United States Court of Appeals

for the Fifth Circuit ____________

No. 23-60132

____________

Thryv, Incorporated, 

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. 

United States Court of Appeals

Fifth Circuit

FILED

May 24, 2024

Lyle W. Cayce

Clerk

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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 unionsto 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 revenuesto 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 NLRAconferred 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 AdvisorPremise 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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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’slack 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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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 collectivebargaining 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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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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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 collectivebargaining 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.

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