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. Case: 23-60132 Document: 94-1 Page: 2 Date Filed: 05/24/2024

No. 23-60132

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.

2 Case: 23-60132 Document: 94-1 Page: 3 Date Filed: 05/24/2024

No. 23-60132

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 om