“[W]e hold that it is an enjoinable unfair labor practice to prosecute a baseless lawsuit with the intent of retaliating against an employee for the exercise of rights protected by § 7 of the NLRA.”
How later courts described this case
- “[W]e hold that it is an enjoinable unfair labor practice to prosecute a baseless lawsuit with the intent of retaliating against an employee for the exercise of rights protected by § 7 of the NLRA.”
Written by the judges who cited it.
The opinion
Case: 24-60500 Document: 159-1 Page: 1 Date Filed: 04/17/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 24-60500 April 17, 2026
____________
Lyle W. Cayce
Clerk
Starbucks Corporation,
Petitioner/Cross-Respondent,
versus
National Labor Relations Board,
Respondent/Cross-Petitioner.
______________________________
Petition for Review from an Order of the
National Labor Relations Board
Agency No. 21-CA-304228
______________________________
Before Southwick, Higginson, and Douglas, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
The National Labor Relations Board found that Starbucks
Corporation violated Section 8(a)(1) of the National Labor Relations Act by
successfully obtaining Board-issued subpoenas seeking information
protected by Section 7 of the Act. But in reaching that conclusion, the Board
applied the wrong legal standard. Rather than evaluating whether Starbucks’
conduct would “tend to be coercive” under “the totality of the
circumstances,” NLRB v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d
452, 459 (5th Cir. 1983), the Board treated National Telephone Directory Corp.,
319 NLRB 420 (1995)—a discovery rule governing when subpoenas should
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No. 24-60500
be quashed—as dispositive of liability. Because that standard does not answer
the question whether an employer has committed an unfair labor practice, we
VACATE the Board’s order and REMAND for further proceedings not
inconsistent with this opinion.
I.
This case stems from an earlier NLRB unfair labor practice
proceeding concerning Starbucks’ La Quinta, California store. In December
2021, employees there began a union organizing campaign. Shift supervisors
Andrea Hernandez and Jazmine Cardenas joined the union organizing
committee and openly supported unionization. Workers United (the
“Union”) ultimately won the election for certification as the bargaining
representative.
In May 2022, the Union filed charges alleging unlawful conduct by
Starbucks during the organizing campaign. The Board thereafter issued a
complaint alleging that Starbucks had impermissibly restricted employees’
discussion of the Union.
Starbucks then began preparing its defense. Under the Board’s
longstanding rules, however, employers are generally not entitled to
prehearing discovery. Beta Steel Corp., 326 NLRB 1267, 1267 n.3 (1998).
Instead, they may request subpoenas from the Regional Director to compel
attendance and testimony at hearings and production of documents, records,
correspondence, or other evidence. 29 C.F.R. § 102.31(a); NLRB, Guide
to Board Procedures § 5.3(b) (2023), https://perma.cc/DNB5-
3WNY.
2
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Starbucks availed itself of that procedure. It obtained Board-issued
subpoenas directed to Cardenas and Hernandez. 1 The 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. They also contained instructions excluding certain
confidential Board materials.
The Union and the Board’s General Counsel petitioned to revoke the
subpoenas. The administrative law judge granted the petitions, concluding
that the subpoenas were overbroad and sought information that could reveal
protected activity, while permitting Starbucks to renew narrower requests
following testimony. The ALJ ultimately dismissed the underlying unfair
labor practice complaint, finding other witnesses more credible than
Cardenas and Hernandez, and the Board affirmed. Starbucks Corp., 372
NLRB No. 159, 2023 WL 8270018, at *2 (Nov. 28, 2023).
Meanwhile, the Board commenced a second unfair labor practice
proceeding based on the Board’s issuance of the subpoenas at Starbucks’
request, alleging that the subpoenas interfered with employees’ Section 7
rights by requesting “information and communications concerning their
protected and concerted activities, and/or union activities.” Following a
hearing, the ALJ concluded that Starbucks’ subpoenas had, in fact, violated
Section 8(a)(1) by seeking information protected by Section 7. 2 The ALJ
found that the “proper standard to apply” to determine whether the
_____________________
1
The Board issues subpoenas at the request of the parties in a ministerial manner,
as provided by Section 11(1) of the NLRA, 29 U.S.C. § 161(1), and Section 102.31 of its
Rules and Regulations, 29 C.F.R. § 102.31.
