would have no means to
limit the universe of issues it was required to consider. Ibid.
This case does not present the same problem. That is because Thryv
made the relevant objection in its answer to the General Counsel’s
complaint—i.e., on the record in a formal part of its NLRB proceeding.
Unlike the employer’s informal objection in Mooney Aircraft, Thryv’s
objection should have been sufficient to put the Board on notice. Mooney
Aircraft thus does not control. It might be more convenient for the Board if
reviewing courts could consider only objections raised in written exceptions
to ALJ findings. But there is no basis for the Board’s position in the text of
§ 10(e). If applying that text faithfully means the Board is required to review
the record to familiarize itself with issues that might surface on appeal of its
orders, so be it.
In all events, Thryv did in fact urge the Article 30 issue before the
Board itself. Thryv dedicated several pages of its motion for reconsideration
to explaining the Board ignored that Article 30 established the status quo and
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governed the layoffs. And the Board clearly understood Thryv’s Article 30
argument. ROA.4286 (noting Thryv “contends that this LBFO privileged
the layoffs at issue in this case”); ROA.4287 (rejecting Thryv’s motion for
reconsideration while noting “the Respondent failed to advance in its
exceptions before the Board the argument that Article 30 of the LBFO may
be read to permit the Respondent to implement layoffs without bargaining”).
Our precedent says a party can properly exhaust its arguments by
raising them for the first time in a motion for reconsideration before the
Board. For example, in Gulf States, 704 F.2d 1390, the employer objected to
Board-ordered backpay for the first time in a motion for reconsideration. The
Board argued that our court could not reach the issue because it was not
properly exhausted under § 10(e). We disagreed, explaining the employer’s
failure to raise the backpay issue before its motion for reconsideration was
excused because “the company had no grounds for objection until after the
Board’s decision.” Id. at 1399.
So too here. It is true that in theory, Thryv could have put the issue
before the Board earlier by excepting to the ALJ’s finding that Thryv had an
obligation to bargain. But the ALJ found Thryv’s layoffs did not violate the
NLRA. So the ALJ’s finding that Thryv had an obligation to bargain about
the layoffs at all was a subsidiary finding that had no bearing on the question
of Thryv’s liability. Thryv therefore had “no grounds for objection until after
the Board’s decision.” Ibid.; cf. Cooper Indus., Ltd. v. Nat’l Union Fire Ins.
Co. of Pittsburgh, Pa., 876 F.3d 119, 126 (5th Cir. 2017) (“A cross-appeal is
generally not proper to challenge a subsidiary finding or conclusion when the
ultimate judgment is favorable to the party cross-appealing.”) (quotation
omitted). That means Thryv raised the Article 30 issue before the Board at
its first practical opportunity.
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At a minimum, the combination of Thryv’s answer and its motion for
reconsideration satisfy § 10(e). To hold otherwise would license the Board to
make stumbling blocks out of procedural requirements and so shield its
orders from judicial review. That is not what § 10(e) is for. Rather, that
provision exists to ensure the Board has “notice and an opportunity to
confront objections to its rulings before it defends them in court.” Indep. Elec.
Contractors of Hous., Inc. v. NLRB, 720 F.3d 543, 551 (5th Cir. 2013). The
Board obviously had notice of Thryv’s Article 30 objection, both from
Thryv’s answer to the General Counsel’s complaint and from Thryv’s
motion for reconsideration. So we may consider it.
b.
The Board next argues Thryv never carried its burden of showing the
LBFO was lawfully implemented, which means Thryv cannot rely on the
LBFO to justify its layoff decisions.
That contention is perplexing for two reasons. First, the Board’s
finding that Thryv failed to establish the lawfulness of the LBFO is entirely
unsubstantiated. After Thryv declared an impasse with respect to the
successor CBA negotiations, the Union filed an unfair labor practice alleging
Thryv’s declaration was premature. The NLRB’s own General Counsel
dismissed the Union’s charge, explaining:
[T]he evidence established that the parties met on
approximately 78 days over one year and more importantly,
since the Employer’s August 7, 2018 last, best, and final
proposal, the parties made no advances or reached any
compromises on any major issues before the Employer’s
September 25, 2018 declaration of impasse. Hence, because
the parties were at impasse and there is no evidence that
continued bargaining would have been fruitful, the Employer
was privileged to implement terms of its last, best and final
offer and such implementation did not violate the Act.
