Starbucks v. NLRB

Case: 24-60651 Document: 137-1 Page: 1 Date Filed: 06/23/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 24-60651 June 23, 2026

____________ Lyle W. Cayce

Clerk

Starbucks Corporation,

Petitioner/Cross-Respondent,

versus

National Labor Relations Board,

Respondent/Cross-Petitioner.

______________________________

Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board

Agency Nos. 31-CA-299464,

31-CA-305504, 31-RC-296066

______________________________

Before Smith, Wiener, and Higginson, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Starbucks stores underwent a flurry of union organizing activity in

2022. This case arises from one such attempt where Starbucks employees

sought to unionize in Sylmar, California. As the National Labor Relations

Board (“NLRB” or “Board”) tells it, what ensued was a campaign of coer-

cive threats, interrogation, and unlawful firing. Because the NLRB’s findings

are a mix of supported and unsupported conclusions, review and enforce-

ment are granted in part and denied in part.

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I.

The Board found that Starbucks, through managers Tiffany Fuller and

Jennifer Tayarah, made coercive threats against Edison Sosa, David Ramirez,

Barbara Pichardo, and Jason Untaran, all employees at the store at issue. The

Board also found that Starbucks had coercively interrogated and unlawfully

discharged Untaran.

A. Sosa

Fuller met with Sosa in June or July 2022; Sosa asked about a letter

Starbucks had posted. The letter stated that, though it announced a plan to

increase pay and benefits in August, Starbucks was not permitted to “unilat-

erally change terms and conditions of employment in unionized stores or

stores undergoing organizing activity.” To that end, it limited the pay and

benefit increases to stores where there had been no union activity before the

first letter was sent.

Sosa asked Fuller what it meant to unionize. Fuller stated that “it

would not be up to her, that whatever issues or questions the employees had

would have to be up to the Union, so that she would not be able to do anything

for them.” Sosa brought up the letter, and Fuller stated that the benefits

“would be put on pause” because the store was going through the unioniza-

tion process. According to Sosa, Fuller also stated that “it would be up to

the unionized representative to argue whether or not we would get those

[benefits].” Sosa also stated that Fuller claimed that the new benefits

“would be either added on, or not, based on if the Union representative

would argue for that.”

B. Ramirez

Fuller spoke to Ramirez, the employee who had requested an election

on union representation, and stated that Fuller was opposed to unionizing

because of the “risks that she believed we [partners] would lose benefits.”

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Specifically, she said she was concerned about losing access to free tuition to

Arizona State University and health benefits through union negotiations.

C. Pichardo

Pichardo had a conversation with Fuller and Tayarah in which

Pichardo asked them about their views on unionization. Before that conver-

sation, Pichardo had discussed unionization with Fuller on four occasions. In

the meeting with Tayarah and Fuller, Tayarah told Pichardo that unionizing

the store “wouldn’t change the world” and that “the Union wouldn’t

change better working conditions for [Pichardo].” Tayarah then stated that

she understood why In-N-Out should unionize but not why Starbucks would.

When Pichardo asked for better wages and working conditions, Tayarah told

her “there are other jobs that do offer better pay.”

D. Untaran

1.

Fuller had a one-on-one meeting with Untaran on June 22 in the back

of the house, where she asked him “how [he] felt about unionization.” Fuller

did not know about Untaran’s views of the union at the time. Untaran re-

sponded by stating that he felt unionization would not be necessary if employ-

ees weren’t overwhelmed with work and had more support. Fuller replied

that voting for the union would not guarantee extra hours or more employees.

In the same conversation, Fuller stated that access to free tuition, health

benefits, and a pay bump were “going to be withheld during the time of

negotiations.”

2.

Starbucks and the NLRB have two distinctive renditions of the facts

with regard to Untaran’s discharge.

Starbucks claims it fired Untaran because of his poor behavior. He

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arrived late to work and vaped in the store (violating company policy), claim-

ing “nobody was . . . actually watching so it didn’t matter.” Team members

also complained that Untaran neglected or actively resisted doing typical

work such as cleaning, restocking, and other closing tasks. After multiple

warnings—several verbal and one written—Starbucks terminated him on

July 1, 2022.

