8th Circuit reverses NLRB finding of employee coercion

The National Labor Relations Board (NLRB) erred when it stated that factual context such as an employee’s reactions are “immaterial” in evaluating alleged violations of the National Labor Relations Act (NLRA), the 8th U.S. Circuit Court of Appeals ruled on June 17.

Workers United, a labor union that represents workers in various industries, began a unionizing campaign at a Starbucks store in Los Angeles in May 2022.

Starbucks tasked the store manager, Leticia Nolda, with bringing awareness about unions to her team. She conducted one-on-one meetings with all the employees.

On May 25, Nolda met with shift supervisor Yesenia Alarcon. During the meeting, Nolda stated she was not in favor of the union and wished she knew who had started it. Nolda also expressed it was important to stay nonunion because the employees’ benefits and raises could be affected if the store unionized, referencing a Canadian store that unionized where the workers were now paid less.

Alarcon described the meeting as calm, although she did not feel free to leave the meeting. She opined that it sounded like Nolda was venting. Alarcon faced no discipline or adverse consequences, nor did she claim to feel chilled from speaking or from supporting the union.

In August 2022, the store voted overwhelmingly to unionize.

Workers United filed charges against Starbucks with the NLRB, alleging that Nolda threatened economic retaliation to Alarcon’s benefits and raises, and coercively interrogated her about union activities and sympathies.

An administrative law judge (ALJ) agreed that Nolda’s conversation with Alarcon violated Section 8(a)(1) of the NLRA.

The Board affirmed and Starbucks appealed.

In a split decision authored by Judge Raymond W. Gruender and joined by Judge Duane Benton, the court reversed.

The relevant question for determining whether an 8(a)(1) violation has occurred is whether the questioning or remarks reasonably tended to coerce the employee not to exercise his or her right to engage in concerted activity, the court explained.

Although the test for coercion is a reasonable-person test, “the employer’s alleged threat or interrogation is not viewed in a vacuum,” the court wrote. “When considering an alleged unfair labor practice, an employer’s conduct must be examined in light of ‘the totality of the[] circumstances.’”

The Board erred by adopting the ALJ’s application of an improper legal standard, Gruender said.

Although the ALJ correctly articulated the basic test for determining whether a Section 8(a)(1) violation occurred, mere sentences later the ALJ erroneously stated that “[t]he actual intent of the speaker or the effect on the listener is immaterial” in assessing alleged 8(a)(1) violations.

“While we have never held that employees’ subjective impressions are dispositive, we have also never stated that they are ‘immaterial,’” the court said. “Indeed, we have weighed employees’ subjective impressions to determine how a reasonable employee would objectively view her employer’s conduct.”

As the ALJ disclaimed any reliance on Alarcon’s reactions to Nolda’s statements — including Alarcon’s impressions that Nolda was venting and the meeting was calm — the ALJ and Board invoked and applied an improper legal standard, the court concluded, vacating the Board’s opinion and order and remanding.

Judge Bobby E. Shepherd filed a dissenting opinion, writing that he believed the Board applied the proper objective standard and that the majority’s “quasi-subjective standard” was not in line with circuit case law.

Lisa S. Blatt of Williams & Connolly in Washington, D.C., who represented Starbucks, did not respond to a request for comment.

A spokesperson for the NLRB declined to comment on the decision.

The case is Starbucks Corporation v. National Labor Relations Board, No. 24-1890.