06/19/2025: Eighth Circuit Says Board Used Wrong Coercive Statement Standard
An employer actually left an election hearing after losing quorum argument.
Starbucks Corporation v. NLRB, 24-1890 (Eighth Circuit)
The Eighth Circuit Court of Appeals has vacated an NLRB decision that found Starbucks violated federal labor law when a store manager met one-on-one with an employee during a unionization campaign.
The case centers on conversations between Starbucks store manager Leticia Nolda and shift supervisor Yesenia Alarcon in May 2022, during a unionization effort at a Los Angeles Starbucks location. Nolda held one-on-one meetings with employees, including Alarcon, to discuss unionization. During her meeting with Alarcon, Nolda stated she opposed unionization, expressed that she wished she knew who started the unionizing effort, mentioned potential impacts on benefits and raises, and referenced a Canadian store where unionized employees were allegedly paid less than non-union employees.
Workers United filed charges with the NLRB, alleging Nolda threatened economic retaliation and coercively interrogated Alarcon about union activities in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). An administrative law judge (ALJ) ruled against Starbucks, finding that Nolda's statements constituted threats and interrogation. The ALJ explicitly stated that "the actual intent of the speaker or the effect on the listener is immaterial" in assessing alleged 8(a)(1) violations. The NLRB affirmed the ALJ's determinations.
The Eighth Circuit, in an opinion by Judge Gruender, vacated the NLRB's decision, finding that the Board applied an incorrect legal standard. The court held that while Section 8(a)(1) prohibits employers from interfering with employees' labor rights, not all employer communications are coercive. The test for coercion is whether the remarks "reasonably tended to coerce the employee not to exercise his right to engage in concerted activity." This determination must consider the "totality of the circumstances."
The court ruled that the Board erred by adopting the ALJ's assertion that the "intent of the speaker or the effect on the listener is immaterial." The court clarified that while employees' subjective impressions are not dispositive, they are relevant factors that should be considered, rather than deemed "immaterial." The court cited previous cases where it had weighed employees' subjective impressions to determine how a reasonable employee would objectively view employer conduct.
The court remanded the case for further proceedings consistent with its opinion, instructing the Board to apply the proper legal standard that considers the totality of circumstances, including relevant subjective impressions.
Judge Shepherd dissented, arguing that the Board did apply the proper objective standard and that the majority's "quasi-subjective standard" was inconsistent with precedent. The dissent contended that considering an employee's subsequent testimony about subjective perceptions runs contrary to the longstanding view that "the test of interference, restraint, or coercion... does not depend upon whether coercion succeeded or failed."
Significant Cases Cited
Tschiggfrie Props., Ltd. v. NLRB, 896 F.3d 880 (8th Cir. 2018): Established that when determining Section 8(a)(1) violations, the relevant question is whether questioning or remarks reasonably tended to coerce employees from exercising their rights.
Baptist Med. Sys. v. NLRB, 876 F.2d 661 (8th Cir. 1989): Applied a totality-of-circumstances test including consideration of whether an employee spoke freely without fear in response to questioning.
Midland Transp. Co. v. NLRB, 962 F.2d 1323 (8th Cir. 1992): Found no violation where an employee truthfully told employer of union support, showing questioning did not inspire fear of reprisal.
NLRB v. Va. Elec. & Power Co., 314 U.S. 469 (1941): Established that findings of unfair labor practices must be based upon the whole course of conduct revealed by the record.
Russell Stover Candies, Inc. v. NLRB, 551 F.2d 204 (8th Cir. 1977): Held that the test of interference, restraint, or coercion does not depend upon whether the coercion succeeded or failed.
Dreamclinic Incorporated, 19-RC-364048 (Regional Election Decision)
The NLRB Regional Director for Region 19 issued a Decision and Direction of Election on May 29, 2025, regarding a petition filed by United Food and Commercial Workers Local 3000 to represent approximately 46 licensed massage therapists and acupuncturists employed at Dreamclinic Incorporated's three wellness clinics in Seattle and Redmond, Washington.
At the April 28, 2025 hearing, Dreamclinic objected to the proceeding, arguing that the Regional Director lacked authority to hold a hearing because the NLRB lacked a quorum. After this objection was overruled, the employer left the hearing.
The Regional Director addressed the quorum issue, explaining that President Trump had removed Board Member Wilcox on January 27, 2025, leaving only two members on the Board. A complex legal battle ensued in the courts: The D.C. District Court initially ruled the removal violated the Act and reinstated Wilcox; a D.C. Circuit panel then stayed that order; the full D.C. Circuit subsequently vacated the panel's decision and denied the government's stay motion; and finally, the Supreme Court granted the government's application for a stay on May 22, 2025. Throughout this period, including when the petition was filed on April 18, 2025, the Board lacked a quorum.
