Nat'l Labor Relations Bd. v. Siren Retail Corp.

99 F.4th 1118

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SIREN RETAIL CORPORATION dba Starbucks, Respondent,Workers United, Intervenor.

No. 22-1969

United States Court of Appeals, Ninth Circuit

Argued and Submitted December 6, 2023 Seattle, Washington

Filed April 24, 2024

On Petition for Review of an Order of the National Labor Relations Board, National Labor Relations Board

Michael R. Hickson (argued), Senior Attorney; Elizabeth A. Heaney, Supervisory Attorney; David Habenstreit, Assistant General Counsel; Ruth E. Burdick, Deputy Associate General Counsel; Peter S. Ohr, Deputy General Counsel; Jennifer A. Abruzzo, General Counsel; National Labor Relations Board, Washington, D.C.; for Petitioner National Labor Relations Board.

Benjamin Berger (argued) and Dmitri Iglitzin, Barnard Iglitzin & Lavitt LLP, Seattle, WA, for Intervenor Workers United.

Gregory S. Fisher (argued), Littler Mendelson PC, Anchorage, Alaska; Ryan P. Hammond, Littler Mendelson PC, Seattle, Washington; Maury Baskin and Stefan Marculewicz, Littler Mendelson PC, Washington, D.C.; for Respondent Siren Retail Corporation dba Starbucks.

Before: M. Margaret McKeown, N. Randy Smith, and Gabriel P. Sanchez, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

Starbucks's strained relationship with its unionized workers has been much in the news over the past few years. This case, which concerns a prolonged battle over the union election at the first Starbucks Reserve Roastery in Seattle, is no exception.

In February 2022, Workers United filed a petition seeking to represent 90 employees at the Seattle Roastery. Citing rising COVID-19 cases in the area, the Regional Director ordered a mail-ballot election, which took place in April 2022. Starbucks refused to recognize and bargain with the union, claiming that the Regional Director should have ordered an in-person election instead. The Board disagreed, ordering Starbucks to "cease and desist from failing and refusing to recognize and bargain with the Union," while severing the issue of whether the Board would order an additional compensatory remedy for the lost opportunity to bargain. This application for enforcement followed.

We initially address Starbucks's claim that we lack jurisdiction over the application because the Board severed a remedial issue; we then consider whether the Regional Director abused his discretion by ordering a mail-ballot election, rather than a manual election. Because we have jurisdiction, and because the Regional Director properly exercised his discretion to order a mail-ballot election, we grant the Board's application for enforcement.

I. BACKGROUND

Following the filing of the representation petition, Workers United and Starbucks stipulated to most details regarding the union election. The major point of contention was that Workers United requested a mail-ballot election while Starbucks requested a manual election. On March 17, 2022, the Regional Director issued his opinion, ordering a mail-ballot election because the 14-day trend in the number of new confirmed COVID-19 cases in King County, Washington—where the Roastery is located—was increasing. Specifically, the opinion explains that "[a]s of March 16, the Johns Hopkins University & Medicine Coronavirus Resource Center reports a -14 day case count in King County of 663 cases and a -2 day case count, the most recent report, of 742 cases, an increase."

Starbucks requested Board review of the Regional Director's conclusion, arguing that he misapplied Aspirus Keweenaw, a key Board decision involving COVID-19 and election protocols. Aspirus Keweenaw, 370 N.L.R.B. 45 (2020), 2020 WL 6594972. In a 2-1 decision, the Board denied the request. See Siren Retail Corp., No. 19-RC-290608, 2022 WL 1002006, at *1 (Apr. 1, 2022). Chairman McFerran noted that she would hold that the Regional Director did not abuse his discretion "for the reasons given in her separate opinion¹ in Aspirus," but "even under the majority opinion in Aspirus, the Regional Director's decision should be affirmed based on the increasing 14-day trend in the number of new Covid-19 cases in King County." Siren, 2022 WL 1002006, at *1 n.1. Member Kaplan dissented, noting that because the Regional Director compared "two data points" instead of accounting for the "14-day trend as required by Aspirus," he would have granted Starbucks's request. Id.

The mail-ballot election was conducted on April 21, 2022. Out of 104 eligible voters, 69 ballots were returned, for a participation rate of 66 percent. The union won the election by a margin of 11 ballots. Starbucks objected to the election, but the Regional Director overruled the objection and certified the results. As is common in cases where the employer seeks to test election certification,² Starbucks refused to bargain with the Union, and the General Counsel filed a complaint alleging unfair labor practices.

