Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
June 01, 2023
On May 25, the National Relations Board’s (NLRB or Board) Regional Director for Region 3 rejected a decertification petition filed by workers at a Starbucks location in Buffalo, New York. Decertification petitions are filed by workers when they decide that they no longer want a union to represent them.
A petition can only be filed after a one-year period has passed from the time the union is elected. In the case of the Buffalo store, that period expired on April 15, 2023. In light of that window closing, workers filed their decertification petition on April 28.
So why was the petition rejected? In her decision, the Regional Director noted that the NLRB’s General Counsel is seeking what’s known as a Mar-Jac remedy against Starbucks. Mar Jac remedies are pursued by the NLRB when an employer refuses to bargain with a union and seek to extend the aforementioned one-year period. According to Board policy, the Regional Director wrote, she is “compelled to conclude that the General Counsel’s seeking of an extension of the certification year will be granted such that it would preclude a question concerning representation at the time this petition was filed.”
In other words, the General Counsel has filed a complaint asking to extend the one-year period. It has not yet been adjudicated. But Board policy apparently requires the assumption that, when it is adjudicated in front of other NLRB officials, the General Counsel will win her case. Which would not be surprising because, according to an NLRB whistleblower, NLRB officials are trying to help the union win elections at Starbucks. There seems to be more than a bit of circular logic at play here, but the end result is that workers are being denied a chance to rid themselves of an unwanted union.
Making matters worse, though, is that Starbucks has attempted to bargain with the union. However, the union has resisted single-store bargaining (after insisting on single-store elections) and tried to negotiate in a hybrid format without disclosing who is on video. It takes two parties to participate in meaningful bargaining, but the Regional Director was not able to take this into account because she was “compelled” to assume that the General Counsel would win her Mar Jac remedy.
Adding further controversy to the whole situation, the SEIU, which is the union really behind the Starbucks campaign, has pledged to file blocking charges to prevent any decertification vote from taking place at any Starbucks location. This obstruction will only be abetted by a pending NLRB rulemaking known as the “Fair Choice and Employee Voice” rule. In it, the Board is seeking to do exactly what the SEIU wants by allowing a union to file a slew of unfair labor practice charges as soon as a decertification petition is filed, thereby blocking a vote by workers.
The particulars of the Starbucks case in Buffalo are less important than what it reveals about the NLRB’s direction as a whole. The agency seems very interested in making sure workers are brought into unions. But it seems even more concerned with making sure they can’t get out.
About the authors
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.