Starbucks wins as court vacates NLRB unfair labor practice ruling

As part of that preparation, the company obtained subpoenas through the Board’s standard process – a routine mechanism available to parties in NLRB proceedings. The subpoenas, directed at Hernandez and Cardenas, sought a wide range of materials: communications with the union, messages with coworkers about organizing, documents shared with the Board, and any statements tied to the complaint. An administrative law judge found the requests overbroad and revoked them, though Starbucks was permitted to renew narrower requests following testimony. 

That might have been the end of it. Instead, the Board opened a second proceeding, this time arguing that the act of obtaining those subpoenas was itself an unfair labor practice – that by seeking information about employees’ union activities, Starbucks had interfered with their protected rights under the National Labor Relations Act. 

The Board found a violation, applying a standard from a 1995 precedent called National Telephone Directory Corp. That test weighs employees’ interest in keeping their protected activities confidential against the employer’s need for the information. It was designed as a discovery tool – a way to decide when subpoenas should be quashed – not as a test for determining whether an employer broke the law. 

That distinction is exactly where the Fifth Circuit drew the line. The court held that the proper test for unfair labor practice liability asks whether an employer’s conduct would tend to be coercive when viewed under the totality of the circumstances. That means examining the full picture: the identity of the speaker, the setting, and the surrounding events. The Board skipped that analysis entirely. 

The court also noted several factors the Board never weighed. The subpoenas came with instructions telling recipients they could petition to have them revoked or modified. They stated that the principal use of the information sought was to assist the Board in processing unfair labor practice proceedings. And the Board itself had issued the subpoenas through its own ministerial process – then found the employer liable for obtaining them.