In February 2022, Workers United filed a petition to represent 90 employees at the Starbucks Reserve Roastery in Seattle. At the time, COVID-19 cases were rising in King County, Washington. Workers United requested a mail-ballot election, while Starbucks insisted on a traditional in-person manual election. Citing the 14-day trend of new confirmed cases, the NLRB Regional Director ordered a mail-ballot election, which took place in April 2022. Workers United won the election. Starbucks refused to recognize the union, arguing the Regional Director misapplied the NLRB's pandemic election protocols. The NLRB General Counsel filed a complaint alleging unfair labor practices. In November 2022, the NLRB Board held that Starbucks violated Section 8(a)(5) by refusing to bargain. The Board ordered Starbucks to cease and desist from refusing to bargain but severed the question of whether to order a compensatory remedy for the lost opportunity to bargain, leaving that issue for future consideration. The NLRB then petitioned the Ninth Circuit for enforcement of its order.
The panel addressed two primary issues. First, regarding jurisdiction, the court rejected Starbucks's claim that the severance of the compensatory remedy issue rendered the Board's order non-final and unreviewable. Applying the Supreme Court's test from Bennett v. Spear, the court concluded the order marked the consummation of the agency's decision-making process regarding the unfair labor practice charge. The order required Starbucks to bargain with the union, creating immediate legal consequences. The court reasoned that the severed issue of a potential make-whole remedy did not affect the Board's conclusion regarding the underlying violation or the order to bargain. Second, on the merits of the election procedure, the court examined whether the Regional Director abused his discretion in ordering a mail ballot. The panel noted that the Board has broad discretion in election arrangements and that the Aspirus Keweenaw standard allows for mail ballots when specific factors are met, including an increasing 14-day trend in COVID-19 cases. The Regional Director relied on data from the Johns Hopkins University Coronavirus Resource Center showing an increase in cases. Starbucks argued the Director should have used a rolling average or different data points, but the court found that Aspirus did not mandate a specific calculation method for the 14-day trend. Since the Regional Director used the data available at the time of his decision and faithfully applied the Aspirus standard, the court held there was no abuse of discretion. Consequently, the union's certification was proper, and the Board correctly found a violation of Section 8(a)(5).
Starbucks is now legally required to cease its refusal to recognize and bargain with Workers United as the exclusive collective-bargaining representative. The decision clarifies that NLRB orders remain final and reviewable even when the Board reserves judgment on specific remedial issues like make-whole payments. It also reinforces the Regional Director's discretion to order mail-ballot elections during public health emergencies based on the 14-day case trend, provided the Director uses the data available at the time of the decision. The severed issue of compensatory remedies remains open for future consideration by the Board.
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