Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—5th Cir.: Starbucks store manager unlawfully threatened employee with loss of benefits for union activity, (Sep 8, 2026)

By Kathleen Kapusta, J.D.

The court denied the NLRB’s request for enforcement with regard to statements about reducing store hours and hiring portal changes and the impression of surveillance.

Although the Fifth Circuit found statements by a Wichita, Kansas, store manager to a pregnant employee in a one-on-one meeting, that benefits could not be guaranteed if she was interested in organizing, constituted an unlawful threat of reprisal in violation of the NLRA, it found statements regarding the reduction of store hours and the closing of the hiring portal did not rise to the same level. Nor was the Board’s finding that Starbucks created the impression that employees’ union activities were under surveillance supported by substantial evidence, said the court, granting in part and denying in part the NLRB’s request for enforcement of its order (Starbucks Corp. v NLRB, No. 24-60653 (5th Cir. Sept. 4, 2026)).

PDC meetings. In 2022, Starbucks stores nationwide were discussing unionization. Around that same time, a store manager in the Wichita, Kansas, store held performance development conversations (PDC) with three relatively new employees that lasted 10-20 minutes and covered employee performance, career development interests, and company benefits. According to one of the three, who was pregnant, the store manager, after highlighting the company’s maternity leave benefits, told her she was aware of union organizing discussions and stated that if the employee was interested in organizing, “these benefits could not be guaranteed to you.”

The manager also told another employee that the store’s hours were being shortened in order to relieve union pressure on employees and that the hiring portal was down because managers were unable to discuss the union with prospective employees.

After the union lost an election at the store in July 2022, it filed charges against Starbucks and the NLRB’s general counsel issued a complaint alleging Starbucks violated Section 8(a)(1) of the NLRA by “threatening employees with loss of benefits if they unionized; creating the impression that employees’ union activities were under surveillance; and telling employees it closed its hiring portal and reduced store hours because of employees’ union or other protected activities.”

ALJ and Board decisions. An ALJ found Starbucks violated the NLRA by creating the impression of surveillance and making threats of reprisal and the NLRB, with Member Kaplan dissenting, adopted the ALJ’s findings. Starbucks petitioned for review and the NLRB cross-petitioned for enforcement.

Loss of benefits. Addressing first Starbucks’ challenge to the manager’s statements referencing the loss of benefits, the Fifth Circuit noted that the statement to the pregnant employee that benefits could not be guaranteed if she was interested in organizing did not include any context to temper the predictive statements and ground them in objective fact. That the manager made the statement after having just highlighted the company’s maternity benefits suggested the employee stood to lose crucial benefits, said the court.

While Starbucks argued that the context of manager’s statements was non-coercive as the PDC meetings were typically short discussions and generally provided positive feedback, the court found these background facts unavailing as it was concerned only with the objective employee perspective under the totality of the circumstances. And here, maintaining an objective standard, the Board’s decision that an employee could reasonably feel their union activities were threatened by a suggested reduction in benefits was supported by substantial evidence. Thus, the court granted enforcement of the court’s determination that the statements to the employee constituted an unlawful threat of reprisal.

Reduction of store hours. Starbucks next challenged the Board’s finding that it acted unlawfully when the manager told the second employee, who was a shift supervisor, that she was reducing store hours “to relieve some of the pressure that the Union had on people.” The court first found the ALJ mischaracterized the manager’s testimony. Although her statement regarding store hours referenced the union, she did not suggest that union activity would be penalized but rather said she was trying to “relieve some of the pressure that the Union had on the people.”

Not only was this “materially different from linking the store hours change to the employees’ protected activities,” but also it diminished the basis for finding the remark to be coercive as there simply was no outright threat or invocation of a reduction in store hours, said the court. In addition, reviewing the record as a whole, it was not apparent that substantial evidence supported the finding that a reasonable employee in the employee’s shoes here would have understood the statement to be a coercive threat.

Indeed, the court observed, as a shift supervisor, he testified that knew there was a decent number of employees who were not showing up to work around this time and that this was not union-related and that he understood the challenges from understaffing and that it was not uncommon to respond by reducing hours. Denying enforcement of the claim that the supervisor’s statement regarding store hours constituted an unlawful threat in violation of Section 8(a)(1), the court recognized that a reasonable employee in the position of shift supervisor would understand the manager’s statement differently from how another employee potentially would.

Hiring portal changes. Rejecting next Starbucks’ contention that the manager “telling employees that it had closed the store’s hiring function... because of the employees’ union or other protected activities” constituted a threat of reprisal, the court noted the shift supervisor’s testimony that the assistant manager, who made the statement, conveyed no reluctance to hire but instead conveyed that doing so was difficult without being able to discuss the union. “This distinction,” said the court, “is of import in light of the context of hiring; wages and benefits—aspects of employment that may change following unionization—are two terms of employment that prospective employees would reasonably want to know before beginning their employment.” And in light of this context, and the exact statement the assistant manager made, the court found substantial evidence lacking that it was coercive in nature.

Further, the court found the statement too attenuated from current employees’ terms and conditions of employment as the “context of the statement did not tie in to current employees’ employment by threatening reprisal on account of their protected activities.”

Impression of surveillance. Finally, Starbucks challenged the Board’s finding it created the impression that employees’ union activities were under surveillance. The Board based its decision on statements by the manager regarding having knowledge of union activity in the district and the store. Here, the court observed that employees testified that union discussions may have occurred both in and out of the store and one employee testified that she “would sit out there with [her] coworkers” when discussing unionization.

While the Board determined that employees did not engage in open union activity in the workplace, the court found the Board failed to fully grapple with the employee’s testimony that she “would sit out there” with her coworkers. Though the parties disputed the meaning of this phrase, the court found “its plain meaning describes being out in the main area of the store as opposed to the back.” This testimony, said the court, countered the notion that all discussions of unionization occurred outside the store.

Turning to the Board’s determination that the manager’s statements were “out of the ordinary” and contributed to leading “reasonable employees to assume that [Starbucks] had placed their union activities under surveillance,” the court found she first referenced unionization efforts in the April PDC meetings, which were the first ones after such efforts began. This context, said the court, “‘adds nothing to the coerciveness inquiry,’ and therefore is at least not supportive of the Board’ finding.”

Rejecting finally Starbuck’s assertion the Board erred in failing to determine whether the alleged surveillance was coercive, the court noted that she shared only a general awareness of unionization talk going around. Citing evidence of union discussions in the store, limited evidence of whether the context was out of the ordinary, and only general awareness of the organizing activities, the court found no substantial evidence to support the finding that the manager’s statements created an impression of surveillance and thus it denied enforcement on this claim as well.

The case is No. 24-60653.

Judge: Higginson, S.

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

Companies: Starbucks Corporation

Cases: Labor UnfairLaborPractices LouisianaNews MississippiNews TexasNews