In its efforts to counter union organizing drives at its retail stores, Starbucks had some success obtaining lower courts’ approval of subpoenas seeking state-of-mind discovery of its regular employees regarding whether they support the union or have in fact been “chilled” by Starbucks’s opposition campaign. Such discovery may itself undermine support for the union and certainly will delay proceedings under Section 10(j) (“10(j)”) of the National Labor Relations Act (“Act”), the principal federal labor law. Section 10(j) authorizes federal district courts to issue temporary injunctive relief against unions and employers. On May 15, 2024, the U.S. Court of Appeals for the Second Circuit, via summary order, vacated a district court’s grant of Starbucks’s request to serve wide-ranging subpoenas on its rank-and-file employees in a 10(j) proceeding, a decision that may augur how appellate courts will view the emerging employer practice of seeking extensive rank-and-file state-of-mind discovery in future temporary injunction actions by the Government.
In Leslie v. Starbucks Corp., the Second Circuit determined that Starbucks’ court-approved discovery requests were overbroad and disproportionate to the comparatively limited inquiry required of a district court evaluating a petition for a temporary relief under 10(j). Although the appeals court recognized the permissibility of some limited discovery by employers in 10(j) proceedings, it rejected Starbucks’s argument that more sweeping discovery was needed in order to probe whether its termination of employees had any “chilling effect” on union activity, aside from the legality of the company’s underlying actions. The Second Circuit observed that “many of the alleged unfair labor practices here are inherently chilling,” and thus discovery concerning the precise source of any chilling effect was unnecessary. The appellate court added that “[w]hether the Union contributed further chill by publicizing news of the alleged unfair labor practices is largely beside the point, as Starbucks has provided no basis on which to suspect the Union ‘spread[] rumors or sensationalized wholly unsubstantiated charges against it.” The Second Circuit concluded that the permitted subpoenas were “overbroad,” and vacated the district court’s judgment, “allowing it an opportunity for closer inspection on remand.”
The Board’s 10(j) Authority
Section 10(j) authorizes the National Labor Relations Board (“Board” or “NLRB”) to petition a federal district court to issue “appropriate temporary relief or restraining order” that the court considers “just and proper” while an administrative unfair labor practice (“ULP”) proceeding is pending before the Board. Because the Board’s investigations and adjudication of ULP allegations are notoriously slow, Congress in 1947 added 10(j) to enable the Board to obtain such temporary relief to ensure that any ultimate remedial order would not be moot at its issuance. For instance, where the Board alleges an employer has illegally fired employees for engaging in protected union organizing, it may ask a district court for injunctive relief to temporarily restore those employees to their jobs pending the outcome of the ULP case before the Board. Absent such relief, by the time the Board has adjudicated the underlying ULP and ordered an illegally fired union supporter to be returned to their job, the union campaign and the willingness of the employees to continue supporting the union may have already been irreparably undermined.
Presented with a 10(j) petition, a district court must consider whether there is evidence demonstrating a reasonable likelihood that the alleged ULP has occurred, and the requested relief is “just and proper.” On April 23, 2024, the Supreme Court heard oral argument in Starbucks Corp. v. McKinney, No. 23-367, another 10(j) case brought against the company by the Board, to resolve a conflict between the varied approaches of the appellate courts, A decision in that case is pending.
The District Court & NLRB Proceedings in Leslie
In Leslie, the Board issued an administrative complaint alleging that Starbucks had committed hundreds of ULPs at its Buffalo-area stores, including the retaliatory discharge of several rank-and-file union supporters. The Board’s 10(j) petition to the district court asked, among other relief, for a temporary injunction to reinstate the discharged employees to their jobs. among other relief. Starbucks then sought subpoenas for documents from 19 of its employees as well as the union and two of its agents. The district court quashed some of the subpoenas but refused to quash others, which requested numerous documents and categories of information from employees. See Leslie v. Starbucks Corp., No 22-cv-478, 2022 WL 7702652 (W.D.N.Y. Sept. 23, 2022). For instance, the court permitted requests for documents containing statements by employees about their support for the union campaign and reasons for their views, documents in which employees may have provided reasons other than alleged retaliation for not supporting the campaign, and all emails from the Starbucks union’s account in which employees expressed an interest in organizing or fear of retaliation. Starbucks explained that such discovery was necessary not to dispute the merits of the underlying ULP, but to challenge the Board’s contention that 10(j) relief was “just and proper.”
Shortly after the district court issued its discovery order, a Board ALJ concluded that many of Starbucks’s discovery requests themselves violated the Act under the Board’s Guess? framework for evaluating the legality of discovery requests in non-Board proceedings. See Decision, Starbucks Corp., No. 03-CA-304675 (May 12, 2023) (citing Guess? Inc., 339 N.L.R.B. 432, 434 (2003)). The district court then refused the Board’s subsequent request to reconsider its discovery order, and instead said it would dismiss the 10(j) petition unless the Regional Director put an end to the administrative Guess? proceeding in which the ALJ had found the discovery requests to be ULPs. When the Board declined, the district court dismissed the petition, and the agency appealed.