2
The ALJ and the Board dismissed the alleged violations of Section 8(a)(4). That
ruling is not at issue in this petition.
3
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No. 24-60500
subpoenas violated Section 8(a)(1) was “that contained in National
Telephone,” 319 NLRB 420.
The Board adopted that decision in relevant part and ordered
Starbucks to cease and desist from seeking similar subpoenas and to post a
remedial notice. Starbucks petitions for review, and the Board cross-applies
for enforcement of its order. Our court granted the Union leave to intervene.
II.
We review the Board’s legal conclusions de novo and its factual
findings for substantial evidence. Flex Frac Logistics, L.L.C. v. NLRB, 746
F.3d 205, 207 (5th Cir. 2014). 3
III.
Section 7 of the NLRA affords employees “the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection”—and “the right to refrain from any or all of such
activities.” 29 U.S.C. § 157. To protect those guarantees, Section 8(a)(1)
makes it an unfair labor practice for an employer “to interfere with, restrain,
or coerce employees in the exercise of” their Section 7 rights. Id. § 158(a)(1).
The test for Section 8(a)(1) liability is whether an employer’s conduct
would “tend to be coercive” when considered “within the totality of
circumstances surrounding the occurrence at issue.” 4 Brookwood Furniture,
_____________________
3
For ease of exposition, this opinion at times attributes to the Board the ALJ’s
findings that the Board later adopted.
4
Despite defending its application of National Telephone’s balancing test in this
case, the Board concedes this point on appeal, acknowledging that “[e]mployer conduct
4
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No. 24-60500
701 F.2d at 459 (quoting TRW-United Greenfield Div. v. NLRB, 637 F.2d 410,
415 (5th Cir. 1981)). We have consistently applied that standard in various
types of Section 8(a)(1) cases. See, e.g., Tex. Indus., Inc. v. NLRB, 336 F.2d
128, 134 (5th Cir. 1964); NLRB v. Pneu Elec., Inc., 309 F.3d 843, 850 (5th Cir.
2002); Brown & Root, Inc. v. NLRB, 333 F.3d 628, 634 (5th Cir. 2003).
Context—including the identity of the speaker, the setting, and the
surrounding events—determines whether conduct would tend to chill the
exercise of Section 7 rights. Pneu Elec., 309 F.3d at 850; Brookwood Furniture,
701 F.2d at 459–61.
The Board did not undertake the required totality-of-the-
circumstances analysis. Instead, it treated the “proper [Section 8(a)(1)
liability] standard” as that “contained in National Telephone”—a discovery
balancing test.
The National Telephone “standard,” however, was not designed to
assess whether employer-sought subpoenas, issued by the Board, “interfere
with, restrain, or coerce” employees’ exercise of their Section 7 rights.
29 U.S.C. § 158(a)(1). 5 Rather, it provides a discovery rule for determining
whether unions or employees may withhold otherwise relevant information
_____________________
violates Section 8(a)(1) if, considering the totality of the circumstances, it would reasonably
tend to coerce employees in the exercise of their statutory rights.”
5
There is no dispute that the Board issued the subpoenas it then held violated
Section 8. Little caselaw explores this incongruity, and we do not resolve it here because
the Board erred at the threshold by applying the wrong liability standard. We therefore will
not address in the first instance why parties who receive subpoenas issued by the Board,
with instructions about the Board’s use of the materials subpoenaed, and with instructions
on how to file a petition to the Board to revoke, nevertheless would, under the totality of
the circumstances, reasonably perceive coercion from this legal process and attribute it to
their employer, defending against Board prosecution. See generally Bill Johnson’s Rests., Inc.
v. NLRB, 461 U.S. 731, 744 (1983) (“[W]e hold that it is an enjoinable unfair labor practice
to prosecute a baseless lawsuit with the intent of retaliating against an employee for the
exercise of rights protected by § 7 of the NLRA.”).
