Fifth Circuit Vacates NLRB Order Against Starbucks Over Wrong Legal Standard for Union Subpoenas

The dispute originated at a Starbucks store in La Quinta, California, where employees launched a union organizing campaign in December 2021. Shift supervisors Andrea Hernandez and Jazmine Cardenas joined the organizing committee, and Workers United ultimately won the certification election.

In May 2022, the Union filed charges alleging that Starbucks had impermissibly restricted employees’ discussion of the Union. As part of its defense, Starbucks obtained Board-issued subpoenas directed to Cardenas and Hernandez, seeking communications with the Union and other employees regarding union activity.

The Union and the Board’s General Counsel petitioned to revoke the subpoenas. An administrative law judge granted the petitions, concluding the requests were overbroad and sought information that could reveal protected activity, but permitted Starbucks to renew narrower requests following testimony. The ALJ later dismissed the underlying unfair labor practice complaint.

The Board then commenced a second proceeding, alleging that the issuance of the subpoenas itself interfered with employees’ Section 7 rights. The ALJ found that Starbucks violated Section 8(a)(1) by seeking information protected by Section 7, applying the standard from National Telephone Directory Corp.

The Board adopted the ALJ’s decision, ordering Starbucks to cease and desist from seeking similar subpoenas and to post a remedial notice. Starbucks petitioned for review, and the Board cross-applied for enforcement.

In its opinion, the Fifth Circuit held that the Board applied the wrong legal standard. The court explained that liability under Section 8(a)(1) requires evaluating whether an employer’s conduct would “tend to be coercive” under the totality of the circumstances, citing NLRB v. Brookwood Furniture.

The court noted that the Board instead treated National Telephone, a discovery rule governing when subpoenas should be quashed, as dispositive of liability. The Fifth Circuit explained that this balancing test determines whether employees may withhold relevant information based on confidentiality interests, not whether the employer’s conduct is coercive.

The opinion emphasized that the coercion determination turns on the employer’s conduct considered in its full context, including the identity of the speaker, the setting, and surrounding events. The court found the Board did not undertake the required totality-of-the-circumstances analysis.

The Fifth Circuit vacated the Board’s order and remanded the case for further proceedings not inconsistent with its opinion. The court declined to resolve whether parties receiving Board-issued subpoenas could reasonably perceive coercion, noting the Board erred at the threshold by applying the wrong standard.