Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—5th Cir.: Starbucks loses out on some claims it acted unlawfully to stymie union organizing efforts, (Sep 8, 2026)

By Ronald Miller, J.D.

Among the measures implemented by Starbucks was flying a team of senior executives and district managers from other stores around the country to support managers in Buffalo.

A divided Fifth Circuit granted enforcement in part of an NLRB order finding that Starbucks acted unlawfully in violation of Section 8(a)(1) when it flooded its Buffalo region with executives and out-of-state managers in the face of a union organizing campaign. However, the court denied enforcement of the Board’s Section 8(a)(1) decision with respect to the one finding of unlawful surveillance, the sole finding of unlawful interrogation, and the sole finding of coercive threats. Moreover, the appeals court concluded that Starbucks’s violations of Section 8(a)(3) and (4) were supported by substantial evidence, but it remanded this issue to the Board to specify the specific violations it relied on from its Section 8(a)(1) analysis. Judge Haynes filed a separate opinion concurring in part and dissenting in part (Starbucks Corp. v. NLRB, No. 24-60650 (5th Cir. Sept. 4, 2026)).

Union organizing campaign. On August 23, 2021, the union announced the launch of a union organizing campaign for Starbucks stores in the Buffalo region by posting a letter, signed by several employees, on social media addressed to Starbucks’ chief executive officer. Those employees solicited authorization cards from coworkers to encourage holding union elections throughout the Buffalo market. The union won certification at eight stores. However, it lost the vote at the Camp Road store despite receiving an authorization majority that August.

Starbucks filed a petition for review concerning its actions that ran concurrently with the union’s organizing activities. Among the measures implemented by Starbucks was flying a team of senior executives and district managers from other stores around the country to support managers in Buffalo. The senior executives held frequent meetings with Buffalo store managers to discuss the union campaign. Store managers were instructed to prohibit employees from wearing pro-union pins in stores.

The day after the union posted its letter to social media, the senior executives fired a district manager after pulling him away from group meetings to discuss unionizing concerns. Following a listening session, the employer permanently closed a kiosk location.

Store improvements. The same week the first petitions for representation were filed, the Buffalo regional manager initiated major changes across all stores in her region: She “remed[ied] poor leadership, staffing shortages, health-and-safety issues, and negative effects from the COVID-19 pandemic... ; sent senior managers to stores to work alongside [employees]; and ordered needed repairs.”

Starbucks also repaired and renovated stores at a quicker pace following the start of union activity in Buffalo.

Soliciting grievances. Starbucks solicited feedback from its Buffalo employees and appeared to offer them incentives and additional benefits. After employees complained of numerous issues—understaffing, wages, inadequate training, mobile orders, supply shortages, pest control, and broken equipment—Starbucks initiated a “hiring boom” that caused overstaffing. Starbucks announced in late October 2021 that seniority pay would be modified effective January 2022. The modification expanded the category of employees eligible for wage increases and the percentage range of the wage increase.

Discouraging unionization. Starbucks instructed managers to discourage union activities. Managers were asked to steer employees to vote against unionization by disparaging its effects on workplace conditions. One manager demanded that employees not discuss wages. Another halted union conversations at one store and privately spoke to purported instigators, prohibiting one employee from speaking to an off-duty employee about the union. Another instructed a shift leader to stop assigning shifts to union supporters, threatened the shift leader with reprisal when she expressed her union sympathies, and asked for updates on employees at that store who were union supporters.

Stricter adherence to policies. Enforcement dress code and attendance policies grew noticeably strict after Starbucks added support management to the Buffalo market and required all employees to reacknowledge its workplace rules and policies. Starbucks also imposed more onerous conditions on its Buffalo stores. The employer demanded more details for requests to disable mobile orders and rarely granted such requests. Store managers also implemented minimum-availability policies that required employees to work more hours and demanded greater availability than before.

Employees terminations. Starbucks also fired employees based on what it justified as business needs and/or substandard conduct. The union objected to Starbucks’ conduct that allegedly affected fair elections at Camp Road. It also accused Starbucks of unfair labor practices in Buffalo.

NLRB rulings. The NLRB’s General Counsel investigated the allegations of unlawful conduct by Starbucks and issued multiple consolidated complaints. In March 2023, an administrative law judge concluded that Starbucks violated NLRA § 8(a)(1), (3), (4), and (5) and sustained the union’s objections to the Camp Road election.

