March 23, 2026|Franchise Frontlines
March 23, 2026 | National Labor Relations Board
Executive Summary
In a supplemental decision, the National Labor Relations Board declined to expand available remedies for an employer’s refusal to bargain, reaffirming its longstanding approach under Ex-Cell-O Corp. The case arose from prior findings that Starbucks violated the National Labor Relations Act by refusing to bargain with a certified union. The General Counsel sought an expanded remedy requiring compensation for employees’ alleged lost opportunity to engage in collective bargaining. The Board rejected that request, relying on its recent decision in Longmont United Hospital, and declined to impose additional monetary remedies beyond traditional bargaining orders.
Relevant Background
The underlying dispute involved a finding that Siren Retail Corporation, doing business as Starbucks, violated Sections 8(a)(5) and (1) of the National Labor Relations Act by failing and refusing to bargain with Workers United, an affiliate of the Service Employees International Union. The Board had previously ordered Starbucks to bargain with the union upon request.
In its earlier decision, however, the Board reserved a separate issue for further consideration: whether it should depart from its longstanding precedent and adopt a new remedy requiring employers to compensate employees for the alleged loss of the opportunity to bargain at the time and in the manner contemplated by the Act.
That question was part of a broader effort by the General Counsel to expand the scope of remedies available in refusal-to-bargain cases, particularly in situations where employers challenge union certification and delay bargaining obligations.
Decision
The Board declined to adopt the proposed expanded remedy and instead reaffirmed its existing remedial framework.
Relying on its recent decision in Longmont United Hospital, the Board concluded that it would not depart from its traditional approach in cases where an employer refuses to bargain while challenging a union’s certification. Under that framework, the appropriate remedy remains an order requiring the employer to bargain with the union upon request, rather than an award of additional monetary relief tied to the alleged lost bargaining opportunity.
The Board therefore rejected the General Counsel’s request to impose a make-whole remedy compensating employees for the asserted loss of bargaining opportunities. In doing so, it effectively maintained the existing boundary between traditional bargaining remedies and broader compensatory relief.
A dissenting Board member reiterated prior views that the Board should adopt a more expansive remedial approach, including requiring employers to compensate employees for reasonably quantifiable economic harm resulting from unlawful refusals to bargain. The majority, however, declined to adopt that position at this time.
Looking Forward
Although this decision does not alter existing law, it provides a useful reminder that the scope of remedies in labor disputes remains an area of ongoing debate. For employers, including franchisors and multi-unit operators navigating union-related issues, the Board’s decision signals that, at least for now, refusal-to-bargain violations will continue to be addressed through traditional remedies rather than expanded monetary exposure tied to hypothetical bargaining outcomes.
The decision may also be viewed in the broader context of continuing efforts to revisit longstanding labor law doctrines. While the Board declined to expand remedies here, the presence of a dissent and the framing of the issue suggest that similar arguments may continue to be raised in future cases. As a result, employers may wish to monitor developments in this area, particularly where litigation strategy involves challenging union certification or delaying bargaining obligations pending judicial review.
At the same time, the decision reinforces that existing remedies—while not expanded—remain enforceable. Orders requiring bargaining and compliance with the Act continue to carry operational and legal consequences, even in the absence of additional monetary relief.
More broadly, this case illustrates how the Board is currently balancing competing considerations: maintaining established precedent while acknowledging ongoing arguments for broader remedial authority. Whether that balance shifts in future decisions may depend on the composition of the Board and the specific factual contexts presented.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Partner at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
This communication is not intended to create, and does not create, an attorney-client relationship or any other legal relationship. No statement herein constitutes legal advice, nor should it be relied upon or interpreted as such. This communication is for general informational purposes only and is not a substitute for legal counsel. Readers should not act or refrain from acting based on any information provided without seeking appropriate legal advice specific to their situation. For more information, visit www.buchalter.com.