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ROA.1035. The Board argued in its proceedings that the General Counsel’s
“dismissal of the charge does not prove there was impasse or lawful
implementation.” ROA.4287. But the Board did not point to any evidence—
let alone substantial evidence—that suggests the General Counsel was wrong
to conclude the LBFO was validly implemented. So the Board’s finding that
Thryv failed to carry its burden of establishing the lawfulness of the LBFO
must be set aside for want of evidentiary support. See 5 U.S.C. § 706(2)(E)
(“The reviewing court shall hold unlawful and set aside agency action,
findings, and conclusions found to be unsupported by substantial
evidence . . . .” (quotation omitted)).
Second, Thryv maintained from the very start of the agency
proceedings that the LBFO represented the lawful status quo, and the
General Counsel apparently never contested the point. The Board’s
assertion in response to Thryv’s motion for reconsideration that Thryv failed
to show the LBFO was lawfully established was a bolt from the blue. Worse,
the bolt appeared just when it was too late for Thryv to do anything about it.
The Board’s finding was thus the epitome of arbitrary—as arbitrary as a
judge ruling against a party for failing to proffer evidence in support of a fact
to which his counterparty stipulated.
Countenancing the Board’s argument would mean the Board could
use the General Counsel “capriciously . . . as the cat’s paw” in “its fictional
separation of powers arrangement.” United Nat’l Foods, Inc. v. NLRB, 66
F.4th 536, 557 (5th Cir. 2023) (Oldham, J., dissenting). For example, the
Board could direct the General Counsel not to contest certain facts, and then
it could turn around and rule against parties on the ground that they failed to
proffer evidence establishing those very facts. That is a door we decline to
open. So even if the Board’s finding was supported by substantial evidence,
we would still set it aside as arbitrary and capricious. See
5 U.S.C.
§ 706(2)(A) (“The reviewing court shall hold unlawful and set aside agency
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action, findings, and conclusions found to be arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” (quotation omitted)).
c.
Finally, the Board and the Union both contend Article 30 is irrelevant.
In their view, even if Article 30 could have privileged Thryv to lay off the
NBAs in an impasse, the parties broke their impasse (and hence obviated
Article 30) before the layoffs occurred. We (i) reject the Board’s argument.
Then we (ii) reject the Union’s argument.
i.
In the Board’s view, Thryv and the Union broke their impasse by
restarting CBA negotiations before the layoffs occurred. And the Board’s
precedent holds that employers may not make any unilateral changes while
they are engaged in CBA negotiations. See Bottom Line Enters., 302 N.L.R.B.
at 374 (“[W]hen . . . parties are engaged in [CBA] negotiations, an
employer’s obligation to refrain from unilateral changes extends beyond the
mere duty to give notice and an opportunity to bargain; it encompasses a duty
to refrain from implementation at all, unless and until an overall impasse has
been reached on bargaining for the agreement as a whole.”). The Board
contends the layoffs were therefore unlawful. Red Br. at 26.
We are not sure the Bottom Line Enterprises rule comports with the
NLRA. But even assuming it does, 5 the Board’s argument fails because
Thryv correctly argues the Board failed to justify its finding that Thryv and
the Union broke their impasse before making the layoffs on September 20.
Blue Br. 36.
_____________________
5
We make this assumption because Thryv never challenged the Bottom Line
Enterprises rule, either in the administrative proceedings or on appeal.
