Starbucks Goes to the Fifth Circuit — Twice in One Day

Starbucks Goes to the Fifth Circuit — Twice in One Day

And both times it ended badly for the NLRB.

On December 2, the Fifth Circuit heard back-to-back oral arguments in two Starbucks challenges to NLRB rulings. The panel was openly skeptical of the Board in both cases.

Case one involved former CEO Howard Schultz telling a barista at a 2022 “collaboration session:” “If you’re not happy at Starbucks, you can go work for another company.” The NLRB called it a coercive threat tied to the worker’s pro-union comments. The Fifth Circuit wasn’t buying that the Board considered enough context. Judge Stephen Higginson (an Obama appointee, no less) described it as a “spontaneous, frustrated” remark and pressed the Board on whether any CEO who says “if you’re unhappy, you can go” automatically commits an unfair labor practice. Judge Leslie Southwick said the Board appeared to have engaged in a “gotcha” by focusing on a single sentence.

Case two was even rougher for the Board. Starbucks issued subpoenas to two pro-union workers in a prior ULP case it ultimately won. The Board later ruled those subpoenas themselves were coercive. Judge Higginson warned the Board’s approach risks turning routine discovery into a “liability trap” — an employer asks for evidence to defend itself, loses control of the breadth question, and then gets sued again for the request.

For employers, both cases highlight a recurring theme: the Biden-era Board pushed enforcement well past what circuit courts will tolerate. The Fifth Circuit has at least four more Starbucks cases pending. If the panel rules the way the oral argument suggests, we’ll see meaningful guardrails put back on what counts as employer “speech” and what counts as an unfair labor practice tied to litigation conduct.

The lesson for everyone managing workforces during organizing activity isn’t “talk freely” — it’s “be precise.” Train your executives that their words in front of workers carry legal weight but also recognize that courts are increasingly willing to require the Board to read those words in context.

Will the Fifth Circuit’s view ultimately become the national standard, or are we headed for a circuit split that lands at the Supreme Court?