The Regional Director rejected the employer's objection, explaining that the Board had previously delegated authority to regional directors to process representation cases, and this delegation remains effective regardless of whether the Board has a quorum. The decision cited Board regulations at 29 CFR § 102.178 and § 102.182, which provide that normal Agency operations should continue during periods when the Board lacks a quorum, and that representation cases should be processed to the extent practicable.
The decision described Dreamclinic's operations across its three wellness clinics, including the work schedules, job duties, and compensation structures for massage therapists, who work six-hour shifts, typically seeing three clients per shift, and are paid per session. The decision also addressed the NLRB's jurisdiction, finding statutory jurisdiction under the Tropicana rule since the employer pays insurance premiums of $55,200 annually to United Healthcare, a national insurance corporation.
The Regional Director found that the petitioner, United Food and Commercial Workers Local 3000, is a labor organization as defined by the Act, as it exists for the purpose of dealing with employers concerning working conditions and allows employee participation.
Regarding the appropriate bargaining unit, the decision found that massage therapists and acupuncturists share a community of interest because they work in the same facilities, share treatment rooms and supplies, are jointly supervised by clinic managers, have the same pay schedule, and receive the same benefits.
The decision directed a mail ballot election rather than the manual election requested by the petitioner, noting the employer's objection to the Regional Director's authority and the likelihood that the employer would not permit Board representatives to access its facilities to conduct a manual election.
Significant Cases Cited
Brentwood Assisted Living Community, 355 NLRB No. 149 (2010): Established that Regional Directors may properly process representation cases under delegated authority despite the Board lacking a quorum.
New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010): Found that the Board's loss of quorum did not invalidate prior delegations of authority to regional directors or the general counsel.
Tropicana Products, 122 NLRB 121 (1958): Held that the Board may assert jurisdiction when an employer refuses to provide information relevant to jurisdictional determinations if the record demonstrates statutory jurisdiction.
NLRB v. Fainblatt, 306 U.S. 601 (1939): Established that the Board's jurisdiction extends to all conduct that might constitutionally be regulated under the commerce clause, subject only to the de minimis rule.
Wheeling Island Gaming, 355 NLRB 637 (2010): Confirmed that a petitioner is not required to seek the most appropriate unit, but merely an appropriate unit.
The Greenlining Institute, 32-UC-359555 (Regional Election Decision)
On June 18, 2025, NLRB Regional Director Christy J. Kwon issued a decision dismissing a unit clarification petition filed by Greenliners United-UAW. The union had sought to include six Fellows in an existing bargaining unit at The Greenlining Institute in Oakland, California.
The Greenlining Institute is a California nonprofit that engages in public policy advocacy focusing on economic equity, climate equity, and transformative communities. The employer voluntarily recognized the union on October 10, 2024, for a unit that explicitly excluded Fellows. The union later filed this petition to clarify the unit to include the Fellows.
Fellows at the Institute participate in an 11-month Leadership Academy program from September through August. They are full-time salaried employees earning $60,000 and receive health benefits but not 401(k) benefits. Fellows participate in weekly training workshops and work with policy teams under the supervision of Program Managers, Senior Program Managers, or Directors.
The key issue was whether Fellows, as temporary employees, could be included in a bargaining unit with permanent employees. The Regional Director determined that Fellows are temporary employees with a finite 11-month tenure and no expectation of reemployment upon completion of the program. Despite sharing some terms and conditions with bargaining unit employees (similar office space, work schedules, benefits, policies), Fellows were deemed ineligible for inclusion.
The Regional Director emphasized the Board's established policy that temporary employees should be excluded from bargaining units with permanent employees. The Director rejected the union's reliance on Boston Medical Center Corp., distinguishing that case as involving medical residents with multi-year tenures of 3-7 years, unlike the Fellows' 11-month term.
The Director also found inapplicable the Board's exceptions for seasonal or recurring employees, noting that while the employer had previously hired former Fellows, there was no evidence of an expectation of re-employment on an annual or regular basis.
Based on this analysis, the Regional Director dismissed the petition, maintaining the original unit description that excluded Fellows.
Significant Cases Cited
Pen Mar Packaging Corp., 261 NLRB 874 (1982): Established Board policy that temporary employees are ineligible for inclusion in bargaining units.
Marian Medical Center, 339 NLRB 127 (2003): Defined temporary employee status as having finite tenure with a reasonably ascertainable end date.
Phoenix News Times, LLC, 370 NLRB No. 84 (2021): Found that fellows with fixed six-month tenure and no expectation of re-employment were temporary employees inappropriately included in a bargaining unit with permanent employees.
Boston Medical Center Corp., 330 NLRB 152 (1999): Distinguished medical residents with 3-7 year tenures from employees with shorter temporary assignments.
United Telecontrol Electronics, Inc., 239 NLRB 1057 (1978): Established that temporary employees without expectation of reemployment should be excluded from units with permanent employees.
Nuclear Regulatory Commission v. Texas, 23-1300 (Supreme Court)
This case is not about the NLRA, but does mention the NLRA as part of citing Leedom v. Kyne.