The Board, on the other hand, asserts that Starbucks unlawfully dis-

charged Untaran based on anti-union animus. The Board recounts the

employees’ months-long efforts to unionize starting in January 2022. Once

the union filed its petition to represent the store’s employees, Starbucks’s

managers began to speak individually with employees and seemingly to dis-

courage unionization. On June 22, Fuller spoke to Untaran specifically about

the petition—who, up to that point, had kept his union activity quiet. On

June 28, Untaran joined employees at a coordinated union meeting at the

store with Congressman Tony Cardenas. Four days later, Starbucks fired

Untaran. The Board also claims that Starbucks treated other employees

differently from Untaran, giving them more grace and warnings before

termination.

E. Procedural History

After the July election, a majority of employees voted against union

representation. The union then filed objections on account of Untaran’s

termination and because of various statements by managers. The case went

before an administrative law judge (“ALJ”), who ruled against Starbucks on

four charges.

First, the ALJ found Starbucks violated the National Labor Relations

Act (“NLRA”) Section 8(a)(1) twice for statements by employers that

unionization “wouldn’t change the world” and that “there are other jobs

that do offer better pay.” Second, the ALJ found Fuller’s statements rose to

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the level of an unlawful threat in violation of Section 8(a)(1) when the man-

ager told an employee that the changes in benefits would be put on hold dur-

ing the election. Third, the ALJ found anti-union animus motivated (at least

in part) Untaran’s termination, violating Section 8(a)(1) and (3). This ani-

mus was “inferred” by the timing of Untaran’s firing—just “four days after

he met with the Congressman” and by Starbuck’s treatment of allegedly sim-

ilarly situated employees. Finally, the ALJ found Starbucks fell short of its

burden to show it would have terminated Untaran absent the union activity.

The NLRB adopted some of the ALJ’s conclusions and reversed

others. The Board agreed that Starbucks violated Section 8(a)(1) when Ful-

ler and Tayarah made comments that the benefits would be “on pause” dur-

ing the election; the union “would not bring better working conditions”; and

that other jobs would offer better pay. The Board also found Starbucks vio-

lated Section 8(a)(1) and (3) by firing Untaran for his union activity. The

Board reversed the ALJ in part, further finding that Starbucks violated Sec-

tion 8(a)(1) based on separate employer statements and the June 22 “coer-

cive interrogation” of Untaran regarding his union support. Finally, the

Board adopted the ALJ’s remedies: reinstatement of Untaran, backpay, com-

pensatory damages, and a new election. This petition for review and cross-

petition for enforcement followed.

II.

Starbucks asks this court to deny enforcement of the Board’s entire

order. In the alternative, it requests relief from the remedy of compensatory

damages and a new election. Starbucks urges that the order of compensation

violates the NLRA and the Constitution (Article III and Seventh Amend-

ment). Starbucks also asks us to vacate the new-election remedy because of

the allegedly “erroneous conclusion that Starbucks wrongfully discharged

Untaran” and because a supermajority of employees voted against

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unionization.

The judiciary has a limited role in reviewing the NLRB’s decisions.

We “affirm the Board’s conclusions ‘if they have a reasonable basis in the

law and are not inconsistent with the [NLRA].’” Tesla, Inc. v. NLRB,

86 F.4th 640, 647 (2023) (quoting In-N-Out Burger, Inc. v. NLRB, 894 F.3d

707, 714 (5th Cir. 2018) (alteration in original)).

The Board’s factual findings are conclusive if they are “supported by

substantial evidence on the record considered as a whole.” 29 U.S.C.

§ 160(e). We ask whether “a reasonable person could have found what the

ALJ found, even if this court may have reached a different conclusion.”

Renew Home Health v. NLRB, 95 F.4th 231, 239 (5th Cir. 2024). “The sub-

stantiality of evidence must take into account whatever in the record fairly

detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951). Therefore, the Board must consider “contradictory evidence or

evidence from which conflicting inferences could be drawn.” Id. at 487.

A. Section 8(a)(1) Coercion

The merits of the Board’s conclusions regarding coercive threats are

mixed. The conclusion that Untaran was coercively interrogated is sup-

ported by substantial evidence.

“An unlawful threat is established under Section 8(a)(1), if under the

totality of the circumstances, an employee could reasonably conclude that the

employer is threatening economic reprisals if the employee supports the

union.” NLRB v. Delta Gas., Inc., 840 F.2d 309, 311 (5th Cir. 1988). An

employer’s predictions about the precise effect unionization will have on the

company must “be carefully phrased on the basis of objective fact to convey

an employer’s belief as to demonstrably probable consequences beyond his

control or to convey a management decision already arrived at.” NLRB v.

Gissel Packing Co., 395 U.S. 575, 618 (1969).

