The dispute traces to a union organizing campaign that began in December 2021 at Starbucks' La Quinta, California store. Shift supervisors Andrea Hernandez and Jazmine Cardenas joined the organizing committee, and Workers United ultimately won certification as the bargaining representative. After the Union filed charges alleging unlawful conduct during the campaign, Starbucks sought Board-issued subpoenas directed to Cardenas and Hernandez as part of its defense preparation. Those subpoenas sought a broad range of materials, including communications with the Union, communications with other employees about Union activity, documents provided to the Board, and statements or affidavits relating to the allegations in the complaint.
The Board's General Counsel and the Union moved to revoke the subpoenas. An administrative law judge granted those petitions, concluding the requests were overbroad and sought information that could reveal protected activity. The Board then commenced a second unfair labor practice proceeding based on the Board's issuance of the subpoenas at Starbucks' request, and the ALJ concluded that Starbucks had violated Section 8(a)(1) by seeking information protected by Section 7 — applying the standard from National Telephone Directory Corp., 319 NLRB 420 (1995), a discovery rule governing when subpoenas should be quashed. The Board adopted that decision and ordered Starbucks to cease and desist from seeking similar subpoenas and to post a remedial notice.
The Fifth Circuit, in an opinion authored by Judge Higginson, held that the Board applied the wrong standard. The correct test for Section 8(a)(1) liability, the court held, is whether an employer's conduct would tend to be coercive when considered within the totality of circumstances surrounding the occurrence at issue — the standard drawn from NLRB v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452 (5th Cir. 1983). National Telephone, the court explained, was designed to resolve when unions or employees may withhold otherwise relevant information based on confidentiality interests, not to determine whether employer conduct rises to the level of coercion under Section 8(a)(1).
The court rejected the Board's argument that it had transformed National Telephone into a liability standard through Wright Electric, Inc., 327 NLRB 1194 (1999). The court read Wright Electric as citing National Telephone only for the narrower proposition that employees could be chilled if employers could identify who signed union authorization cards — not as establishing National Telephone as the governing liability framework. The court similarly distinguished the Ninth Circuit's decision in United Nurses Ass'ns of California v. NLRB, 871 F.3d 767 (9th Cir. 2017), noting that in that case the Board had cited National Telephone only for the well-established principle that union activity is protected from employer scrutiny, whereas here the Board treated it as supplying the controlling standard for liability.
The court also noted, without resolving, a structural tension in the case: the Board itself issued the subpoenas it later held violated the Act, and the subpoenas included instructions explaining how recipients could petition to revoke or modify them, as well as a statement that the principal use of the information sought was to assist the Board in processing unfair labor practice proceedings. The court declined to address in the first instance whether, under a proper totality-of-the-circumstances analysis, subpoenas issued by the Board and revocable on petition could reasonably be perceived as coercive and attributable to the employer.
The Fifth Circuit granted Starbucks' petition for review, denied the Board's cross-application for enforcement, vacated the Board's order, and remanded. On remand, the Board is free to reconsider the record and make any decision supported by substantial evidence.