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An impasse breaks when something “creates a new possibility of
fruitful discussion.” Gulf States, 704 F.2d at 1399. To justify finding that the
impasse was broken, then, the Board needed to point to evidence suggesting
something happened to create a possibility of fruitful discussion by
September 20. The Board did not. It merely asserted that the ALJ “found
the parties . . . were in the process of negotiating a new collective-bargaining
agreement when [Thryv] implemented the unilateral layoffs on September
20.” ROA.3084. But neither the Board’s order nor its brief on appeal
explains where the ALJ said that. See ibid.; Red Br. 26. And it appears to us
the ALJ said no such thing. 6 The Board’s order thus contains no evidentiary
support for its finding that the impasse broke before the layoffs occurred. A
proposition supported by no evidence obviously is not supported by
substantial evidence, so the Board’s finding must be set aside. See
5 U.S.C.
§ 706(2)(E) (“The reviewing court shall hold unlawful and set aside agency
action, findings, and conclusions found to be unsupported by substantial
evidence . . . .”).
The Board resists this conclusion on two grounds, but neither is
persuasive. First, the Board attempts to use this appeal as an opportunity to
supply the evidentiary basis that was missing from its order. But its
arguments are unavailing because SEC v. Chenery Corporation (“Chenery
II”), 332 U.S. 194 (1947), prohibits an agency from saving its decision with
post hoc justifications. “[W]e look to what the agency said, not what it might
have said.” Dish Network,
953 F.3d at 380.
_____________________
6
The ALJ only directly referenced negotiations over the successor agreement
once, when he explained “the parties reached agreement on the terms of a new collective-bargaining agreement, but not until November 14, 2019.” ROA.3105. On several occasions
the ALJ obliquely referenced general contract bargaining and comments a Union
representative made about the overall impasse, but the ALJ never suggested the parties
reopened CBA negotiations by September 20. See ROA.3110–14.
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Even if we could consider the evidence the Board cited for the first
time in its brief on appeal, it would not support the Board’s conclusion. 7
True, the Union signaled a desire to resume CBA negotiations at some point
between Thryv’s impasse declaration and the time of the layoffs. But a
demand to bargain does not “create[] a new possibility of fruitful
discussion.” Gulf States, 704 F.2d at 1399 (emphasis added). If it did, a union
could undermine an employer’s impasse declaration merely by asking for a
meeting. Rather, our precedent requires something more substantial than a
bargaining demand to break an impasse—like a strike or a meaningful
concession. See
ibid. The Union did not call a strike, and the Board does not
point to anything suggesting the Union made a meaningful concession before
September 20. 8 Nor does it point to any other analogously substantial change
in the bargaining landscape.
Second, the Board contends the lawfulness of its application of Bottom
Line Enterprises is beside the point. In the Board’s view, Thryv failed to
challenge its application of Bottom Line Enterprises in the administrative
proceedings, so the Board once again invokes § 10(e) to shield itself from
judicial review. See 29 U.S.C. § 160(e) (“No objection that has not been
urged before the Board, its member, agent, or agency, shall be considered by
the court, unless the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.”).
_____________________
7
The Board’s evidence shows only that the Union thought the impasse was broken.
The fact that the Union thought the impasse was broken does not mean the impasse was
actually broken.
8
We assume September 20 is the relevant date for the Bottom Line Enterprises
analysis. But it may be more accurate to say Thryv initiated the layoffs on August 21, when
Thryv took the first step prescribed by Article 30. See Comau, 671 F.3d at 1239–40
(explaining some unilateral changes are implemented when the employer announces them,
even if those changes do not take effect until a later date).
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No. 23-60132
But Thryv objected in its motion for reconsideration that the Board
erred by finding the layoffs unlawful under Bottom Line Enterprises because
the parties “were at an overall impasse” on September 20. ROA.4278
(quotation omitted). 9 The Board acknowledged Thryv’s objection. See
ROA.4286 n.1 (“The Respondent implies in its motion for reconsideration
that the Board erred in finding that, pursuant to Bottom Line Enterprises, the
Respondent violated [§§] 8(a)(5) and (1) of the Act by making unilateral
changes during the course of bargaining a successor agreement when the
parties had not reached ‘overall impasse’ in bargaining for the agreement as
a whole.”). So Thryv’s objection was obviously sufficient to “put the Board
on notice that the [Bottom Line Enterprises] issue might be pursued on
appeal.” Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981). It
also gave the Board “adequate notice of the basis for [Thryv’s] objection”—
namely that the parties were at overall impasse when the layoffs occurred.
