Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—5th Cir.: NLRB failed to fully address contradictory evidence, so Starbucks granted petition for review of Board order, (May 18, 2026)

By Ronald Miller, J.D.

The Fifth Circuit observed that the Board must consider contradictory evidence or evidence from which conflicting inferences could be drawn.

The Fifth Circuit granted Starbucks’ petition for review of a decision of the NLRB concluding that the employer unlawfully terminated a shift supervisor and union organizer for a profanity-laden rant about a coworker in a group chat, failing to complete closing tasks, and opening an official letter from the NLRB addressed to Starbucks. Because the Board failed to fully address contradictory evidence in the record, the appeals court reversed the Board with respect to the termination. Judge Oldham filed a separate opinion concurring in part (Starbucks Corp. v. NLRB, No. 24-60649 (5th Cir. May 14, 2026)).

Union organizing campaigns. Employees at two Starbucks locations in upstate New York began union organizing campaigns in the Spring of 2022. At one location, a union organizer and shift supervisor was terminated after a series of infractions including using profanity about a coworker in a group chat, failing to complete all tasks during a shift, and opening a letter addressed to Starbucks. At the second store, a district manager substantially increased her presence during the union campaign.

An administrative law judge concluded that the employee’s termination did not violate the NLRA, but that the district manager’s increased presence created an unlawful impression of surveillance. The Board agreed regarding the unlawful impression of surveillance but disagreed about the termination. Instead, the Board concluded that Starbucks would not have disciplined or terminated the employee but for his protected union-related activities. Starbucks filed a petition for review, and the Boad filed a cross-application for enforcement.

Workplace profanity. The Fifth Circuit observed that the Board must consider contradictory evidence or evidence from which conflicting inferences could be drawn. Here, the appeals court was not convinced that the Board adequately considered contradictory evidence. First, the Board’s decision did not sufficiently address evidence that no other employee had used extreme profanity targeted at coworkers. It noted only that other employees had used profanity in the workplace, but that was a far cry from extreme and sexist language aimed at a fellow employee and supervisor.

Next, the Board concluded that earlier events that led to disciplinary action against the employee were not “relevantly similar” to his obscene text messages. The earlier discipline also involved profanity in the workplace, so the Board should at least consider whether Starbucks would have seen this as an escalating issue.

Further, the Board did not properly grapple with the fact that no other shift supervisors failed to complete closing tasks while on final warning. Finally, the Board gave only cursory attention to evidence that employees generally did not open mail and the employee stated that he opened that particular letter because he did not believe that Starbucks would share its contents with its employees. It was possible that a reasonable employer would have responded as Starbucks to the employee opening official mail from the NLRB.

Accordingly, the Fifth Circuit concluded that the Board’s decision should be vacated and remanded back to the NLRB. Here, the appeals court determined that the Board did not fully grapple with countervailing portions of the record.

Partial concurrence. Judge Oldham agreed with the appeals court’s decision to grant Starbucks’s petition for review of the Board’s decision, but he would not have remanded the matter back to the NLRB. According to Judge Oldham, the Board deviated from fair-minded, law-based adjudication. The ALJ correctly recognized that the employee could be fired for his profanity-laden rants, but the Board entirely ignored it. So, Judge Oldham would not give the Board a second chance to do the right thing.

The case is No. 24-60649.

Judge: Graves, J., Jr.

Attorneys: Lisa Schiavo Blatt (Williams & Connolly) for Starbucks Corp. Ruth E. Burdick for the NLRB.

Companies: Starbucks Corporation

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