Starbucks Corporation

373 NLRB No. 81 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 Workers United, Affili- ated with the Service Employees International Union. Case 19–RC–330730 August 8, 2024 ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY The Petitioner’s Request for Review of the Regional Di- rector’s Order Dismissing Objections is granted as it raises substantial issues warranting review.1 Having carefully considered the matter, we find that in the circumstances of this case, the Petitioner’s objections should be accepted as timely filed because the Petitioner relied on an erroneous deadline date that the Region provided. See Excalibur Ex- trusions, Inc., 296 NLRB 1292 (1989); Vanity Fair Mills, Inc., 256 NLRB 1104 (1981). The situation here is straightforward: the Tally of Bal- lots issued on January 8, 2024,2 and, under Section 102.69(a)(8) of the Board’s Rules and Regulations, any objections were due within 5 business days, i.e., by Janu- ary 16. On January 9, however, the Region sent the Peti- tioner’s counsel an email, on which the Board agent who oversaw the election was copied, noting that the Tally of Ballots was dated January 8 and then incorrectly, but un- ambiguously stating that the deadline date for filing objec- tions was January 17. The Petitioner’s counsel relied on this email and, as a result, filed the Petitioner’s objections the day after the actual filing deadline of January 16. In Excalibur Extrusions, the Board reaffirmed the longstanding principle that, “[r]egarding procedural issues that are a creature of Board policy, a party may be ‘justi- fied in relying upon the word of a responsible agent of the Board.’” 296 NLRB at 1292, quoting Sherry & Gordon Co., 107 NLRB 113, 114 (1953).3 Consistent with this principle, the Board in Vanity Fair Mills accepted a late- 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 All dates are in 2024 unless otherwise noted. 3 The Board in Excalibur Extrusions cited this principle in remanding the case to the Region to determine whether the Region had, pursuant to the relevant rule, timely granted the employer an extension of time to submit its evidence in support of objections. Significantly, in doing so, the Board emphasized that its action was “in harmony with the need for strict and uniform application of our procedural rules, whether the rule, as here, pertains to the submission of evidence in support of objections or . . . . the filing of objections themselves. In either event, in applying our rules we cannot ignore matters of due process that clearly fall within the intendment of those rules, and that is the situation presented in this case.” 296 NLRB at 1292 (internal footnote omitted). filed petition where the petitioner had “received from the Regional Office erroneous information” regarding the open period for filing. 256 NLRB at 1106. As in that case, we find, in the specific circumstances presented, that “the Petitioner understandably followed [the Region’s] advice in the reasonable expectation that [it] was acting in accord- ance with Board requirements.” Id.4 It follows that, be- cause the Petitioner’s objections were filed by the deadline date that the Region provided, the Petitioner’s filing should be accepted as timely. Accordingly, the Regional Director’s dismissal of the Petitioner’s objections is reversed, and the case is re- manded to the Regional Director for further appropriate action. Dated, Washington, D.C. August 8, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. I would vote to deny the Petitioner’s Request for Re- view. The question presented is whether the Regional Di- rector erred by dismissing the Petitioner’s untimely filed objections. Although the Regional Director’s dismissal was consistent with the Board’s established rules for filing election objections, my colleagues nevertheless reverse the Regional Director’s dismissal “because the Petitioner relied on an erroneous deadline date that the Region pro- vided.” Because I do not believe that the Petitioner estab- lished that the Regional Director acted in error, and be- cause neither of the cases cited by my colleagues estab- lishes that he acted in error, I dissent.1 4 The dissent suggests that, unlike in Vanity Fair Mills, the Petitioner here could not reasonably rely on the date that the Region provided and was thus obligated to independently confirm the deadline. As explained above, however, in the circumstances presented here, in which the Re- gion’s directions were facially unequivocal, the Petitioner was “justified in relying upon the word of a responsible agent of the Board[,]” 296 NLRB at 1292, consistent with the principles the Board has articulated in cases like Excalibur and Vanity Fair Mills. 