Nathan Katz Realty, LLC v. NLRB,
251 F.3d 981, 985 (D.C. Cir. 2001)
(quotation omitted).
Perhaps Thryv could have been more precise, but § 10(e) does not
require employers to put an issue before the Board with pristine clarity. See
Gulf States, 704 F.2d at 1399 (holding that an employer preserved an issue by
ambiguously referencing the issue in a motion for reconsideration). Context
made clear enough that Thryv’s objection implicated the question of whether
the parties broke their impasse before the layoffs. The Board proved as much
because in response to Thryv’s objection it explained its view that the parties
had resumed CBA negotiations by September 20. ROA.4287 n.1.
_____________________
9
Section 10(e) does not bar us from considering Thryv’s objection. That is because
the Board made its no-impasse finding sua sponte, so Thryv’s first opportunity to object to
that finding was at the motion for reconsideration stage. See supra, at 18–19 (citing Gulf
States, 704 F.2d at 1399).
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Section 10(e) requires no more, which means Thryv adequately preserved its
objection. See Consol. Freightways, 669 F.2d at 794 (“[W]hen the issues
implicated by an imprecisely drafted objection are made evident by the
context in which it is raised, [§] 10(e) does not shield the Board’s resolution
of those issues from review.”); see also ibid. (collecting cases).
ii.
In the Union’s view, the parties broke their impasse before the layoffs
occurred for a different reason. The Union argues an employer breaks an
impasse any time it fails to comply with a union’s lawful information request.
Thryv failed to comply with several of the Union’s lawful information
requests. See infra Part II.B. To the Union, that means Thryv broke the
impasse before September 20. And since the breaking of an impasse suspends
operation of an LBFO, the Union contends Thryv cannot rely on the LBFO
to justify the layoffs. To support its argument, the Union looks to our
decision in Raven Services, 315 F.3d 499.
The Union’s argument fails for the simple reason that the Board never
made it. That means it too runs headlong into the “simple but fundamental
rule . . . that a reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency.” Dish
Network, 953 F.3d at 379–80 (quoting Chenery II, 332 U.S. at 196).
Moreover, Raven Services held only that an employer breaks an
impasse on CBA negotiations by failing to provide a union with information
that is “relevant and necessary for bargaining.” 315 F.3d at 505 (emphasis
added) (quotation omitted). The Board found Thryv failed to provide the
Union with some information, but it is not clear any of that information was
“necessary for bargaining.” See, e.g., ROA.3128 (ALJ holding Thryv’s
information-related failures did not preclude the Union from bargaining
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effectively). And in any event, unlike the union in Raven Services, the Union
in this case was not seeking information for the purpose of bargaining on a
successor CBA. So it is far from obvious that the Union’s position actually
follows from Raven Services.
…
In sum, Thryv’s layoffs were lawful so long as Thryv and the Union
remained at overall impasse on September 20. The Board failed to justify its
finding that CBA negotiations had resumed by that date. The Board’s and
the Union’s other arguments are similarly unavailing, so we vacate the
Board’s no-impasse finding.
B.
Finally, the information requests. An employer’s duty to bargain
collectively under § 8(a)(5) of the NLRA includes the duty to supply a union
with information that will allow it to “negotiate effectively and . . . perform
properly its . . . duties as bargaining representative.” N.Y. & Presbyterian
Hosp. v. NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011) (quotation omitted).
Employers accordingly have a “general obligation . . . to provide information
that is needed by the [union] for the proper performance of its duties.”
NLRB v. Acme Indus. Co.,
385 U.S. 432, 435–36 (1967). So “in the absence of
a countervailing interest,” any information requested by a union “that has a
bearing on the bargaining process must be disclosed.” U.S. Testing Co. v.
NLRB,
160 F.3d 14, 19 (D.C. Cir. 1998).
The Board found Thryv failed to respond to six information requests
lodged by the Union:
• The Union’s April 12 request for information related to Thryv’s
Quarterly Relief program for sales representatives.
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• The Union’s September 11 request for an audit trail—i.e., “detailed
account level information” used in the industry “to determine the
origins of where an account begins, who it’s assigned to, and where it
ultimately ends up.”
