On June 17, 2025, a divided Eighth Circuit panel addressed a key challenge to the NLRB’s standard for evaluating whether an employer’s statements regarding unionization violate the National Labor Relations Act. The Eighth Circuit held that an employee’s subjective impression of an employer’s statements during a union-related meeting should have been considered in determining whether a violation occurred.
The National Labor Relations Act
Section 8 of the National Labor Relations Act (“NLRA”) permits employers to hold meetings with employees about unionization but prohibits employers from threatening or interrogating employees. Under Section 8(c), not all employer communications are considered interrogations, threats, or coercive acts. So long as the employer’s expression contains no threat of reprisal, force or promise of benefit, it is permissible. In essence, employers may express their views, arguments, or opinions on unionization, as long as the communication is non-coercive.
Background
In May 2022, Workers United began a unionization effort at a Starbucks store in Los Angeles. In response to these efforts, the store manager held individual meetings with employees, including a shift supervisor. The manager, noting she was not in favor of the union, asked the supervisor if they knew who had initiated the union effort and remarked that unionization could negatively affect employee benefits and raises – though she acknowledged not knowing exactly how they might be impacted. The supervisor described the meeting as calm and said she did not feel pressured to express a view on the union, although she did not feel free to leave. Following the store’s vote to unionize in August 2022, Workers United filed charges against Starbucks with the NLRB alleging the manager threatened economic retaliation to employee benefits and raises and coercively interrogated the supervisor about union activities. An administrative judge (“ALJ”) concluded that a Section 8(a) violation occurred. The Board affirmed the decision.
Starbucks v. NLRB
On appeal, the Eighth Circuit recognized that the “relevant question” in assessing a potential Section 8(a) violation is whether the employer’s questioning or remarks would tend to coerce an employee from exercising their right to engage in union activity. However, the court found that the NLRB applied the wrong legal standard when it “erroneously” concluded that the factual context – such as the employee’s impressions of the conversation and their reactions – were “immaterial.” While an employee’s subjective impressions are not dispositive in determining whether an employer’s statements were threatening or coercive, they are also not irrelevant. An employee’s subjective impressions should be weighed to determine how a reasonable employee would have objectively viewed the employer’s conduct, under a totality of the circumstances.
In this case, both the ALJ and the Board expressly “disclaimed” any reliance on the supervisor’s reactions to the manager’s statements, thereby applying an improper legal standard. For instance, the supervisor’s perception that the manager was merely “venting” and that the meeting was “calm” was wrongly deemed irrelevant. While these observations are not dispositive, they should nonetheless be considered in determining whether a Section 8(a) violation occurred.
Bottom Line
The Eighth’s Circuit ruling reinforces the notion that employers are given some latitude in expressions of speech under Section 8 of the NLRA, but employers should remain cognizant of intent and employees’ perception of the conversations regarding union-related matters. Coercive conduct under Section 8(a) is assessed based on the totality of the circumstances approach, including how a reasonable person would objectively perceive the conduct – making employees’ subjective impressions relevant, although not dispositive.
*A special thanks to Grace M. Sjoberg for her assistance with this post.