Starbucks Corporation, (2023)

Date09 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
The Petitioners and Employers Requests for Review
of the Regional Directors 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
MEMBER KAPLAN, dissenting.
I would grant review, reverse the Regional Directors
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 Unitedcreate 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 dismissalby 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 Directors decision. In this regard, and
contrary to the Employers and Petitioners assertions, the Regional Di-
rector was not obligated to make a causal nexusfinding before
properly demonstrated through a Saint Gobainhearing.
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 situationsthat
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 01CA305952
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 balancebetween 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-
Dated, Washington, D.C. November 9, 2023
Marvin E. Kaplan, Member
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 contendsas he did in Rieth-
Rileythat there should be an exceptionto the Boards 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 situationhere. Consistent with our discussion in
Rieth-Riley, above, slip op. at 78, 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.

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