The NLRB already has enough leftover headaches from the Abruzzo era working through the courts, but an extra little punch has emerged with a side of profanity. Starbucks Corp. v. NLRB has made its way through the Fifth Circuit, which ruled that the Board failed to consider (i.e., “ignored”) relevant employer evidence that a union activist was fired for reasons other than organizing. The court also remanded the case to the Board.
This case is worth monitoring as a still-developing matter for employers because it involves disciplining workers who happen to be organizing.
The Procedural Background
Amid a Spring 2022 organizing campaign in Latham, NY, Starbucks placed a shift supervisor on final warning and fired him following several offenses. As recapped by the Fifth Circuit, those offenses included posting “obscene” messages involving “extreme profanity” in a group chat as well as failing to complete closing duties. This supervisor also opened a letter that was addressed to the company “because he did not believe that Starbucks would share its contents with employees.” That letter came from the NLRB.
Later, an ALJ found that Starbucks did not illegally fire this supervisor, but the Board disagreed. In doing so, the Democratic majority applied the Wright Line dual-motive analysis and concluded that this worker wouldn’t have been fired if not for his organizing activity.
The Fifth Circuit’s Holding And An Equally Important Concurrence
For the court’s majority, Obama-appointed Judge James Graves wrote that the court was “not convinced the Board adequately considered contradictory evidence,” which included the following:
- The extreme nature of the supervisor’s profanity: Although other Starbucks employees swore in the workplace, the Board failed to distinguish the severe and repeated qualities of this supervisor’s outbursts. Additionally, “an 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.”
- The supervisor’s failure to complete closing tasks while on final warning: The court noted no other shift supervisors at this Starbucks location had similarly failed at these tasks.
- Opening the NLRB letter: Although supervisors did regularly open packages that arrived at the store, the court noted that “a reasonable employer would have responded much differently” to an employee opening official Board mail addressed to the company.
The majority’s decision also cited the Supreme Court’s Universal Camera Corp. v. NLRB (1951) ruling, which requires the Board to weigh contradictory evidence. It’s a holding that the Fifth Circuit has followed multiple times, including in Entergy Mississippi, Inc. v. NLRB (2015).
Here’s where things get interesting. The Fifth Circuit’s reversal and remand included a concurrence from Judge Andrew Oldham, who believes that the remand was the wrong move. As he put it, “I would not give the Board a second chance to do the right thing.” That sentiment sums up the judicial tide that the current Board is swimming against as it works through a historic backlog built up under Abruzzo’s enforcement push.
Additionally, Oldham recounted the supervisor’s string of profanity, which included labeling a female coworker a “dumb f***ing b**ch” and his store manager a “f***ing stupid” “lizard brain,” and “chicken s**t,” among other things. Oldham wrote, “If a company in this country cannot choose to fire someone for this sort of unhinged abuse, then Heaven help us.”
Oldham further pointed to SpaceX’s 2025 constitutional challenge to the Board’s structure as evidence of deepening distrust of the Board’s mechanisms, including under Abruzzo’s tenure as General Counsel.
Where The Case Goes From Here
This Starbucks case isn’t over, and the company didn’t technically “win.” The decision heads back to the Board, which should soon have a third GOP member and has a more employer-friendly posture than the one that ruled against Starbucks the first time. The likely twist to come: the same Board that found a violation may now reach the opposite result on remand.
FAQs
What is the Wright Line dual-motive test?
It is the framework the NLRB uses when discipline may have both a lawful reason and an unlawful motive tied to protected activity. Once protected activity and employer knowledge of it are demonstrated, the burden shifts to the employer to prove it would have imposed the same discipline even without the protected activity.
What did the Fifth Circuit find that the Board was at fault for?
Not for reaching the wrong outcome, but for failing to engage the employer’s contradictory evidence. Under Universal Camera, the Board must weigh the whole record, including facts that cut against its conclusion, and the court found it skipped that step on several points.
Is the NLRB now GOP-controlled?
The Board currently has a 2-1 Republican majority with a three-member quorum, and a third Republican is expected once James Macy’s pending nomination is confirmed. That third vote will substantially matter, because by tradition the Board needs a three-member majority to overturn existing precedent.
