A pending case in the U.S. Court of Appeals for the Second Circuit, Leslie v. Starbucks, will likely decide whether employers facing a preliminary injunction proceeding brought by the National Labor Relations Board (NLRB or the Board), the agency that enforces federal labor law, can obtain court-sanctioned discovery from rank-and-file employees of their views of the “chilling effect” of particular employer actions on their willingness to support the union seeking to organize them.

Because NLRB processes are notoriously slow, Congress in 1947 provided in Section 10(j) of the National Labor Relations Act (NLRA) that the Board may petition a federal district court to issue “appropriate temporary relief or restraining order” that it “deems just and proper.” Without such relief, the agency claims its remedial orders will come too late to repair the damage to the dischargees and the organizing drive.