🗞️ No Remedy, No Relief: NLRB Declines to Expand Bargaining Damages Against Starbucks

On March 23, 2026, the National Labor Relations Board issued a supplemental ruling in Siren Retail Corporation d/b/a Starbucks (374 NLRB No. 66), closing out a legal question that had been pending since its original November 2022 decision. That earlier ruling found Starbucks in violation of Section 8(a)(5) and (1) of the National Labor Relations Act for refusing to bargain with Workers United, affiliated with SEIU, and ordered the company to bargain on request — a finding later enforced by the Ninth Circuit Court of Appeals in 2024.

The unresolved question set aside in 2022 was whether the Board should overrule Ex-Cell-O Corp., 185 NLRB 107 (1970), a precedent holding that employees cannot receive financial compensation for the economic harm caused by an employer's unlawful delay of bargaining. Such a remedy — known as "make-whole" relief — would have required Starbucks to compensate affected workers for wages, benefits, and other provable economic losses tied to the period of unlawful non-bargaining.

The 2026 Board, composed of two Republican members (James Murphy and Scott Mayer) and one Democratic member (David Prouty), declined to overrule Ex-Cell-O. The majority relied on its February 26, 2026 decision in Longmont United Hospital (374 NLRB No. 52), which reaffirmed existing remedial limits in test-of-certification cases — scenarios where an employer withholds bargaining specifically to seek judicial review of a union's certification. The majority offered three primary justifications: that imposing compensatory damages would unconstitutionally burden an employer's right to seek judicial review; that the potential damages would be too speculative to quantify reliably; and that such relief could improperly insert the Board into the economic dimensions of collective bargaining.

Member Prouty dissented, arguing that the absence of financial consequences creates a structural incentive for employers to delay bargaining indefinitely with little risk. He would have required Starbucks to make employees whole for any provable, reasonably quantifiable economic harm.

The ruling arrives amid a broader and ongoing labor dispute between Starbucks and Workers United. As of early 2026, no Starbucks location has ratified a first contract despite union organizing beginning more than four years ago. Following a 131-day strike that ended in early 2026, both sides announced plans to resume in-person bargaining in late March and April 2026, with the union having submitted a comprehensive contract proposal.

The Ex-Cell-O precedent itself dates to a 1970 Board decision that rejected "make-whole" relief in refusal-to-bargain cases, concluding such damages were too speculative and could amount to an improper penalty. The D.C. Circuit Court of Appeals subsequently urged the Board to reconsider that position, but the Board declined. The 2026 ruling ensures that framework remains intact — at least for now.

Key Points

• The NLRB's original 2022 bargaining order against Starbucks stands and was enforced by the Ninth Circuit in 2024.
• The Board declined to overrule Ex-Cell-O Corp. (1970), preserving the rule that employees cannot receive financial compensation for lost bargaining opportunities in test-of-certification cases.
• The 2–1 ruling was divided: Republican members Murphy and Mayer in the majority, Democratic member Prouty dissenting.
• The dissent argued that without financial consequences, employers face little deterrence from delaying bargaining through prolonged legal challenges.
• The ruling follows the Board's February 2026 Longmont United Hospital decision, which set the precedent the Starbucks supplemental decision directly applies.
• As of March 2026, Starbucks and Workers United are scheduled to resume contract bargaining after a 131-day strike.
• No Starbucks location has yet ratified a first union contract despite organizing efforts beginning over four years ago.

Sources

Primary Source Author: Members David M. Prouty, James R. Murphy, and Scott A. Mayer — National Labor Relations Board

Primary Source: Siren Retail Corporation d/b/a Starbucks, 374 NLRB No. 66 (March 23, 2026)

Primary Source Link: 374 NLRB No. 66 (PDF)

Supplemental Sources

• NLRB Declines to Overrule Ex-Cell-O: What Employers Should Know — Littler
• After Months-Long Barista Strike, Starbucks to Resume Bargaining with SBWU — Atlanta Civic Circle
• Starbucks Workers United Sends Contract Proposal to Company — CNBC
• After Nearly Three Months, NYC Starbucks Workers Quietly End Strike — The City
• The Forgotten NLRB Case That Can End Bad-Faith Bargaining — Brandon Magner/Substack
• Ex-Cell-O Corp. v. NLRB, 449 F.2d 1058 (D.C. Cir. 1971) — Justia
• GC Abruzzo Asked the NLRB to Overturn Ex-Cell-O — OnLabor