Key Points

• The 5th Circuit vacated an NLRB Order that found an employer committed an unfair labor practice by issuing subpoenas to employees involved in union organizing activities.
• The Court held that the Board applied the wrong legal standard, using a discovery-phase balancing test rather than the totality-of-the-circumstances analysis required to establish unfair labor practice liability under the NLRA.
• Employers issuing subpoenas in NLRB proceedings should ensure requests are narrowly tailored, but the decision signals that the 5th Circuit will require the Board to evaluate the full context of an employer's conduct before treating a subpoena as coercive.

The United States Court of Appeals for the 5th Circuit recently vacated a National Labor Relations Board (NLRB or Board) order finding that an employer violated the National Labor Relations Act (NLRA) by issuing subpoenas to employees that sought information related to their union organizing activities.

The Court held on Friday, April 17, 2026, that the Board erred by treating its discovery precedent — which balances employees’ confidentiality interests against an employer’s need for information — as the correct standard for determining unfair labor practice (ULP) liability.

The decision means that while employers should continue to ensure that subpoenas are narrowly tailored and targeted, the 5th Circuit appears open to giving them some leeway.

The underlying dispute arose from an organizing campaign at a retail location. After the Board issued a complaint alleging unlawful employer conduct during the campaign, the employer issued subpoenas directed at employees who had served on the organizing committee. The subpoenas sought communications with the union, communications with other employees about union activity, documents provided to the Board and witness affidavits related to the complaint. An administrative law judge revoked the subpoenas as overbroad. The Board then commenced a separate ULP proceeding based on the employer’s act of requesting the subpoenas, ultimately finding a violation of the NLRA and ordering the employer to cease and desist from requesting similar subpoenas.

The 5th Circuit reversed. The Court explained that ULP liability turns on whether an employer’s conduct tends to be coercive when evaluated under the totality of the circumstances. The Board’s discovery test, the Court said, addresses a different question: whether employees’ confidentiality interests outweigh the employer’s need for otherwise relevant information. That balancing inquiry, the court held, does not resolve the distinct issue of whether the employer’s conduct is coercive under the NLRA. The Court remanded for the Board to consider the case under the correct standard.

Employers should continue to ensure that subpoenas are appropriately tailored and targeted, but may take some comfort that the 5th Circuit will require the Board to evaluate the full context before converting a subpoena request into a ULP finding.

For more information, please contact Mark Eskenazi at 202.461.3109 or meskenazi@foxrothschild.com or another member of Fox Rothschild’s Labor & Employment Department. Listen to Mark’s podcast, “Labor Law Lineup”, on Spotify, Apple or wherever you get your podcasts.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the author and not necessarily this law firm or its clients.