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1. Coercive Threats Against Sosa

The NLRB maintains that Fuller’s conversation with Sosa contained

a coercive threat. The Board cites NLRB v. Dothan Eagle, Inc., 434 F.2d 93,

98 (5th Cir. 1970), for the proposition that “whenever the employer by prom-

ises or by course of conduct has made a particular benefit part of the estab-

lished wage or compensation system, then [it] is not at liberty unilaterally to

change this benefit either for better or worse during the union campaign or

during the period of collective bargaining.” Id. The Board further asserts

that Starbucks alludes to but misunderstands the exception to that rule that

allows employers to postpone expected wage or benefit increases to avoid the

appearance of influencing the election’s outcome.

Starbucks responds by urging that the NLRB misapprehends the

issue. Starbucks states that neither the ALJ nor the Board points to evidence

that the pay increase falls into the category of a regularly scheduled wage

increase, dooming the Board’s justification. Furthermore, Starbucks claims

that the NLRB’s approach, when considered with other NLRB precedents,

puts an employer into an impossible bind, where pausing benefits means that

they threatened employees, and, on the other hand, extending promised ben-

efits results in a holding that the employer unlawfully interfered with the

election.

The Board’s conclusion that Fuller threatened Sosa is not supported

by substantial evidence. As Starbucks rightly states, neither the Board nor

the ALJ points to any authority that states that an announced, non-routine,

and unimplemented benefit comes within the scope of an established wage or

compensation system, nor does anything in the record support such a finding.

The ALJ’s asserted reasons are particularly problematic because the ALJ

makes reference only to NLRB cases that deal with routine and regularly

scheduled pay raises.

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The quoted language in Dothan Eagle reaffirms that point: The rule

applies only to the “established wage or compensation system.” 434 F.2d

at 98 (emphasis added). In justifying the rule, the court in Dothan Eagle

emphasized that the wage-increase policy in question “was widely known

and had been in effect for a considerable period of time. It had thus become

part of the established scheme of compensation and could not be deviated

from for purposes of influencing the vote.” Id. at 99. Read in its proper

context, Dothan Eagle makes it clear that the application of its rule should be

to wage systems that are already in effect and that employees can justifiably

rely on, something which both the Board and the ALJ failed to establish and

the record does not support.

Nothing in the record ties the promised benefits, provided for in the

Starbucks letter and subsequent clarification, to an already established sys-

tem of compensation rather than a bespoke provision of increased benefits.

The “simple but fundamental rule of administrative law that reviewing

courts must judge the propriety of [agency] action solely by the grounds

invoked by the agency” means that the Board’s conclusion cannot stand. 1

2. Coercive Threats Against Ramirez and Untaran

The NLRB asserts that its decision that Ramirez and Untaran were

coercively threatened is supported by substantial evidence. It states that Ful-

ler’s message told the employees they would lose certain benefits through

negotiation. In particular, it claims that Fuller’s conversation with Ramirez

involved an employer’s making a prediction as to the precise effects it be-

lieves unionization will have. It cites Gissel for the proposition that any such

predictions must “be carefully phrased on the basis of objective fact to con-

_____________________

1

Calcutt v. FDIC, 598 U.S. 623, 624 (2023) (citation modified); see also Tesla, Inc.

v. NLRB, 120 F.4th 433, 439 n.3 (5th Cir. 2024) (applying Calcutt to the NLRB).

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vey [the] employer’s belief as to demonstrably probable consequences

beyond [its] control.” 395 U.S. at 618. The NLRB concludes by claiming

that Fuller suggested that Starbucks would adopt a punitive bargaining

strategy, as distinguished from the permissible act of emphasizing the give-

and-take of collective action.

As to Untaran, the NLRB asserts that the Supreme Court has long

held that a unilateral refusal to maintain existing wage and benefit policies

during the collective bargaining period is unlawful. It further contends that

both statements constitute violations, even if they were framed as possible

outcomes, because employees perceive a threat if there is any implication that

an employer may retaliate.

For its part, Starbucks contends that Fuller’s statements to Ramirez

were not coercive because the Board, in reversing the ALJ, took statements

from management that emphatically assert a risk and twisted them into

claims of absolute certainty. Starbucks further emphasizes that Fuller stated

that these benefits could be lost “through negotiations” and that this state-

ment indicates that Fuller was attempting to explain nuances, not threatening

reprisal, meaning no reasonable factfinder could conclude that Fuller threat-

ened reprisal against Ramirez.