In December 2024, the Board adopted the ALJ’s conclusions, finding that Starbucks violated Section 8(a)(1) by creating the impression that employees’ union activities were under surveillance, coercively interrogating employees, soliciting grievances during the organizing campaign, saturating staffing at one store to dilute union elections, promising or granting benefits to employees in response to union organizing, and threatening employees. The Board also determined that Starbucks violated Section 8(a)(3) and (4) by closing the kiosk and disciplining and/or discharging employees based on what it had determined was anti-union animus. The Board also found Starbucks violated Section 8(a)(5) by changing policies and firing employees without first bargaining with the union.

Section 8(a)(1) findings. Starbucks maintained that the Board erred in determining its conduct amounted to coercion in violation of Section 8(a)(1). An employer violates Section 8(a)(1) by bestowing favors or economic benefits on employees with the “express purpose” of influencing unionization.

The Fifth Circuit determined that the Board’s conclusion—that Starbucks’s solicitation of grievances and conferral of benefits violated Section 8(a)(1)—was supported by substantial evidence in the record. Starbucks pointed to its nationwide practice of hosting “listening sessions,” preplanned improvements nationwide, importing employees to resolve understaffing, or centralization of training, to assert that such measures were ordinary and commonplace nationwide. However, it failed to address why it focused and amplified these measures in the Buffalo region only after union organizing activity began.

Next, the appeals court rejected Starbucks attempt to define the legal meaning of a “benefit.” By attacking the legal definition of a “benefit,” Starbucks offered nothing to refute the substantial evidence that sustained the Board’s conclusions of Starbucks’s improper motive in implementing improvements as “benefits.” The dispositive question was why Starbucks remedied safety violations only after the onset of union activity.

Increased wages. Next, Starbucks opposed the conclusion that it violated Section 8(a)(1) by moving up a planned national wage increase. The Board’s conclusion that the wage increases were motivated by union activity was supported by substantial evidence. It was reasonable for the Board to infer that Starbucks’ wage modification sprung from the listening sessions directed at union organizing activity.

Surveilling employees. Starbucks next disputed as unsupported the Board’s conclusion that it violated Section 8(a)(1) by (1) increasing support manager presence; (2) having support managers use headsets when not working the floor; (3) photographing an employee wearing a union pin; and (4) referencing an employee-only group chat during an investigation.

Substantial evidence supported the Board’s first three findings of unlawful surveillance. The “extraordinary conduct” in question amounting to surveillance was Starbucks’s unexplained saturation of nonlocal support managers to Buffalo stores only after the union campaign began. Credited testimony demonstrated that the increased number of support managers led employees to believe these managers were staffed to surveil their union activities.

Moreover, Starbucks’s arguments regarding its managers’ headset use fared no better. Starbucks’s focus on the appropriateness of headset use for “work-related communications on the job” was inapposite when substantial evidence illustrated support managers using headsets to monitor and confront employees on and off the floor.

As for a manager’s photograph of an employee wearing a union pin, the record demonstrated that Starbucks had instructed managers to discourage employees from wearing union pins in stores, and that the manager took a photograph of the employee only a day or two after the union campaign launched.

Interrogating employees. Starbucks disputed the Board’s determination of unlawful interrogation based on a manager’s questioning—“you support this?”—of an employee while pointing at her union pin.

“It is well established in this Circuit that interrogation of employees is not illegal per se.... To fall within the ambit of [§] 8(a)(1), either the words themselves or the context in which they are used must suggest an element of coercion or interference.”

Here, in view of the employee’s own testimony of her conversation with the manager, the Board’s conclusion was not supported by substantial evidence. The employee’s testimony substantively undermined any impression of coercion that may have sounded in from the manager’s initial inquiry.

Coercive threats. Lastly, Starbucks maintained that its statements comparing benefits of nonrepresentation with unionization did not violate Section 8(a)(1). Contrary to the Board’s position, Starbucks was persuasive that the managers’ statements regarding their limited ability to assist employees to the same degree, or unionization’s effects on their transferability to other stores, did not suffice to lead a reasonable mind to infer a threat of economic reprisal. In the context of these statements, nothing in the record suggested that these “potential effects” were based on issues unrelated to economic necessities or facts known only to Starbucks. Rather, the record supported Starbucks’s position.

Accordingly, with exception to one finding of unlawful surveillance, the sole finding of unlawful interrogation, and the sole finding of coercive threats, substantial evidence supported the Board’s conclusion that Starbucks violated Section 8(a)(1).

Sections 8(a)(3) & (4) findings. Starbucks next disputed the Board’s determination concluding that it had violated Sections 8(a)(3) and 8(a)(4) based on how it disciplined employees, changed work schedules, and closed the kiosk. An employer violates Section 8(a)(3) by discharging employees because of their union activity. Section 8(a)(4) similarly prohibits an employer from taking adverse action against an employee “because [they] have filed charges or given testimony under [the Act].”

