April 17, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • Starbucks Corporation v. National Labor Relations Board, 24-60500, petition for review of NLRB order
    • Higginson, J. (Southwick, Higginson, Douglas) (oral argument), labor law
    • Granting petition for review of NLRB order and vacating NLRB’s order, denying NLRB’s cross-application for enforcement, and remanding for further proceedings.
    • Employees at Starbucks’ La Quinta, California, store began a union organizing campaign in December 2021, and Workers United ultimately won the certification election. After the Union filed unfair labor practice charges, Starbucks obtained Board-issued subpoenas directed to two pro-union shift supervisors, seeking a broad range of materials including communications with the Union, communications with other employees about Union activity, and statements or affidavits relating to the complaint. The ALJ quashed the subpoenas as overbroad, and the underlying unfair labor practice complaint was dismissed. The Board then commenced a second unfair labor practice proceeding, alleging that the very act of obtaining the subpoenas violated Section 8(a)(1) of the NLRA by interfering with employees’ Section 7 rights. The ALJ and the Board found a violation, applying the balancing test from National Telephone Directory Corp., 319 NLRB 420 (1995), as the “proper standard.”
    • At issue on appeal is whether the NLRB applied the correct legal standard in finding that Starbucks violated Section 8(a)(1) by obtaining Board-issued subpoenas seeking Section 7-protected information—specifically, whether the discovery-oriented National Telephone balancing test can serve as the liability standard for employer coercion under Section 8(a)(1).
    • The court held that Section 8(a)(1) liability is governed by whether an employer’s conduct would “tend to be coercive” under “the totality of the circumstances,” citing NLRB v. Brookwood Furniture, 701 F.2d 452, 459 (5th Cir. 1983), and the Board itself conceded this point on appeal. The National Telephone test, by contrast, is a discovery rule that balances employees’ Section 7 confidentiality interests against an employer’s need for information—”[t]hat balancing inquiry does not resolve the distinct question whether the employer’s conduct is coercive within the meaning of Section 8(a)(1).”
      • The court noted important contextual factors that the Board failed to consider, including that the subpoenas were issued by the Board itself, contained instructions explaining that the principal use of the information was to assist Board proceedings, and informed recipients of their right to petition to revoke—circumstances Starbucks argued cut against a finding of coercion. Their omission “underscores the 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 court rejected the Board’s arguments that Wright Electric, Inc., 327 NLRB 1194 (1999), had already transformed National Telephone into a liability standard, finding that Wright Electric merely cited National Telephone for the chilling-effect proposition without holding it supplied the “proper standard” for Section 8(a)(1) liability. The court also distinguished the Ninth Circuit’s decision in United Nurses Ass’ns of California v. NLRB, 871 F.3d 767 (9th Cir. 2017), where the Board had cited National Telephone only for the “limited proposition” that union activity is protected from employers’ prying eyes, rather than treating it as the governing liability standard as it did here.