Starbucks further contends that Untaran gave two conflicting ac-

counts of Fuller’s statements about benefits, stating both that certain benefits

“were possibly going to be withheld . . . during the negotiations for contracts

with Starbucks and the Union” and that “all of that was going to be withheld

during the time of negotiations.” Starbucks continues by claiming that all

that Fuller communicated was that Starbucks was permitted to extend bene-

fits to nonunionized employees while withholding them from unionizing

employees during bargaining.

Starbucks concludes by asserting that the Board erred by failing to

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consider the fact that Fuller’s statements did not chill Untaran’s union activ-

ity. Starbucks acknowledges that actual coercion is unnecessary, but it still

asserts that an employee’s subjective response can help determine whether a

reasonable employee would tend to be coerced.

a. Ramirez

The Board’s decision on Ramirez is supported by substantial evidence

because Fuller’s statement left sufficient ambiguity as to Starbucks’s

position. As the Board ably pointed out, it is irrelevant whether Fuller used

“could” versus “would” when she talked to Ramirez. Instead, if, under the

totality of the circumstances, a reasonable employee could have conceived of

Fuller’s statement as a coercive threat then there has been a violation.

Although Fuller’s statement could be plausibly understood as highlighting

the give-and-take of negotiation, her statement that the benefits could be lost

“through negotiation,” paired with reference to benefits that were wholly in

Starbucks’s control could be reasonably interpreted as a suggestion that

Starbucks was going to take a punitive bargaining position by threatening

those benefits. Under the substantial evidence standard, that is sufficient to

uphold the Board’s decision.

b. Untaran

The NLRB’s finding as to Untaran is supported by substantial evi-

dence. Fuller’s statements to Untaran can be understood by a reasonable

employee, aware of all of the facts and law, as a coercive threat because the

statement, even if it was probabilistic, still proposed unlawful conduct.

As previously stated, Dothan Eagle stands for the proposition that it is

unlawful to fail to maintain existing wage and benefit policies during a union

election period. The tuition and health benefits were part of existing wage

and benefit policies, as the programs were already established and the

benefits conferred upon Starbucks employees. Therefore, Starbucks would

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have had no right to withhold those benefits during negotiations. If Fuller

was referring exclusively to the new increases to those programs promised in

the letter, Untaran’s credited testimony does not make that clear.

Starbucks does little to respond, claiming only that Fuller “merely

explained that Starbucks was under no obligation to extend an unimple-

mented pay bump during a union election.” Starbucks’s failure to respond

to Fuller’s statements about tuition and health benefits is telling. Even

assuming arguendo that we would take Untaran’s subjective impression into

account, that cannot overcome the deference owed under the substantial-

evidence standard, especially given that Fuller’s statement plausibly com-

municated that Starbucks would violate the law in response to union activity.

3. Coercive Threats Against Pichardo

The NLRB asserts that there is substantial evidence to support the

Board’s finding that Tayarah’s statements to Pichardo constituted coercive

threats. The ALJ stated that Tayarah’s statement that the union wouldn’t

improve working conditions was the same as stating that union representa-

tion would be futile and that her statement that there were other jobs implied

that support for the union was incompatible with continued employment.

The NLRB highlights that a warning of futility of organization constitutes a

violation of Section 8(a)(1). It maintains that Tayarah’s statement signified

that Starbucks would refuse to provide the increased support that Pichardo

sought.

In response, Starbucks points to Brown & Root, Inc. v. NLRB, 333 F.3d

628, 634 (5th Cir. 2003), for the proposition that a statement of futility vio-

lates Section 8(a)(1) only if it is accompanied by a threat that the employer

will do something to make union support futile. Starbucks reasons that

Tayarah’s statements contained no such independent threat and cannot

qualify as a violation under Section 8(a)(1). Starbucks continues by claiming

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that Tayarah’s acknowledgement that other jobs pay better was not a threat

and that the Board’s reading of its caselaw is a per se rule that is counter to

this court’s precedent, which focuses on contextual analysis, not a “magic-

words” rule. Starbucks concludes by arguing that the cases cited by the

NLRB all involved direct invitations to quit or statements threatening dis-

charge, neither of which Tayarah did.

The Board’s decision on futility is not supported by substantial evi-

dence, but its decision on Tayarah’s other statement is.

As for the futility argument, Starbucks is correct that Brown & Root

controls. Brown & Root stated that “this Court has only found comments to

be unlawful statements about futility when accompanied by a threat or impli-

cation that the employer will take some action to render union support

futile.” 333 F.3d at 634. That observation determines the outcome here.