In November 2022,³ the Board held that by refusing to recognize and bargain with the Union, Starbucks engaged in unfair labor practices in violation of Section 8(a)(5) of the National Labor Relations Act. In the "Remedy" section of the decision, the Board ordered "[Starbucks] to cease and desist from failing and refusing to recognize and bargain with the Union, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement." The Board noted that "the General Counsel request[ed] that [the Board] adopt a compensatory remedy requiring [Starbucks] to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act." However, because "[t]o do so would require overruling Ex-Cell-O Corp., 185 N.L.R.B. 107 (1970)," which held, more than fifty years ago, that such make-whole remedies were beyond the Board's statutory authority, the Board "decided to sever this issue and retain it for further consideration to expedite the issuance of this decision regarding the remaining issues in this case." This application for enforcement is before us for review.

II. DISCUSSION

A. Jurisdiction

We first consider whether we lack jurisdiction to resolve the Board's application for enforcement under 29 U.S.C. § 160(e), because the Board severed the question of whether to adopt a compensatory remedy. We review this question de novo and conclude that we have jurisdiction. See Advanced Integrative Med. Sci. Inst., PLLC v. Garland, 24 F.4th 1249, 1256 (9th Cir. 2022).

Under Section 10(e) of the National Labor Relations Act, "[t]he Board shall have power to petition any court of appeals of the United States . . . for the enforcement of [its] order[s]," including "order[s] requiring [a] person to cease and desist from [an] unfair labor practice." 29 U.S.C. §§ 160(c), (e).⁴ Although Section 10(e) does not explicitly limit appellate review of petitions for enforcement to "final" Board orders, we have long held that only such orders are reviewable. See NLRB. v. Cal. Horse Racing Bd., 940 F.2d 536, 539 (9th Cir. 1991) (stating that "sections 10(e) and (f) of the NLRA . . . provide for [judicial] review only upon petition for enforcement of, or appeal from, final Board orders").

As in other contexts where administrative finality is at issue, we apply the Supreme Court's test from Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). See, e.g., Saliba v. U.S. Sec. & Exch. Comm'n, 47 F.4th 961, 967 (9th Cir. 2022) (applying Bennett to the question of whether an order is "final" under the Exchange Act, noting that "we have previously held that the Bennett test may govern the meaning of the word 'final' for other analytically equivalent federal jurisdictional statutes outside the APA"); see also United Nat. Foods, Inc. v. NLRB, 66 F.4th 536, 540-42 (5th Cir. 2023) (applying the Bennett standard to a petition for review under Section 10(f) of the NLRA); Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1249 (D.C. Cir. 2012) (applying the Bennett standard to cross-petitions for enforcement and review under Section 10(e) and 10(f)).

Under Bennett, for an agency action to be "final" and thus reviewable, it "must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature." 520 U.S. at 177-78, 117 S.Ct. 1154 (cleaned up). Additionally, the action "must be one by which rights or obligations have been determined, or from which legal consequences will flow." Id. at 178, 117 S.Ct. 1154 (cleaned up). "In applying this test, we look to factors such as whether the action 'amounts to a definitive statement of the agency's position,' whether it 'has a direct and immediate effect on the day-to-day operations' of the subject party, and if 'immediate compliance [with the terms] is expected.' " Saliba, 47 F.4th at 967 (quoting Or. Nat. Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006)).

Applying the Bennett standard in a "pragmatic and flexible manner," we have no difficulty concluding that the Board's order is final and reviewable under 29 U.S.C § 160(e). See id. ("[T]he finality element must be interpreted in a pragmatic and flexible manner." (quoting Or. Nat. Res. Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir. 1995))). The order marks the "consummation" of the Board's process regarding the unfair labor practice charge against Starbucks, "from which legal consequences will flow," Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154, because it requires Starbucks to bargain with Workers United "as the exclusive collective-bargaining representative of the employees in the bargaining unit." Nothing in the order suggests that the severed issue—whether the Board should overrule longstanding precedent disallowing make-whole remedies—would have any effect on the Board's conclusion regarding the underlying charge, nor on the order to bargain. Applying the Bennett standard in a "pragmatic and flexible manner," Saliba, 47 F.4th at 967, we see no reason to conclude that severing the Ex-Cell-O is...