Starbucks Corporation

373 NLRB No. 74 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Starbucks Corporation and Alexandra S. Wood and Workers United. Case 19–RD–330839 July 11, 2024 ORDER1 BY CHAIRMAN MCFERRAN MEMBERS KAPLAN AND WILCOX The Employer’s request for review of the Regional Di- rector’s Decision and Order Dismissing Petition is denied as it raises no substantial issues warranting review.2 Dated, Washington, D.C. July 11, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. I would grant review, reverse the Regional Director’s decision to dismiss the decertification petition, and order an election. I disagree with the Regional Director that a 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer asserts that Members Prouty and Wilcox should recuse themselves, claiming that their “past, present and perceived relationships with the Service Employees International Union (“SEIU”) International Union, SEIU Local Unions, and their affiliates, including Workers United” create a conflict of interest. Member Prouty is not on this panel, rendering moot the Employer’s assertion that he should be recused. Member Wilcox has determined, in consultation with the NLRB Desig- nated Agency Ethics Official, that there is no basis to recuse herself from the adjudication of this case. 2 In denying review, we observe that the Regional Director engaged in what we have termed a “merit-determination dismissal” by dismissing the petition, subject to reinstatement, because of a merit determination with respect to certain types of unfair labor practice charges. In Rieth- Riley Construction Co., Inc., 371 NLRB No. 109 (2022), we held that merit-determination dismissals remain available under Board law. We find that a merit-determination dismissal was appropriate here, for the reasons stated in the Regional Director’s Decision. In this regard, and contrary to the Employer’s assertion, the Regional Director was not ob- ligated to make a “causal nexus” finding before engaging in a merit-de- termination dismissal here because the Sec. 8(a)(5) refusal-to-bargain al- legations in the complaint in Cases 01–CA–305952 et al., if proven, will result in an affirmative bargaining order and/or extension of the certifi- cation year, which would, in turn, require the dismissal of the petition. See Big Three Industries, Inc., 201 NLRB 197, 197 (1973). Further, the merit-determination dismissal is appropriate based on the unfair labor practice allegations in the complaints in Cases 01–CA–305952 et al., Cases 13–CA–305908 et al., and Cases 19–CA–295708 et al. In appropriate circumstances, Regional Directors retain the discretion to dismiss an election petition, subject to re- instatement, after determining that pending charges are meritorious and that, if proven, the pending charges would require the dismissal of the petition. In our dissent in Ri- eth-Riley Construction Co., then-Member Ring and I indi- cated that merit-determination dismissals are appropriate where a causal nexus between alleged unfair labor prac- tices and the employee disaffection is properly demon- strated through a “Saint Gobain” hearing. 371 NLRB No. 109, slip op. at 10–11 (2022) (Members Kaplan and Ring, dissenting) (citing Saint Gobain Abrasives, 342 NLRB 434 (2004)). We acknowledged an exception to this causal nexus requirement where the alleged unfair labor practices include bad-faith bargaining and an affirmative bargaining order is an appropriate remedy. Id., slip. op. at 11–12. However, we recognized that, even in cases in- volving unremedied bad-faith bargaining allegations, “there may be unusual and special situations” that never- theless “impel the holding of elections.” Id., slip. op. at 12 (quoting Big Three Industries, 201 NLRB 197, 197 (1973)). In Rieth-Riley, we found that such a special situ- ation existed where the relevant unfair labor practice case had been pending for 16 months before the decertification petition was filed. Id. Sec. 8(a)(5) refusal-to-bargain allegations in the complaint in Cases 13– CA–305908 et al. may also result in an affirmative bargaining order and/or extension of the certification year. See BOC Group, 323 NLRB 1100, 1100 (1997). We further note that those outcomes would not de- pend on the existence of a causal nexus between the unfair labor practices and the petition. See Starbucks Corp., 372 NLRB No. 156, slip op. at fn. 2 (2023). Our dissenting colleague acknowledges that a causal nexus finding is not necessary where the allegations would result in an affirmative bar- gaining order or extension of the certification year, but with respect to the complaint in Cases 01–CA–305952 et al., contends—as he did in Ri- eth-Riley—that there should be an “exception” to the Board’s merit-de- termination policy in “unusual and special situations,” such as where there has been a lengthy delay in the related unfair labor practice pro- ceedings. He finds such a “special situation” here. Consistent with our discussion in Rieth-Riley, above, slip op. at 7–8, however, we do not be- lieve that carving out such an exception would advance any purpose of the Act, and we decline to do so here. With respect to the complaint in Cases 13–CA–305908 et al., our colleague asserts that the complaint al- legations will not warrant an affirmative bargaining order or extension of the certification year. As explained above, the allegations may result in an affirmative bargaining order and/or extension of the certification year and thus an assessment of the merits of the remedies sought in that complaint are properly left to the unfair labor practice proceedings. We find it unnecessary to pass on the Regional Director’s additional reliance on the complaint in Cases 19–CA–295708 et al. