06/24/2026: Fifth Circuit Partially Upholds Starbucks ULP Decision
Armour-Globe election. Health Care rule disagreements.
Starbucks v. NLRB, 24-60651 (5th Circuit)
The Fifth Circuit partially enforced and partially denied an NLRB order arising from a 2022 union organizing campaign at a Starbucks store in Sylmar, California. The court found that the Board had substantial evidence for some of its unfair labor practice findings but not others, and concluded it lacked jurisdiction to review the Board's order for a new election.
The case turned heavily on what store managers said to individual employees during the organizing drive. Manager Tiffany Fuller told employee Edison Sosa that upcoming pay and benefit increases would be "put on pause" because of the unionization process. The court refused to enforce the Board's ruling on that statement because the Board relied on a rule from NLRB v. Dothan Eagle that applies only to benefits already embedded in an established compensation system. The announced increases were new and unimplemented, not part of any pre-existing wage structure, and neither the ALJ nor the Board identified evidence to the contrary.
Fuller's conversations with David Ramirez and Jason Untaran fared differently. Her statement to Ramirez that benefits could be lost "through negotiation," combined with the fact that those benefits were within Starbucks's own control, was ambiguous enough that a reasonable employee could read it as a threat of punitive bargaining. The court upheld that finding. As for Untaran, Fuller told him that tuition and health benefits would be withheld during negotiations. Because those were existing benefits that Starbucks had no legal right to withdraw during an election period under Dothan Eagle, the statement proposed unlawful conduct and constituted a coercive threat regardless of whether Fuller framed it in probabilistic terms.
The court split on the findings relating to employee Barbara Pichardo. Manager Jennifer Tayarah told Pichardo that unionizing "wouldn't change the world" and that better pay was available at other jobs. Under Brown & Root, Inc. v. NLRB, a statement of union futility violates Section 8(a)(1) only when accompanied by a threat that the employer itself will take action to make union support futile. Because Tayarah's "wouldn't change the world" comment carried no such accompanying threat, the futility finding was vacated. But the "other jobs" comment survived: given Pichardo's prior conversations with management about unionization and the context in which the statement was made, a reasonable employee could interpret it as a threat of termination for union support.
On the interrogation of Untaran, the ALJ had initially found no coercive interrogation, but the Board reversed and the court agreed with the Board. Fuller asked Untaran how he "felt about unionization" during a one-on-one meeting that began by acknowledging the union petition and ended with what the court found was a coercive threat about benefits. Under the eight-factor totality-of-circumstances test, the court found that Fuller's rank as the highest-level person at the store, her failure to assure Untaran that his answer would not be used against him, and the surrounding context of anti-union activity outweighed factors favoring Starbucks, such as the back-of-house being a relatively public area and Untaran's relatively candid answer.
The court then rejected the Board's finding that Starbucks fired Untaran because of his union activity. The ALJ had inferred anti-union animus from the timing of the firing and from comparisons to two other employees, AP and NQ, who the ALJ believed received more lenient treatment. The court found both comparisons flawed. AP was terminated after a single final warning, just as Untaran was, and her prior misconduct (dress code violations and a workplace argument) was meaningfully different from Untaran's conduct (repeated tobacco policy violations). NQ's situation also differed, as her primary violation occurred in a concentrated incident rather than a pattern of behavior. With the comparator analysis eliminated, all that remained was the timing of the firing, and the court held, following NLRB v. Arkema, that timing alone is not substantial evidence of anti-union animus.
Because the wrongful-discharge finding fell, the court also declined to address the Board's compensatory damages order. On the new election remedy, the court dismissed Starbucks's challenge for lack of jurisdiction, holding that an order in a consolidated representation proceeding is not a "final order" subject to appellate review under the NLRA. Starbucks may seek review after the second election if the Board later orders it to bargain.
Significant Cases Cited
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Established that employer predictions about the effects of unionization must be carefully grounded in objective fact and cannot imply threats of economic reprisal beyond the employer's control.
NLRB v. Dothan Eagle, Inc., 434 F.2d 93 (5th Cir. 1970): Held that when a benefit has become part of an employer's established wage or compensation system, the employer cannot unilaterally alter it during a union campaign or collective bargaining.
NLRB v. Arkema, Inc., 710 F.3d 308 (5th Cir. 2013): Set out the prima facie elements for proving unlawful termination based on protected activity and held that timing alone is insufficient to establish anti-union animus.
Brown & Root, Inc. v. NLRB, 333 F.3d 628 (5th Cir. 2003): Held that a statement about the futility of union organizing violates Section 8(a)(1) only when it is accompanied by a threat that the employer itself will take action to make union support futile.
Renew Home Health v. NLRB, 95 F.4th 231 (5th Cir. 2024): Articulated the eight-factor totality-of-circumstances test for determining whether an employer's questioning of an employee constitutes coercive interrogation under Section 8(a)(1).
Stanford Health Care, 32-RC-386413 (Regional Election Decision)
SEIU-UHW filed a petition seeking an "Armour-Globe" self-determination election, a procedure that allows an unrepresented group of employees to vote on whether to join an already-existing bargaining unit. The union represents a broad unit of social workers, mental health clinicians, and nonprofessional service and patient care employees at Stanford Health Care's Palo Alto facilities, and it sought to add approximately 23 Radiation Therapists to that unit. Stanford Health Care disputed whether the Radiation Therapists share a sufficient community of interest with the existing unit to make such an election appropriate. Acting Regional Director Hokulani Valencia found that they do, and directed an election scheduled for July 8, 2026.