5
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No. 24-60500
based on confidentiality interests. As the ALJ recognized, the National
Telephone test balances “employees’ rights under Section 7 to keep their
protected activities confidential” against an “employer’s need for the
information to present its defense.” When the former outweighs the latter,
the information may be withheld. Nat’l Tel., 319 NLRB at 421–22. That
balancing inquiry does not resolve the distinct question whether the
employer’s conduct is coercive within the meaning of Section 8(a)(1).
As discussed above, that coercion determination turns on the
employer’s conduct considered in its full context. To be sure, our precedents
most often address employer interrogation of protected activity and other
coercive conduct, rather than subpoenas. See, e.g., Brookwood Furniture, 701
F.2d at 460; Pneu Elec., 309 F.3d at 850–52. Section 8(a)(1) interrogation
cases, for example, commonly involve employers informally eliciting
information about protected activity in circumstances that may nonetheless
be coercive. As we have held, even “casual, general” questioning about
Section 7-protected activity can violate the Act when viewed in context,
though context may also show that similar conduct is not coercive. Brookwood
Furniture, 701 F.2d at 462. A subpoena arguably seeking disclosure of Section
7 activity may operate in a similar basic way—it compels the production of
protected information, albeit through a formal legal process rather than
informal questioning—and therefore could raise comparable concerns about
chilling the exercise of protected rights.
For its part, Starbucks identifies several circumstances it contends the
Board should have considered under the totality-of-the-circumstances
framework. Those include the subpoena instructions, which explain how
recipients may petition to revoke or modify the subpoena, and the subpoena’s
statement that “[t]he principal use of the information [sought] is to assist the
[Board] in processing . . . unfair labor practice proceedings.” These
considerations are not exhaustive. But their omission underscores the
6
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No. 24-60500
broader point: by applying the National Telephone balancing test, the Board
did not evaluate whether the subpoenas it issued, and it could revoke on
petition from the subpoenaed parties, were coercive and attributable to
employer conduct under the circumstances of this case.
The Board responds that it long ago transformed National Telephone
into a liability standard in Wright Electric, Inc., 327 NLRB 1194 (1999),
enforced, 200 F.3d 1162 (8th Cir. 2000). We disagree. There, the Board
considered whether to enjoin an employer’s discovery requests for employee
authorization cards in a state-court malicious prosecution action. Id. at 1195.
In enjoining those discovery requests, the Board cited National Telephone for
the proposition that “it is entirely possible that employees would be ‘chilled’
when asked to sign a union card if they knew the employer could see who
signed.” Id. (quoting Nat’l Tel., 319 NLRB at 421). On that basis, the Board
concluded that an employer violates the NLRA by seeking “to obtain the
identities of employees who sign authorization cards.” Id. (quoting Nat’l
Tel., 319 NLRB at 421). Nowhere, however, did the Board hold—as it did
here—that National Telephone supplies the “proper standard” for assessing
employer liability under Section 8(a)(1).
The Board’s reliance on United Nurses Ass’ns of California v. NLRB,
871 F.3d 767 (9th Cir. 2017), is also misplaced. There, the Ninth Circuit
upheld the Board’s determination that a quashed subpoena violated Section
8(a)(1), and it rejected the employer’s contention that the Board had over-
relied on National Telephone in imposing liability. Id. at 785–86. The court
explained that the employer’s “critique ignore[d] the purpose for which the
Board cited National Telephone, which was simply for the well-established law
that union activity is protected from employers’ prying eyes.” Id. at 786.
Here, by contrast, the Board did not cite National Telephone merely for that
7
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No. 24-60500
limited proposition; it treated the case as supplying the governing liability
standard.
Because the Board considered this case under the incorrect standard,
vacatur and remand are the appropriate disposition. “On remand, the Board
is free to reconsider the record and make any decision supported by
substantial evidence.” Tesla, Inc. v. NLRB, 120 F.4th 433, 440 (5th Cir.
2024) (en banc) (plurality opinion).
IV.
For the foregoing reasons, we GRANT Starbucks’ petition for
review, DENY the Board’s cross-application to enforce, VACATE the
Board’s order, and REMAND for further proceedings not inconsistent with
this opinion.
8