U.S. labor board rejects Starbucks' call to revisit union election test

Starbucks employees who support unionization protest in the company's hometown ahead of Investor Day, in Seattle. REUTERS/Hilary Russ
  • COVID-19 rates still relevant in deciding to hold mail-in elections
  • Starbucks had argued that 2020 test needed to be updated
  • Most elections are still being held via mail ballots

(Reuters) - The U.S. National Labor Relations Board on Thursday rejected Starbucks Corp's call to reconsider a test the agency adopted two years ago for deciding whether to hold union elections in person or via mail ballot during the COVID-19 pandemic.

The Democrat-led NLRB in a 3-2 decision said local COVID-19 positivity rates in areas where elections are held are still relevant, rejecting Starbucks' claim that the data was outdated and did not reflect vaccination rates and other developments.

The decision came in a case involving a July union election at a Starbucks store in Seattle, which an NLRB regional director had ordered to take place via mail ballot. The ballots were impounded after Starbucks asked the board to review the decision to hold a mail-in election.

At least 240 Starbucks stores in the U.S. have unionized over the last year.

Starbucks did not immediately respond to a request for comment. Nor did Workers United, the union seeking to represent Starbucks employees.

The NLRB in a November 2020 rulinghad said the decision of how to conduct elections should be left to the discretion of regional directors, and laid out six factors for the officials to consider. Those include the local COVID-19 positivity rate and whether a workplace has had a recent COVID-19 outbreak.

Virtually all union elections were conducted via mail ballot during the pandemic until earlier this year, when the board began ordering in-person voting in some cases. Many employers and business groups have argued that voting by mail is less secure than in-person voting and should not become the norm.

The board on Thursday did make one tweak to the existing standard. Instead of relying on COVID-19 data provided by state and local governments, NLRB officials should now use a database maintained by the U.S. Centers for Disease Control and Prevention, the board said.

In a statement, NLRB Chair Lauren McFerran said using the CDC database would allow board officials to easily and consistently evaluate the safety of conducting in-person elections.

The board's two Republican members, Marvin Kaplan and John Ring, in a dissenting opinion said the NLRB should have sought public comment and engaged in a more thorough reexamination of the 2020 standard. They said that various problems that have arisen with mail-in balloting reinforce the board's longstanding preference for in-person voting.

"Employees deserve a thorough consideration of how current conditions are affecting employees’ ability to exercise their fundamental right to choose, or not to choose, representation," they wrote.

The case is Starbucks Corp, National Labor Relations Board, No. 19–RC–295849.

For Starbucks: Alyson Dieckman of Littler Mendelson

For the union: Dmitri Iglitzin of Barnard Iglitzin & Lavitt

Read more:

U.S. labor board won't revisit mail-in union election despite postal delays

NLRB officials refrain from ordering in-person union elections amid coronavirus surge

Starbucks could face 'just cause' bids at hundreds of unionized U.S. cafes

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.