A Fifth Circuit panel signaled deep skepticism Tuesday toward the National Labor Relations Board’s push to brand Starbucks Corp. with a labor-law violation over what the agency says were sweeping, overreaching subpoenas aimed at pro-union employees—an approach one judge likened to a “liability trap.”

Judges Question Whether the Board Is Manufacturing Fault

U.S. Circuit Judge Stephen Higginson pressed the board’s stance, suggesting it defied common sense: Starbucks asks the government to issue a subpoena, and then the same government penalizes it for the very request it authorized. The NLRB claims Starbucks violated the National Labor Relations Act by issuing subpoenas seeking recordings of store management in La Quinta, California, along with workers’ communications.

“This feels like we’re transforming a simple discovery rule into a preset liability trap,” Judge Higginson said, underscoring his concern that the NLRB was stretching its enforcement powers.

An administrative law judge had dismissed every charge in the original labor dispute. But that didn’t stop the NLRB from circling back, launching a second attempt to prosecute Starbucks—this time based solely on the subpoenas themselves. Judge Higginson noted that the board had already succeeded in quashing the subpoenas in the underlying case.

NLRB Defends Rule Against Overbroad Subpoenas

Jared Odessky, arguing for the NLRB, maintained that without constraints on overly broad subpoenas, employers could pry into workers’ private lives without consequences. But the judges were unconvinced.

Higginson pointed out that the subpoenas, commanding workers to appear before the administrative judge, bore the NLRB’s own seal. Starbucks argued that it had relied on the agency’s process—only to be punished for using it.

“It’s hard to see how a board-issued subpoena becomes the employer’s wrongdoing,” Higginson said.

Odessky countered that while the subpoena came through the board’s machinery, Starbucks initiated it, and the action had “a chilling effect” on workers involved in the dispute.

Starbucks Says the Board Is Rewriting the Rules

Representing Starbucks, Amy Mason Saharia of Williams & Connolly LLP accused the NLRB of inventing a “per se test” that turns ordinary discovery friction into an automatic unfair labor practice. She told the panel that the board’s stance effectively weaponizes routine information-gathering.

Should the Court Draw New Boundaries?

U.S. Circuit Judge Leslie H. Southwick asked whether, if the court finds subpoenas can constitute unfair labor practices, the panel should spell out what factors would qualify. Saharia agreed that outlining those circumstances would help prevent future overreach.

The panel included U.S. Circuit Judges Leslie H. Southwick, Stephen A. Higginson and Dana M. Douglas.

Counsel and Representation

Starbucks Corp. is represented by Lisa Blatt, Amy Mason Saharia and Claire R. Cahill of Williams & Connolly LLP, and by Jeffrey S. Hiller and Jonathan O. Levine of Littler Mendelson PC.

The National Labor Relations Board is represented internally by Elizabeth A. Heaney, Jared H. Odessky, William B. Cowen, Stephanie Cahn, Peter Sung Ohr, Ruth E. Burdick and Meredith Jason.

Workers United, participating as an intervenor, is represented by Robert S. Giolito of the Law Office of Robert S. Giolito PC, along with Elizabeth Grdina, Michael P. Ellement and Charlotte Schwartz of James & Hoffman PC.