Summary
The Fifth Circuit vacated an NLRB order finding that Starbucks violated Section 8(a)(1) of the National Labor Relations Act by seeking Board-issued subpoenas for information concerning employees’ protected union activity. The court held that the Board improperly treated the discovery standard from National Telephone Directory Corp. as the governing liability standard, rather than determining whether the conduct would tend to coerce employees under the totality of the circumstances. The court granted Starbucks’ petition for review, denied the Board’s cross-application for enforcement, and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the NLRB applied the correct legal standard in determining that Starbucks violated Section 8(a)(1) by obtaining Board-issued subpoenas seeking information concerning employees' protected activity.
- Whether the NLRB's use of the National Telephone discovery-balancing test was sufficient to determine whether Starbucks' conduct would reasonably tend to coerce employees under the totality-of-the-circumstances standard.
Holdings
- To determine whether an employer's conduct violates Section 8(a)(1), the NLRB must assess whether the conduct would reasonably tend to coerce employees in the exercise of their Section 7 rights under the totality of the circumstances.
- National Telephone's discovery-balancing test, which addresses when protected information may be withheld, does not itself supply the governing liability standard for determining whether an employer's subpoena-related conduct violates Section 8(a)(1).
Key quotations
“Rather than evaluating whether Starbucks’ conduct would “tend to be coercive” under “the totality of the circumstances,”” (at 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.”” (at 4)
“That balancing inquiry does not resolve the distinct question whether the employer’s conduct is coercive within the meaning of Section 8(a)(1).” (at 5)
Factual background
Employees at Starbucks' La Quinta, California store began a union-organizing campaign in December 2021, and shift supervisors Andrea Hernandez and Jazmine Cardenas openly supported unionization. During a later unfair-labor-practice proceeding, Starbucks obtained Board-issued subpoenas directed to Hernandez and Cardenas seeking communications and other materials concerning union activity and protected concerted activity. The subpoenas were quashed as overbroad and potentially revealing protected activity, and the Board later found that Starbucks' use of the subpoenas itself violated Section 8(a)(1).
Procedural history
The NLRB's administrative law judge found that Starbucks violated Section 8(a)(1) of the National Labor Relations Act by obtaining subpoenas seeking information concerning employees' protected activity. The Board adopted that determination in relevant part and ordered Starbucks to cease and desist from seeking similar subpoenas and to post a remedial notice. Starbucks petitioned for review, the Board cross-applied for enforcement, and the Union intervened by leave of court.
Remand instructions
The NLRB must reconsider the case under the totality-of-the-circumstances standard for determining whether Starbucks' conduct would reasonably tend to coerce employees in exercising their Section 7 rights. The Board may reconsider the record and make any decision supported by substantial evidence.