• The Union’s September 11 request for particularized information
about the locations of the NBAs involved in the layoffs.
• The Union’s eight-part October 17 request for voluminous accountrelated reports.
• The Union’s October 30 request for information related to certain
accounts that had gone through a unification process when Thryv
formed out of the merger of two pre-existing Yellow Pages companies.
• The Union’s October 31 request for information related to two NBAs
Thryv transferred to new positions in the months before it initiated
the layoffs.
Thryv does not contest the Board’s findings with respect to the April
12 Quarterly Relief request, the October 30 Account Unification request, or
the October 31 NBA Transfer request. So the Board is presumptively entitled
to summary enforcement as to those findings. See El Paso Elec. Co. v. NLRB,
681 F.3d 651, 658 (5th Cir. 2012).
Thryv does contest the Board’s findings with respect to the other
three information requests, but its objections are baseless.
• The September 11 Audit Trail request: Thryv contends it was not
obligated to respond to the Union’s request for an audit trail because
doing so would have been unduly burdensome. But the ALJ found—
based on trial testimony—that Thryv failed to object to the request at
the time the Union lodged it. Thryv does not dispute that finding. And
“if [a] company does wish to assert that a request for information is
too burdensome, this must be done at the time the information is
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No. 23-60132
requested and not for the first time during the unfair labor practice
proceeding.” Oil, Chem. & Atom. Workers Loc. Union, AFL-CIO 6-418
v. NLRB, 711 F.2d 348, 353 n.6 (D.C. Cir. 1983) (quotation omitted).
• The September 11 NBA Location request: Thryv contends it was not
obligated to respond to the Union’s request for NBA location
information because the Union already had all the information it was
asking for. But the ALJ found that it was not unreasonable for the
Union to request the information to “confirm the accuracy” of its
records. ROA.3121. Given the liberal relevance standards governing
information requests, the ALJ’s finding was not unreasonable.
• The October 17 Account Report request: Thryv contends it was not
obligated to respond to the Union’s eight-part request for accountrelated information because doing so would have been unduly
burdensome, and the Union would not work with Thryv to share the
cost of providing the data. But the ALJ found—based on trial
testimony—Thryv failed to carry its burden of providing the Union
with evidence that it would have been unduly costly to produce the
information. Thryv does not dispute that finding, and it is dispositive.
Tower Books, 273 N.L.R.B. 671, 671–72 (1984).
Thus, the Board’s findings with respect to the information requests were
reasonable and supported by substantial evidence. We accordingly enforce
the Board’s order requiring Thryv to cease and desist from “failing and
refusing to furnish [the Union] with requested information that is relevant
and necessary to the Union’s performance of its functions as the collective-bargaining representative of its employees.” ROA.3093.
But we refuse enforcement of the Board’s order requiring Thryv to
“[f]urnish to the Union in a timely manner the information requested by the
Union on April 12, September 11 and 16, and on October 3, 17, and 31, 2019.”
ROA.3094; see 29 U.S.C. § 160(e) (“[T]he court . . . shall have power . . . to
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make and enter a decree enforcing, modifying and enforcing as so modified,
or setting aside in whole or in part the order of the Board.”). That is because
it makes little sense to require Thryv to furnish the Union with years-old
information that relates mostly to employees who may never work for Thryv
again. See NLRB v. Maywood Plant of Grede Plastics, 628 F.2d 1, 7 (D.C. Cir.
1980) (“[A] court in its supervisory role may decline to enforce portions of a
Board order that require affirmative action when that particular action has
become futile at the time enforcement is sought.”); NLRB v. Greensboro News
& Rec., Inc.,
843 F.2d 795, 798 (4th Cir. 1988) (same).
…
For the foregoing reasons, Thryv’s petition for review is
GRANTED. The Board’s order is VACATED IN PART with respect to
the following sections:
• Section 1: subsections (b), (c);
• Section 2: subsections (a), (b), (c), (d), (e), (f), (g), (h), (i), (j) (k).
The Board’s cross-petition for enforcement is DENIED with respect to the
same sections and GRANTED with respect to all other sections.
30
