A Fifth Circuit panel seemed skeptical of the National Labor Relations Board's claim that it can slap Starbucks Corp. with a labor law violation after it allegedly sent overbroad subpoenas to pro-union employees, saying Tuesday it seemed like the board created a "liability trap."

U.S. Circuit Judge Stephen Higginson said it seemed a little backwards that Starbucks can ask the government to issue a subpoena, and then get dinged with another prosecution because its discovery request was overbroad. The NLRB concluded that Starbucks flouted the National Labor Relations Act by issuing subpoenas that requested recordings of management in a store in La Quinta, California, as well as workers' communications.

"This really looks like we're taking a discovery rule and turning it into a liability trap," Judge Higginson said.

An administrative law judge dismissed all charges in the underlying labor dispute, but nonetheless the NLRB got a second shot at going after Starbucks based on the subpoenas, Judge Higginson said. Further, the NLRB filed to quash the subpoenas in the underlying action and succeeded in doing so, he said.

The NLRB's attorney, Jared Odessky, told the court that if the rule barring overbroad subpoenas did not exist, employers could potentially request whatever information they cared to with no fear of reprisal.

But Judge Higginson pushed back, saying that the subpoena commanded the workers to appear before the ALJ and was issued under the NLRB's seal. By Starbucks' telling, the NLRB authorized the subpoenas and then turned around and initiated additional claims based on those same subpoenas.

"None of that's in the name of the company," he said. "I really have a fundamental difficulty seeing how a board-issued subpoena is attributable to the company."

The subpoena comes from the employer with the cover letter stapled on top, Odessky said. In this case, the company used the board's processes to issue the subpoenas, which in turn had a chilling effect, he said.

But Starbucks' attorney, Amy Mason Saharia of Williams & Connolly LLP, told the court that the NLRB created a "per se test" that essentially allows the board to turn a discovery dispute into an unfair labor practice.

U.S. Circuit Judge Leslie H. Southwick wanted to know if, in the event the panel found that subpoenas can constitute an unfair labor practice, the Fifth Circuit should issue guidance regarding what factors would make the subpoena an unfair labor practice. Saharia said it would be helpful for the court to identify those circumstances for the board.

U.S. Circuit Judges Leslie H. Southwick, Stephen A. Higginson and Dana M. Douglas sat on the panel for the Fifth Circuit.

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 in-house by Elizabeth A. Heaney, Jared H. Odessky, William B. Cowen, Stephanie Cahn, Peter Sung Ohr, Ruth E. Burdick and Meredith Jason.

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

The case is Starbucks Corp. v. National Labor Relations Board, case number 24-60500, in the U.S. Court of Appeals for the Fifth Circuit.