The appeals court concluded that Starbucks’s violations of Sections 8(a)(3) and (4) were supported by substantial evidence, but it remanded this issue to the Board to specify the specific violations it relied on from its Section 8(a)(1) analysis.

Anti-union motive. To start, the Board’s decision pointed to an extensive record of conduct that was more than sufficient for a reasonable mind to infer an anti-union motive in taking adverse actions against union-affiliated employees. The record illustrated an “unprecedented” mass mobilization of corporate executives into Buffalo, despite a history of lax enforcement. This was sufficient to support the inference that union activity inspired that kind of response.

Adverse employment actions. Starbucks alternatively claimed that even if the Board established a prima facie case of anti-union animus, it would have still taken its adverse actions against the employees in question absent any animus. With respect to the closure of the kiosk, the Board contended that it simply found Starbucks’s reasons for its closure uncorroborated by the record. Even if Starbucks cited genuine business interests for closing the kiosk, it took no action until after union campaign launched, and no evidence supported any finding that Starbucks had planned to close the kiosk until after the union campaign began. Thus, the appeals court found the Board’s conclusions that Starbucks violated Sections 8(a)(3) and (4) were supported by substantial evidence.

Section 8(a)(5) findings. Starbucks also contested the Board’s conclusion that it violated Section 8(a)(5) for failing to bargain with the union regarding a change in Starbucks’s minimum-availability policy and for discharging two employees. Substantial evidence in the record supported the Board’s Section 8(a)(5) determination. While Starbucks averred that both policies—minimum availability and discipline—preceded any union certification at that store, the dispositive factual issue was whether Starbucks’s enforcement of those policies changed after it appeared to enforce stricter availability requirements, shortly after the store’s union certification in December 2021.

Remedies. Starbucks targeted four ordered remedies in its petition for review: (1) compensating employees for direct and foreseeable pecuniary harm; (2) a bargaining order at Camp Road; (3) reopening the kiosk; and (4) requiring a public reading of a notice to Buffalo employees.

Consequential damages. Fifth Circuit precedent prevents the Board from awarding compensatory damages for all direct and foreseeable harm. Thus, the Board could not order legal damages under the NLRA and was foreclosed from awarding that kind of remedy against Starbucks.

Bargaining order. Next, Starbucks claimed that insufficient evidence supported the Board’s remedy of a bargaining order at the Camp Road store. The record weighed in favor of the Board under the Gissel analysis. Under the first prong, the Camp Road store secured authorization cards. Starbucks engaged in serious and extensive unfair labor practices by coercively granting benefits to employees through a wage increase and promotions, improving working conditions, demoting a lead organizer, reducing store hours, and instructing managers to threaten benefits. Thus, the record illustrated Starbucks’s pervasive conduct at Camp Road, alongside other stores throughout Buffalo, sufficing to support an inference of difficulty in ensuring a fair election without the protections of a bargaining order.

Reopening kiosk. Starbucks also opposed the Board’s order to restore the kiosk after shuttering operations there for “legitimate, non-retaliatory reasons.” The record demonstrated that the kiosk is presently—and for the last five years—owned and operated by another entity. It would be difficult for Starbucks to break a licensing agreement with a third party to reassert control of the kiosk. Accordingly, the appeals court declined to grant enforcement as to this remedy.

Reading of public notice. Lastly, Starbucks challenged the Board’s order requiring an executive to attend the public reading of a Board-crafted notice. Starbucks contended this remedy was disproportionately punitive given that it was not a “repeat violator” and did not create a “chill atmosphere of fear.” However, the appeals court pointed out that the myriad decisions involving Starbucks’ unfair labor practices lends support to the inference that this petition was not the first against the employer. Accordingly, the record was sufficient to warrant a public notice-reading order.

Concurrence in part and dissent in part. While Judge Haynes agreed with portions of the majority opinion, he disagreed on several issues. First, he disagreed with the majority’s analysis of Section 8(a)(1) violations. The dissent argued that Starbucks’ actions were most properly understood as appropriate efforts that it undertook once it learned of the pervasive, serious issues in those stores—part of its normal practices to improve the health and safety of its Buffalo stores. The dissent also disagreed that Starbucks also violated Section 8(a)(1) by moving up a planned national wage increase and promoting two of its employees. As to Starbucks’ alleged Section 8(a)(3) and (4) violations, the dissent would deny enforcement of the Board’s decision. Rather, the dissent argued that it was necessary to remand this issue to the Board for further consideration.

The case is No. 24-60650.

Judge: Wiener, J., Jr.

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

Companies: Starbucks Corporation

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