The analysis turned on the standard community-of-interest factors drawn from United Operations, Inc.
Two factors weighed against finding a community of interest. Radiation Therapists work within the radiation oncology department, which contains no bargaining unit employees, making them a distinct administrative grouping within the broader cancer service line. Separately, the Radiation Therapists have no common supervisor with bargaining unit employees below the vice president level.
Three factors weighed in favor. The record showed extensive daily work-related contact between Radiation Therapists and bargaining unit employees: anesthesia technicians set up and staff treatment rooms alongside them, MRI technicians receive patient handoffs and jointly transfer patients for imaging, social workers receive referrals from Radiation Therapists, and housekeeping staff regularly move through the department. There is no interchange in the formal sense, because no bargaining unit employee can substitute for a Radiation Therapist, but the frequency and depth of collaboration was found sufficient to weigh in favor of shared community of interest. On skills and functions, Radiation Therapists share certain licensure certification pathways with other bargaining unit employees who hold ARRT credentials, and they are subject to the same hospital-wide training requirements, including patient identification protocols, safe patient handling, and HIPAA compliance. Finally, functional integration was found to be high: Radiation Therapists and bargaining unit employees depend on each other at multiple points in the patient care process, from scheduling through treatment delivery.
Terms and conditions were deemed neutral. Radiation Therapists earn between $74.50 and $108.15 per hour, well above the $28.39 to $58.30 range for bargaining unit employees, but both groups share the same HR department, health insurance benefits, and work rules.
On balance, the regional director concluded that the high degree of work-related contact, functional integration, and similarity of functions outweighed the separate supervision and departmental structure, and that the Radiation Therapists share a sufficient community of interest with the existing unit to make a self-determination election appropriate.
Significant Cases Cited
Armour & Co., 40 NLRB 1333 (1942): Established the self-determination election procedure allowing an unrepresented group of employees to vote on whether to join an existing bargaining unit.
Globe Machine & Stamping Co., 3 NLRB 294 (1937): Foundational case establishing that employees may be given a choice about whether to be represented separately or as part of a broader unit.
United Operations, Inc., 338 NLRB 123 (2002): Set out the multi-factor community-of-interest test used to determine whether employees share sufficient common interests to be placed in a single bargaining unit.
Hilton Hotel Corp., 287 NLRB 359 (1987): Held that frequent interchange between employee groups may suggest blurred departmental lines and weighs in favor of a shared community of interest.
Public Service Co. of Colorado, 365 NLRB 1017 (2017): Applied community-of-interest analysis in the Armour-Globe context, finding a self-determination election appropriate where petitioned-for employees worked in the same department and broader service area as existing unit employees.
Anodyne Coffee, LLC, 18-RC-364279 (Unpublished Board Decision)
The Board denied Anodyne Coffee's request for review of the regional director's decision in this representation case, finding that the request raised no substantial issues warranting review. The Milwaukee Area Service and Hospitality Workers Union had petitioned to represent employees at the company.
Sharp Staffing Resource Network, 374 NLRB No. 135, 21-RC-361867 (Published Board Decision)
The Board denied Sharp Staffing Resource Network's request to review the Acting Regional Director's decision directing an election among a unit of technical and other non-professional employees sought by SEIU-UHW. A majority of the Board found the request raised no substantial issues warranting review, and denied the employer's related request for a stay of the election as moot.
The majority noted that the employer had challenged the applicability of the Health Care Rule (Section 103.30 of the Board's Rules and Regulations) for the first time in its Request for Review, making the argument procedurally improper under the Board's rules, which bar raising issues not timely presented to the Regional Director. The majority also rejected the employer's due process argument that it lacked notice the Health Care Rule was at issue, pointing to the union's petition (which explicitly cited Section 103.30), the employer's own pre-hearing stipulation acknowledging the unit was defined under the Health Care Rule, and the employer's failure to challenge the rule's application in its Statement of Position.
Member Mayer dissented, arguing the Acting Regional Director committed legal error by treating the petitioned-for unit as presumptively appropriate under the Health Care Rule. The Health Care Rule establishes eight enumerated units as the presumptively appropriate and only appropriate units in acute care hospitals, with combinations of those units available only "if sought by labor organizations," not as presumptively appropriate. Because the petitioned-for unit combined two of the eight enumerated categories, Mayer argued it was not presumptively appropriate, meaning the employer's challenge to unit appropriateness needed to be litigated on the merits. The hearing officer's ruling that the unit was presumptively appropriate shut down that litigation, and Mayer concluded the employer's further objection would have been futile, making the issue sufficiently preserved. Mayer would have remanded to develop a record on unit appropriateness.
Significant Cases Cited
Allen Health Care Services, 332 NLRB 1308 (2000): Held that absent a stipulation, presumption, or rule establishing appropriateness, the Board must have record evidence that a proposed unit is appropriate before directing an election.
Satellite Healthcare (Santa Rosa), 374 NLRB No. 25 (2026): Addressed and rejected the contention that an Acting Regional Director lacked authority to process a petition absent a Board quorum.