The Second Circuit Summary Decision
In its decision, the Second Circuit first confirmed that the district court was not prohibited from allowing “limited expedited discovery” in a 10(j) proceeding. However, the appeals court continued, the subpoenas permitted in this particular case were “plainly overbroad.” The court’s analysis drew on the discovery limitations set forth in the Federal Rules of Civil Procedure. The panel first observed that Rule 26 provides that courts may grant subpoenas that are “proportional to the needs of the case” and limit or bar discovery to protect a party from “undue burden or expense.” Additionally, Rule 45 obliges a court to quash or modify a subpoena that imposes an undue burden or requires disclosure of “privileged or other protected matter.”
The Second Circuit then determined that the district court-approved subpoena requests in this case “clearly exceed the acceptable scope contemplated by the Federal Rules.” For instance, the court observed, requiring Starbucks employees to provide all messages to or from a union email account concerning any employee’s interest in forming a union “is not proportional to the inquiry required in connection with this Section 10(j) petition and requires disclosure of confidential labor organizing activities.” The court emphasized that the requests were especially disproportionate given that an extensive administrative record of more than 2,000 pages was already available from the underlying ULP case.
The court also declined to accept the underlying rationale for the subpoenas, advanced by Starbucks and adopted by the district court, that the requests were necessary to uncover evidence that might show that any purported chilling effect caused by the company’s discharges of union supporters were either nonexistent or not caused by the discharges. Starbucks had not contended that the requested documents would bear on whether it was reasonably likely the Board would prevail on the merits of the underlying ULP case. Instead, the company argued, the information—such as employees’ views on the Starbucks union and their reason for supporting or not supporting it—would show the company’s actions had not caused any chill in employee organizing, irrespective of the legality of the discharges. The Second Circuit rejected this chill-causation theory, observing that “many of the alleged unfair labor practices here are inherently chilling.” See Summary Order at 16, Leslie v. Starbucks Corp., No. 23-1194 (2d Cir. May 15, 2024). The Second Circuit provided as examples of such “inherently chilling” ULPs, retaliatory discharges of “active and open union supporters,” employer conduct that creates an impression of surveillance, and threats to withhold benefits if employees unionize.
The Second Circuit concluded by observing that neither Starbucks nor the Board ably presented their respective case as to the necessity or proportionality of the discovery requests. Thus, the court vacated, rather than reversed, the district court decision to provide an opportunity for closer inspection on remand, further delaying resolution of the 10(j) petition.
Takeaways
There were several important factors undergirding the Second Circuit’s decision that could bear on rank-and-file discovery disputes in future 10(j) litigation. The court repeatedly emphasized the importance of proportionality to an evaluation of whether to approve or reject an employer’s discovery requests. The court began its analysis of the subpoenas by highlighting Rule 26’s limitation of the scope of discovery to that which is “proportional to the needs of the case.” In Leslie, the Second Circuit found the requests clearly disproportionate in part because several were nationwide in scope or sought information concerning any Starbucks employee, rather than a select group of employees. Significantly, the Second Circuit also considered in its proportionality analysis the interest of rank-and-file employees in keeping union organizing activity confidential. For instance, the appellate court explained that requiring employees to produce documents reflecting any Starbucks employee’s interest in or support for the union, “is not proportional to the inquiry required in connection with this Section 10(j) petition and requires disclosure of confidential labor organizing activities.” Summary Order at 15, Leslie v. Starbucks Corp., No. 23-1194 (2d Cir. May 15, 2024). This suggests that in a future 10(j) proceeding, the Board may seek to emphasize employees’ confidentiality interests in challenging employer discovery requests. Employers in subsequent 10(j) cases may be less likely to seek discovery requests from employees quite as broad as Starbucks’s in Leslie, but those requests may nevertheless be challenged as disproportionate given the substantial employee confidentiality interests at stake.
Additionally, the Leslie decision and future rulings on employer discovery requests in 10(j) proceedings are likely to take on heightened importance following the Supreme Court’s pending decision in McKinney. In that case, the Court may well adopt the 4-step equity standard advocated by Starbucks, one that would accord the Board less deference and may make it more difficult for the Board to secure 10(j) relief. This standard, which applies traditional equitable principles, typically requires the agency to establish a likelihood of irreparable harm absent relief, that the relief is in the public interest, and the balance of equities tip in its favor. In Leslie, the Second Circuit in this case, noted that the “irreparable harm” inquiry “probes whether the employees’ collective bargaining rights may be undermined by the [asserted] unfair labor practices and whether any further delay may impair or undermine such bargaining in the future.” Summary Order at 13, Leslie v. Starbucks Corp., No. 23-1194 (2d Cir. May 15, 2024) (cleaned up).
The authors previously wrote on this case when it was pending in the appellate court. See Samuel Estreicher & Peter Rawlings, Second Circuit Takes on Case Involving Discovery of Regular Employees in Union Debate, N.Y.L.J., May 1, 2024.