Tayarah’s assertion that the union wouldn’t improve working condi-

tions is a statement of futility, but there is nothing that indicates that it was

accompanied by a threat that Starbucks itself would do something to render

support futile. Siding with Pichardo on Tayarah’s other statement does not

change this analysis because a reasonable person could find only that the

threat was not a threat to make employees’ “selection of a bargaining repre-

sentative . . . futile” so much as it was a threat of economic reprisal against

Pichardo for her union support. A reasonable person could not conclude

what the Board announced, so the ruling lacks substantial evidence.

Regarding Tayarah’s statement that there were other jobs that offered

better pay, there is substantial evidence to support the Board’s conclusion. 2

_____________________

2

That being said, the NLRB seems to want to have it both ways, relying on Pichar-

do’s subjective understanding of Tayarah’s statements while disclaiming our ability to do

so in the case of Untaran. This court has not acknowledged the relevance of an employee’s

subjective understanding to a Section 8(a)(1) violation, and there is no reason to do so in

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Although the rule from the Board’s caselaw that finds a Section 8(a)(1) vio-

lation anytime an employer with the power to fire responds to union support

with an invitation to quit sweeps too broadly, such circumstances can often

withstand substantial-evidence review absent countervailing facts. Pichardo

had four previous conversations concerning the union with Fuller before the

meeting with Fuller and Tayarah, two of which involved criticism of unioni-

zation. With those conversations as background, Tayarah’s negativity

toward unionization, and the fact that the statement in question was directly

in response to a request for better wages and working conditions, a reasonable

employee could conclude that Tayarah was threatening economic reprisal for

union support, namely threatening to terminate Pichardo’s employment.

4. Coercive Interrogation Against Untaran

“To determine whether an interaction between an employer and

employee constitutes a coercive interrogation, we examine ‘the totality of the

circumstances in which the interrogation occurred. The relevant inquiry is

whether the questioning tends to be coercive, not whether the employees are

in fact coerced.” Apple, 143 F.4th at 297 (citation modified). We consider

eight factors when analyzing whether an interrogation was coercive:

(1) the background, or history of employer hostility and dis-

crimination; (2) the nature of the information the questioner

seeks; (3) the rank of the questioner in the company hierarchy;

(4) the place and manner of the interrogation; (5) the truthful-

ness of the employee’s reply; (6) whether the employer had a

valid purpose in obtaining the information sought about the

union; (7) whether a valid purpose, if existent, was communi-

cated to the employee; and (8) whether the employer assured

the employee that no reprisals would be forthcoming should he

_____________________

this case. See also Apple, 143 F.4th at 299 n.26.

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or she support the union.

Renew Home Health, 95 F.4th at 243 (citation modified). These factors are an

analytical guide, and no single factor is determinative. Id. at 244. Coercion

can be found even where most of the factors favor the employer. Apple,

143 F.4th at 298.

The ALJ originally held that Fuller’s questioning of Untaran was not

a coercive interrogation because Untaran answered truthfully, Fuller was a

first-line supervisor, the conversation occurred in a public area, there was no

history of employer discrimination at this particular store, and Fuller did not

follow up with any coercive statements. The Board reversed, finding that

(1) the conversation took place in the midst of Starbucks’s hostility toward

employees, (2) Fuller made unlawful threats, (3) Fuller sought information

“about core Section 7 rights,” (4) Fuller was Untaran’s direct supervisor,

(5) the back of house was an “especially coercive” place to interrogate con-

sidering that’s where disciplinary meetings and Untaran’s firing occurred,

(6) Untaran did not reply to Fuller’s question completely candidly, and

(7) Fuller did not provide Untaran with any assurances that his answers

would not be used against him. On appeal, the NLRB largely reiterates those

points, adding a series of examples from both inside and outside this circuit

to bolster its claims.

In comparison, Starbucks, relying on its claims from earlier, contends

that Fuller made no statements threatening economic reprisal. Starbucks fur-

ther posits that the information that Fuller sought was innocuous and gen-

eral, given that Fuller did not probe Untaran’s voting intentions, follow up

on Untaran’s answer, or otherwise continue the purported interrogation.

Starbucks continues by claiming that the Board’s point that Fuller was a dir-

ect supervisor improperly skews that factor against the employer in every

case because supervisors are involved in nearly every case of alleged interro-

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gation. Starbucks moreover asserts that the Board identified no evidence that

the back-of-house was an area that the employees would be intimidated by

and claims that the Board ignored the casual nature of the conversation. It

closes by pointing out that the ALJ found that Untaran answered the question

truthfully, that Fuller had a proper purpose of exercising Starbucks’ right to

discuss unionization with employees, and noting that a failure to disclaim

reprisal alone cannot support a section 8(a)(1) violation.

