At a Glance
This Littler Lightbulb highlights some of the more significant employment and labor law developments in the federal courts of appeal in the last month.
Fifth Circuit Vacates NLRB Order Regarding Company Subpoenas During Union Organizing Campaign
In Starbucks v. NLRB, __ F.4th __ (5th Cir. Apr. 17, 2026), the Fifth Circuit vacated the National Labor Relations Board’s (NLRB) order regarding subpoenas issued by the company in defense of an NLRB charge alleging unlawful conduct during a union organizing campaign. The Fifth Circuit rejected the NLRB’s claim that the subpoenas, which requested a broad range of documents, including communications by employees, violated Section 8(a)(1) of the NLRA by interfering with employees’ Section 7 organizing rights by requesting “information and communications concerning their protected and concerted activities, and/or union activities.”
The Fifth Circuit held the NLRB applied the wrong standard for assessing a Section 8(a)(1) violation, finding that the discovery rule for determining whether unions or employees could withhold otherwise relevant information based on confidentiality interests did not apply. “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,” the Fifth Circuit stated. Instead of applying the appropriate standard, the NLRB applied the discovery-focused, balancing test which...
Renowned human rights lawyer, Femi Falana, SAN, has criticised President Bola Tinubu for relying on claims by United States President Donald Trump regarding the reported killing of senior Islamic ...