Aug 13 (Reuters) - The National Labor Relations Board

has told a federal appeals court that a recent U.S. Supreme

Court ruling barring certain in-house agency enforcement

proceedings has no effect on its powers to remedy illegal labor

practices.

The board in a brief filed on Monday with the 9th U.S.

Circuit Court of Appeals in a case involving Macy's said the

high court's June ruling in Jarkesy v. U.S. Securities and

Exchange Commission did not disturb a Supreme Court decision

from the 1930s upholding the NLRB's then-novel structure.

The Supreme Court in Jarkesy said the SEC's practice of

imposing fines in administrative cases involving financial fraud

violated the U.S. Constitution's guarantee to a trial by jury.

The board in Monday's brief said ensuring that workers are

made fully whole for costs they incur as the result of illegal

firings and other employer misconduct is distinct from the

punitive damages levied by the SEC and other agencies.

"Such relief does not punish bad actors, but rather

implements the statutory principles of rectifying the harms

actually incurred by the victims of the unfair labor practices,"

board lawyers wrote.

But Macy's, which is appealing an NLRB decision that found

the retailer illegally locked out workers after a strike, said

in a dueling brief on Monday that Jarkesy applies to any claims

that evolved out of common law including those involving illegal

firings, which are akin to wrongful termination claims.

The decades-old Supreme Court precedent cited by the board

only involved back pay and not the more expansive money remedies

the NLRB has sought in recent years, the company said.

"The Board addresses the legality of union activity (and

employer responses) through the lens of [federal labor law] just

as the common law did through claims such as breach of contract,

interference with business relations, and conspiracy," Macy's

lawyers wrote.

The 9th Circuit, which heard oral arguments in the case in

March, had asked last month for supplemental briefs on the

impact of Jarkesy. The panel includes 9th Circuit Judges

Jacqueline Nguyen and Patrick Bumatay and Federal Circuit Judge

Evan Wallach, who is sitting by designation.

The Supreme Court decision only directly impacts the SEC,

but is widely expected to lead courts to block other agencies

from handing down penalties in administrative cases. Last week,

Comcast filed a lawsuit claiming that U.S. Department of Labor

proceedings in cases involving financial whistleblower claims

are unconstitutional.

Federal labor law only allows the NLRB to impose remedies

that make workers subjected to unlawful conduct whole and does

not allow for statutory penalties, but the board in recent years

has attempted to expand them.

In a 2022 decision in the case Thryv Inc, the board said it

would begin ordering employers to reimburse workers for

financial harms tied directly to unlawful labor practices, such

as out-of-pocket medical expenses and credit card fees incurred

by workers as a result of being illegally fired.

The NLRB cited Thryv in Macy's case and ordered the company

to pay workers for any "direct or foreseeable" monetary harms.

The New Orleans-based 5th Circuit in May threw out the Thryv

ruling, but it did so on the merits of the board's decision and

did not address the broader issue of remedies.

The case is Macy's Inc v. NLRB, 9th U.S. Circuit Court of

Appeals, No. 23-150.

For the NLRB: Usha Dheenan and Barbara Sheehy

For the union: David Rosenfeld of Weinberg, Roger &

Rosenfeld

For Macy's: Laura Ann Pierson-Scheinberg of Jackson Lewis

Read more:

US court weighs impact on NLRB of Supreme Court ruling on

agency powers

NLRB ruling that expanded money damages for workers rejected

by 5th Circuit

SEC in-house judges violate right to jury trial, appeals

court rules

US Supreme Court faults SEC's use of in-house judges in

latest curbs on agency powers

NLRB GC directs staff to seek expansive remedies for workers

Workers entitled to more money from employers who break the

law - labor board

(Reporting by Daniel Wiessner in Albany, New York)