The dispute arose after shift supervisors joined Workers United and employees at the store voted to certify the union as their bargaining representative. The Union then filed charges alleging Starbucks restricted employee discussion of the union.
In defending against those charges, Starbucks obtained Board-issued subpoenas directed to the supervisory union members seeking testimony and document production. The Board’s General Counsel and the Union petitioned to revoke the subpoenas, arguing the requests implicated rights protected by Section 7 of the National Labor Relations Act.
An administrative law judge granted the petitions to revoke on overbreadth grounds and later dismissed the underlying unfair labor practice complaint against Starbucks after crediting other witnesses. The Board then opened a second proceeding, alleging that Starbucks’ act of obtaining the subpoenas itself violated Section 8(a)(1).
The Board adopted the ALJ’s conclusion that the subpoenas violated the Act, relying on a discovery balancing test drawn from National Telephone Directory Corp. rather than the totality-of-the-circumstances analysis the Fifth Circuit said was required.
Circuit Judge Stephen Higginson, writing for the panel, held that the National Telephone test is a discovery rule governing when information may be withheld, not a liability standard for assessing whether employer conduct is coercive. Section 8(a)(1) liability, the court said, depends on whether conduct would "tend to be coercive" within the totality of the circumstances.
The panel noted that the Board conceded the correct legal standard on appeal but relied on the discovery rule to establish liability. The court vacated the Board’s order and remanded the case for further proceedings consistent with the opinion.