The National Labor Relations Act (NLRA); Unfair labor practice (ULP); Discharge of an employee due to organizing activity; 29 USC § 158(a) (§ 8(a)); Burden-shifting process; Prima facie case; Anti-union animus; Disparate treatment; Timing; Whether the employer showed the employee would have been fired absent the union activity; Substantial evidence; Remedy; § 160(c) (§ 10(c)); “Affirmative action” to remedy NLRA violations; Thryv, Inc (NLRB); Equitable relief; Award of “direct or foreseeable” monetary damages; The jury trial right

The court held that substantial evidence supported petitioner-Board’s decision that respondent-employer (Starbucks) committed an ULP because it discharged an employee (nonparty-W) due to her union organizing activity. But “the Board exceeded its statutory authority in awarding [W] ‘direct or foreseeable’ monetary damages[.]” Thus, the court granted the Board enforcement of its decision that Starbucks committed an ULP but vacated the remedy and remanded. It first determined that substantial evidence supported the Board’s finding “that anti-union animus motivated Starbucks’s conduct.” The court concluded “several pieces of evidence indicate that termination was not the anticipated or common penalty for this infraction, and that at least one other employee engaged in the same conduct as [W] but” was not fired as a result. As to timing, “while it may be merely coincidental that Starbucks fired [W] during or shortly after her protected activity,” the court determined that record evidence supported the Board’s conclusion. And a district manager’s “conduct could suggest a general hostility toward” intervenor-union’s organizing efforts, of which he knew W was a supporter. As the Board established its prima facie case, the burden shifted to Starbucks to prove it would have fired W despite her union activity. “No silver bullet decisively establishes Starbucks’s improper motive in discharging [W]. But under our precedent, it is enough that, taking the record as a whole, substantial evidence supports the Board’s prima facie case and defeats the company’s affirmative defenses.” The issue as to the remedy was “whether Congress used ‘affirmative action’ as a phrase of art referring only to equitable remedies, . . . or instead as a literal phrase encompassing all types of relief, including those legal in nature[.]” The court found that “all signs point to the former.” Thus, it held that “the Board’s authority under § 10(c) to order employers to take ‘affirmative action’ encompasses only equitable remedies.” And it concluded the remedy the Board imposed here “reflects legal relief amounting to money damages, to which a jury trial right attaches.” The court did “not doubt the Board’s authority to tailor monetary payments so that they serve solely ‘to restore the status quo,’ rendering them equitable.” But the Board was “measuring monetary relief from the standpoint of the employee’s loss, indicating its compensatory nature, rather than the employer’s gain, which invokes equitable considerations.” In doing so, it “impermissibly shifted from equity to law.”