1 Section 102.67 of the Board’s rules sets forth the grounds upon which the Board will grant review of Regional Directors’ actions. Ap- plicable to this matter is Sec. 102.67(d)(3), which requires a finding “[t]hat the conduct of any hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.” Therefore, in order to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Section 102.69(a)(7) of the Board’s Rules and Regula- tions states that “[u]pon conclusion of the election, the bal- lots will be counted and a tally of ballots prepared and im- mediately made available to the parties.” Section 102.69(a)(8) states that “[w]ithin 5 business days after the tally of ballots has been prepared, any party may file with the Regional Director objections to the conduct of the election or to conduct affecting the results of the election which shall contain a short statement of the reasons there- for and a written offer of proof . . . .”52 There is no question that the Regional Director correctly applied Section 102.69(a)(8). The Petitioner does not dis- pute that the tally of ballots was prepared on January 8.3 It is also undisputed that, according to the Board’s rules, the Petitioner’s objections were due on January 16—5 business days after January 8—and the Petitioner failed to meet this deadline. The Petitioner, however, asserts that, even though the Regional Director correctly applied the Board’s rules, it should be excused from meeting the deadline set in Sec- tion 102.69(a)(8) because the Region’s January 9 email in- cluded an error concerning the due date of the objections. My colleagues find merit in this argument; I disagree. The email at issue stated: Attached is a copy of Tally of Ballots dated 8 January 2024. If objections are to be filed by any party, the ob- jections containing a reason thereof and a written offer of proof must be electronically filed via the Board web- site (www.NLRB.gov) prior to 11:59 p.m. PST on 17 January 2024, or mailed, delivered, or faxed (206.220.6305) to the Regional Office by 4:45 p.m. PST on 17 January 2024. Although I am not without sympathy for the confusion created by the administrative error in the Region’s email, the fact remains that the text of the email contained con- tradictory information on its face: It set the date of the Tally of Ballots as January 8, which would mean that the objections were due on January 16, but then set the due date for the objections as January 17.4 As a result, the Re- gion’s email contained information clearly and obviously inconsistent with the Board’s rules. Those seeking to file documents with the regions bear the burden of ensuring that their filings are consistent with the Board’s rules and regulations. The Petitioner here had the duty to at least confirm with the Region if there was any doubt regarding a conflict between a deadline set in the rules and a deadline provided by the Region. The Petitioner—which, I note, was represented by counsel—failed to do so here at its peril. In finding that the Regional Director erred, my col- leagues rely on two inapposite cases. In Excalibur, the issue was not whether or not the party had complied with the Board’s rules but rather the factual question whether or not the region had granted the party an extension. In Vanity Fair, a pro se petitioning employee sought advice from the region regarding how to interpret the Board’s rules establishing the “open period” for filing a decertifi- cation petition. The region misinformed the petitioner, failing to realize that the applicable open period was at the end of the contract’s three-year anniversary date, not the contract’s expiration date. The Board found that, in those circumstances, “the Petitioner understandably followed [the Region’s] advice in the reasonable expectation that he was acting in accordance with Board requirements for fil- ing a petition in a timely manner during the contract term” (emphasis added). Here, unlike in Vanity Fair, Peti- tioner’s counsel did not make any attempt to ensure that he was acting in accordance with the Board’s rules. Accordingly, I would deny the Request for Review. Dated, Washington, D.C. August 8, 2024 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD grant review, the Petitioner must establish that the Regional Director erred. 2 The rule provides that a regional director “may extend the time for filing the written offer of proof in support of the election objections upon request of a party showing good cause,” but it does not include any pro- vision for the extension of time for filing election objections themselves. 3 Nor can the Petitioner contend that it was not aware that the tally of ballots was prepared on January 8; not only was Petitioner’s observer present when the tally of ballots was finalized, but the email sent by the Region on January 9 expressly referenced and attached the tally of bal- lots dated January 8. 4 As I have noted, and as my colleagues concede, the email upon which the Petitioner is attempting to rely expressly stated that the date of the tally of ballots was January 8. Although my view of the case would not change absent this additional fact, I note that the inclusion of the Jan- uary 8 date in the email should have made it abundantly clear to Peti- tioner’s counsel that the Region’s email contained incorrect information. Indeed, my colleagues cannot cite a single case where the Board has sug- gested that a late filing should be excused where the Region provided information that was clearly and obviously inconsistent with the Board’s rules. Furthermore, in light of the obviously contradictory information set forth in the Region’s email, I would not characterize the information contained in the email as “unambiguous.”