The Board’s decision is supported by substantial evidence. First, the

NLRB is wrong to insist that asking about union support is always moderately

coercive. As this court stated in Apple, the Board’s “claim that inquiries

about wages or union sentiment are quintessential example[s] of coercive

interrogation sweeps too broadly.” Apple, 143 F.4th at 299 (citation modi-

fied). As with the employer in Apple, Starbucks did not commit itself to a

series of interrogations of a variety of employees; instead, this was a one-off

conversation. Unlike in Apple, however, the supervisor here had plausibly

displayed anti-union sentiment and proceeded to make a statement that could

be perceived as an unlawful threat of withholding benefits in the same con-

versation, according to Untaran. 3

Second, because Fuller did, in fact, make a statement that could be

perceived as a threat by a reasonable employee, there is some support for a

claim of hostility in the workplace. But one violation of the NLRA does not

lend the same credence or support for a coercive interrogation when com-

_____________________

3

There is arguably some daylight between finding a violation of Section 8(a)(1)

and evidence of anti-union sentiment. Because a Section 8(a)(1) violation is taken from the

vantage point of a reasonable employee, it need not say anything about the employer’s

actual sentiment toward a union. See Renew Home Health, 95 F.4th at 242 (“The analysis

is framed from the perspective of the employee and is not contingent on either the motiva-

tion behind the remark or its actual effect.” (citation modified)).

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pared to the example provided by the NLRB. 4 Although Fuller had many

conversations with employees about unionization and frequently expressed

her skepticism about unionization, those actions, standing alone, are far

weaker evidence of hostility.

Third, the rank of the questioner favors the NLRB’s interpretation.

As Starbucks itself acknowledges, this consideration matters where, among

other things, the supervisor paired his or her questions “with threats of

reprisal.” Because we found against Starbucks on the issue of coercive

threats with regard to Untaran, this issue is relevant and favors the NLRB’s

interpretation, as Fuller was the highest-ranking individual at the store.

Fourth, the location favors Starbucks: The NLRB’s description of the

back-of-house is belied by the evidence, especially as to Untaran. The back

of the house was where Untaran broke Starbucks rules and vaped, and the

ALJ described it as a “public place,” a point the Board does not reject. 5 The

Board’s characterization of the back of the house as an intimidating is based

on a claim that that is where Fuller holds disciplinary meetings, but it does

not engage with contrary evidence that indicates that Untaran felt comforta-

ble in the back of the house, nor does the Board point to any evidence that

suggests that, at the time of the conversation, Untaran, in particular, would

have been intimidated by the location.

Fifth, Starbuck’s defense of Fuller’s purpose falls apart when the

employer’s intention is unclear, as is the case here. In Delco-Remy Division,

_____________________

4

See, e.g., NLRB v. Birdsall, 487 F.2d 288, 291 (5th Cir. 1973) (“In view of the

totality of the circumstances surrounding the systematic interrogations of employees regard-

ing their union sympathies the Board could properly conclude that the employer vio-

lated § 8(a)(1) of the Act.”).

5

See Apple, 143 F.4th at 298 (finding no coercion when, amongst other points,

interrogation occurred in a public place.).

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General Motors Corp. v. NLRB, 596 F.2d 1295, 1311 (5th Cir. 1979), we said

that no statement of purpose or assurance that there would be no reprisal was

required “when it is apparent from the circumstances . . . that the interro-

gation is for an innocent purpose and that the questions do not otherwise

convey a veiled threat of reprisal.” Id.

The situation described in Delco-Remy is different from the one in

which Untaran found himself, given that Fuller’s question about Union sup-

port was bracketed by a statement acknowledging the filing of a unionization

petition and the importance of voting on that petition, on the front end, and

what could be reasonably construed as a threat of economic reprisal via

withheld benefits, on the back end. Under such circumstances, the failure to

reassure the employee of an innocent purpose or a lack of retaliation is rele-

vant and favors the NLRB’s interpretation.

Sixth, the truthfulness of Untaran’s reply cuts in favor of Starbucks,

as he was not particularly evasive in his answer. Though the Board accurately

points out that Untaran’s answer is not “completely candid,” insofar as he

does not answer the question “how do you feel about unionization” directly

and stridently, the fact that his answer still provided Fuller with some indi-

cation that he supports the union cuts against a finding of a coercive interro-

gation, though it is not dispositive on that point. 6

There is substantial evidence to support the Board’s conclusion.

Though there are factors that cast doubt on its analysis, those factors are not

so detrimental to render it impossible for “a reasonable person [to find] what

_____________________

6

NLRB v. Brookshire Grocery Co., 919 F.2d 359, 367–68 (5th Cir. 1990) (“While it

is true that Brookshire was conducting the interviews on its own premises and that its

employees answered the questions truthfully, it does appear that there was substantial evi-

dence to support the Board’s finding that Brookshire had coercively interrogated its

employees . . . .”).

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No. 24-60651

the ALJ found.” Renew Home Health, 95 F.4th at 239.

B. Untaran’s Termination for Union Activity

The Board erred in concluding that Starbucks terminated Untaran’s

employment for union activity. Starbucks asserts that the ALJ’s conclusion

regarding animus and the ALJ’s finding that Starbucks wouldn’t have ter-

minated Untaran without animus lack substantial evidence. Starbucks is cor-

rect that the ALJ’s animus determination lacks substantial evidence. 7

To succeed in proving that an employee was unlawfully terminated

under Section 8(a)(1) “the General Counsel must show, by a preponderance

of the evidence, that [1] the employee was engaging in protected activity,

[2] the employer had knowledge of the activity, [3] adverse action was taken

against the employee, and [4] the activity was a motivating factor in the deci-

sion to discharge the employee.” NLRB v. Arkema, Inc., 710 F.3d 308, 320–

21 (5th Cir. 2013). The company may then prove an affirmative defense that

it would have fired the employee regardless of the protected activity. Cordua

Rests., Inc. v. NLRB, 985 F.3d 415, 423–24 (5th Cir. 2021).

“For an adverse employment decision to constitute unlawful discrim-

ination under section 8(a)(3), anti-union animus must be shown to have been

a motivating factor in the employer’s decision.” Tellepsen Pipeline Servs. Co.

v. NLRB, 320 F.3d 554, 565 (5th Cir. 2003). Though, in the Fifth Circuit, a

“section 8(a)(1) violation does not require a showing of anti-union animus”

because the ALJ advances that theory only with respect to the prima facie case

and the Board does not explicitly modify that, we are bound to decide this

part of the case on that basis. 8

_____________________

7

We decline to reach the subsidiary issue of whether the ALJ erred in finding that

Starbucks wouldn’t have terminated Untaran absent anti-union animus.

8

Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 463 (5th Cir. 2001); see generally id.

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The ALJ focused exclusively on the timing of the discharge and the

treatment of comparators when determining that anti-union animus existed

for purposes of the prima facie case. The ALJ’s analysis cannot support a

finding against Starbucks because his comparator analysis is faulty and with-

out it, the ALJ’s conclusion relies exclusively on timing in contravention of

our decision in Arkema. “[A]n inference of union animus based upon dispar-

ate treatment can be made if the only difference between two differently

treated employees is the illegitimate criteria at issue (i.e., union activity).”

Asarco, Inc. v. NLRB, 86 F.3d 1401, 1408 (5th Cir. 1996) (citation modified).

The comparators picked out by the ALJ do not fit that criterion.

The ALJ claims that AP received “two consecutive final warnings,

then two consecutive written warnings” before being fired, contradicting

Tayarah’s and Fuller’s claim that termination was required after a final writ-

ten warning. That was wrong, because AP was terminated after one final

warning, something that the NLRB now acknowledges. Additionally, the

actual conduct in question differed as well. At the bare minimum, it is undis-

puted that Untaran vaped in the back of the store on two separate occasions,

was tardy twice, and had to receive verbal coaching on June 13. In compari-

son, AP had several tardies, two dress code violations, and an argument with

a coworker before termination. The tardies are obviously similar in kind, but

whether two dress code violations and an argument with another employee

equal two violations of the tobacco policy and a verbal coaching is far from

obvious; the ALJ did nothing to explain away those differences.

Those differences make AP a poor fit as a comparator because the

only difference between her and Untaran is not the illegitimate criterion of

_____________________

(collapsing a section 8(a)(1) and 8(a)(3) analysis); Calcutt, 598 U.S. at, 624 (“It is ‘a simple

but fundamental rule of administrative law’ that reviewing courts ‘must judge the propriety

of [agency] action solely by the grounds invoked by the agency.’”).

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No. 24-60651

union activity. Additionally, the use of AP as a comparator undermines the

notion that the timing of Untaran’s firing was suspect, as the time between

firing and those infractions cited in the notice of separation was two to three

weeks, a timeframe similar to Untaran’s firing.

As to NQ, she received a written warning for insulting her coworkers

multiple times on the same day; she had previously been coached with

relation to the mobile devices policy. Unlike both AP and Untaran, NQ did

not engage in an extensive pattern of poor behavior; instead, the primary

violation occurred on a single day. Id. Consequently, there are differences

between NQ and Untaran other than the illegitimate criterion of union activ-

ity, making the ALJ’s reliance on NQ inappropriate. All of those facts are

sufficient to justify discounting the ALJ’s comparator analysis. 9

The Board’s defense of the disparate-treatment justification is un-

availing for reasons already discussed, and its insistence on the importance of

timing fails because the ALJ’s comparator analysis fails. As we stated in

Arkema, 710 F.3d at 323, “timing alone . . . is not substantial evidence.”

Because the record does not support the use of either comparator, the only

portion of the analysis that remains as a basis for concluding that the ALJ’s

finding was supported by substantial evidence is the timing of Untaran’s

discharge. Because such a finding is insufficient without more, the ALJ’s

decision regarding Untaran’s termination cannot stand.

Lastly, footnote five of the Board’s opinion cannot save its decision.

Footnote five states, in response to a request by the General Counsel to over-

rule a case, that because “there is ample direct evidence of respondent’s ani-

_____________________

9

See Dish Network Corp. v. NLRB, 953 F.3d 370, 377 (5th Cir. 2020), as revised

(Mar. 24, 2020) (“Even if that conclusion could be supported by the portions of the record

cited by the Board, we held the Board lacked substantial evidence merely because it failed

to grapple with countervailing portions of the record.”).

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No. 24-60651

mus as to employee Untaran’s union activity—there is no need to resort to a

pretext analysis in determining whether animus is present.” That conclusion

is bereft of analysis of what the direct evidence of anti-union animus is or how

that direct evidence demonstrates anti-union animus; it still provides no evi-

dence that either the Board or the ALJ relied on Section 8(a)(1) in inferring

animus; and lastly it is actually focused on a pretext analysis, something that

the ALJ scarcely engaged with. See Electrolux Home Prods., Inc., 368 NLRB

No. 34 (2019). The ALJ’s determination was not supported by substantial

evidence, so enforcement is denied. 10

III. Union Election Remedy

The NLRB avers that we do not have jurisdiction to review its order

for a second election. It is correct.

“[T]he NLRA provides only for judicial review of ‘final orders’ of

the Board in unfair labor practice cases. Though consolidated for hearing

with an unfair labor practice proceeding, the Board’s decision in the repre-

sentation proceeding does not constitute a final order.” NLRB v. Great W.

Coca-Cola Bottling Co., 740 F.2d 398, 405 (5th Cir. 1984). Great Western

Coca-Cola Bottling Company controls the outcome here, given that No. 31-

RC-296066 was a representation action that was consolidated. That is why

the Board severed the case and remanded it for a second election. Star-

bucks’s reply to this point is that we should “reexamine” these conclusions,

but such a reexamination is proper only before the en banc court. Although

we are without jurisdiction to consider this issue, Starbucks will be able to

seek review if a future order of the NLRB compels it to bargain after the

_____________________

10

Because enforcement is denied as to Untaran’s wrongful-discharge claim, we

need not address the issue of Thryv remedies.

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No. 24-60651

second election. 11

Conclusion

We GRANT the NLRB’s request for enforcement as to one of the

claims of coercive threats against Pichardo, the claim of a coercive threat

against Untaran, and Untaran’s unlawful interrogation claim because they

are supported by substantial evidence. We DISMISS the appeal of the

NLRB’s order of a second election for want of jurisdiction and DENY

enforcement of the NLRB’s order as to Untaran’s unlawful discharge claim

and Sosa’s and Ramirez’s coercive threat claims as not supported by substan-

tial evidence.

_____________________

11

Boire v. Greyhound Corp., 376 U.S. 473, 477 (1964). (“Such decisions, rather, are

normally reviewable only where the dispute concerning the correctness of the certification

eventuates in a finding by the Board that an unfair labor practice has been committed as,

for example, where an employer refuses to bargain with a certified representative on the

ground that the election was held in an inappropriate bargaining unit.”).

22