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 In this case, I would likewise find that a merit-determi- nation dismissal is not warranted based on the Section 8(a)(5) refusal-to-bargain allegations in the complaint in Cases 01–CA–305952 et al. In this respect, the unfair la- bor practice charge, 19–CA–296424, had been pending for over fifteen months before the decertification petition was filed.1 As then-Member Ring and I observed in Rieth- Riley, “excessive delay in conducting elections based on unproven unfair labor practice allegations fails to strike the proper balance” between stability of industrial rela- tions and employee freedom of choice. Id., slip op. at 10. In addition, I find that the Regional Director erred in relying on the complaint in Cases 13–CA–305908 et al., in dismissing the decertification petition, subject to rein- statement. In that complaint, the General Counsel alleges that the Employer violated Section 8(a)(5) of the Act by unlawfully failing to provide, and delaying in providing, information to the Union with respect to over 150 Union- represented stores, including the store involved in this case. The General Counsel also requests an affirmative- bargaining order and an extension of the certification year under Mar-Jac Poultry Co., 136 NLRB 785 (1962). In my view, these complaint allegations would not warrant either an affirmative-bargaining order or a Mar-Jac remedy, and should not, as the Regional Director found, preclude a question concerning representation. The Board has recog- nized that the Section 8(a)(5) refusal-to-bargain alleged in the information request complaint is different than the one in the general refusal to bargain complaint. Specifically, the Board has declined to order an affirmative bargaining order where the complaint does not allege a refusal to rec- ognize the Union or general refusal to bargain. See Rieth- Riley Construction Co., Inc., 372 NLRB No. 142 (2023) (denying the General Counsel and union’s request for an affirmative bargaining order because traditional remedies were sufficient to remedy the employer’s unlawful failure to provide information); CPL (Linwood) d/b/a Linwood Care Center, 367 NLRB No. 14, slip op. at 1 fn. 5 (2018) (deleting the judge’s recommended affirmative bargaining order where a general refusal to bargain was neither al- leged nor found and substituting a limited bargaining or- der for the employer’s unlawful delay in furnishing infor- mation and unilateral change); St. George Warehouse, Inc., 341 NLRB 904, 909 (2004) (finding that a 1-year ex- tension of the certification year was not warranted where the employer had made unilateral changes and failed to furnish information but had not engaged in surface bar- gaining), enfd. 420 F.3d 294 (1st Cir. 2005); Mimbres Me- morial Hospital, 337 NLRB 998, 998 fn. 2, 999 (2002) 1 The unfair labor practice charge in Case 19–CA–296424 pertains to units at several stores, one of which is the store at issue, Store 17747, which is located at 12235 N. Center Avenue, Portland, Oregon. The (finding that the judge’s recommended general affirmative bargaining order was not necessary to remedy the em- ployer’s unlawful unilateral changes and failure to provide the union with certain requested information), review de- nied sub nom. NLRB v. CHS Community Health Systems, Inc., 108 Fed. Appx. 577 (10th Cir. 2004). Therefore, con- sistent with Board precedent, I would not find that an af- firmative bargaining order is an appropriate remedy for an alleged refusal to provide information. As such, I would find that a merit-determination dismis- sal may be warranted for an allegation that an employer failed to provide information but only where a causal nexus between the alleged failure to provide information and the decertification petition is properly demonstrated through a Saint Gobain hearing. See Rieth-Riley, 371 NLRB No. 109, slip op. at 10 (Members Kaplan and Ring, dissenting) (“[A]n important safeguard in our precedent requires that before dismissing a petition based on an al- leged causal nexus, there must be a ‘causal nexus’ hearing as prescribed by Saint Gobain.”). However, I find it dif- ficult to conceive of circumstances where an employer’s unlawful failure to provide information would cause em- ployee disaffection from a union, particularly because it is unlikely that bargaining-unit employees would learn of an employer’s failure to provide such information. See, e.g., Champion Home Builders Co., 350 NLRB 788, 788–792 (2007) (finding employer’s unfair labor practices insuffi- cient to taint petition where, among other things, there was no evidence that the unit employees knew of the em- ployer’s unlawful refusal to provide information at the time they signed the petition). Finally, I find that the Regional Director erred in dis- missing the petition based on the complaint in Cases 19– CA–295708, et al. On January 4, 2024, the judge issued a decision in that case, Starbucks Corp., JD-02-24, slip op. at 40 (January 4, 2024), in which he found that a Mar-Jac remedy was not warranted and did not recommend an af- firmative bargaining order; neither the General Counsel nor the Charging Party have excepted to the judge’s fail- ure to order such remedies. Because these unfair labor practice allegations would not warrant either an affirmative-bargaining order or a Mar-Jac remedy, I find that they do not preclude a ques- tion concerning representation. Accordingly, I would grant review and order that the decertification petition be processed. Dated, Washington, D.C. July 11, 2024 General Counsel consolidated the complaint based on this charge with the existing complaint in Case 01–CA–305952, in which the General Counsel is seeking a nation-wide remedy. STARBUCKS CORP. 3 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD