Starbucks Corporation, (2023)

• Date: 09 November 2023

372 NLRB No. 156

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 Ariana Cortes Petitioner

and Workers United. Case 03–RD–316974.

November 9, 2023

ORDER1

BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN

AND PROUTY

The Petitioner’s and Employer’s Requests for Review

of the Regional Director’s Decision and Order Dismissing

Petition are denied as they raise no substantial issues war-

ranting review.2

Dated, Washington, D.C. November 9, 2023

______________________________________

Lauren McFerran, Chairman

______________________________________

David M. Prouty, 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. In appropriate circumstances, Regional Di-

rectors retain the discretion to dismiss an election petition,

subject to reinstatement, 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 Rieth-Riley Construction Co ., then-Member

Ring and I indicated that merit-determination dismissals

are appropriate where a causal nexus between alleged un-

fair labor practices and the employee disaffection is

1The Employer asserts that Member Prouty should recuse himself,

claiming that his “past, present and perceived relationships with the Ser-

vice Employees International Union (SEIU) International Union, SEIU

Local Unions, and their affiliates, including Workers United”create a

conflict of interest. Member Prouty has determined, in consultation with

the NLRB Ethics Office, that there is no basis to recuse himself from the

adjudication of this case.

2In 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 and Petitioner’s assertions, the Regional Di-

rector was not obligated to make a “causal nexus”finding before

properly demonstrated through a “Saint Gobain”hearing.

371 NLRB No. 109, slip op. at 10–11 (2022) (Members

Kaplan and Ring, dissenting) (citing Saint Gobain Abra-

sives, 342 NLRB 434 (2004)). We acknowledged an ex-

ception 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 involving unremedied bad-faith bargaining allega-

tions, “there may be unusual and special situations”that

nevertheless “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 sixteen months before the decertifi-

cation petition was filed. Id., slip op. at 12. In this case, I

would likewise find that a merit-determination dismissal

is not warranted due to a lengthy delay in the processing

of the relevant unfair labor practice case. In this respect,

the unfair labor practice charges in Cases 01–CA–305952

et al. had been pending for almost 12 months before the

decertification petition was filed. As then-Member Ring

and I observed in Rieth-Riley, “excessive delay in con-

ducting elections based on unproven unfair labor practice

allegations fails to strike the proper balance”between sta-

bility of industrial relations and employee freedom of

choice. Id., slip op. at 10. Accordingly, I would

grant review and find that the petition should be pro-

cessed.

Dated, Washington, D.C. November 9, 2023

______________________________________

Marvin E. Kaplan, Member

NATIONAL LABOR RELATIONS BOARD

engaging in a merit-determination dismissal here because the Sec.

8(a)(5) refusal-to-bargain allegations in the complaint, if proven, would

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). We further

note that those outcomes would not depend on the existence of a causal

nexus between the unfair labor practices and the petition. Our dissenting

colleague acknowledges that a causal nexus finding is not necessary

where the allegations would result in an affirmative bargaining order or

extension of the certification year, but he contends—as he did in Rieth-

Riley—that there should be an “exception”to the Board’s merit-determi-

nation policy in “unusual and special situations,”such as where there has

been a lengthy delay in the related unfair labor practice proceedings. He

finds such a “special situation”here. Consistent with our discussion in

Rieth-Riley, above, slip op. at 7–8, however, we do not believe that carv-

ing out such an exception would advance any purpose of the Act, and we

decline to do so here.