FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 22-1969
BOARD,
National Labor
Relations Board
Petitioner,
OPINION
v.
SIREN RETAIL CORPORATION
DBA STARBUCKS,
Respondent,
----------------------------------------
WORKERS UNITED,
Intervenor.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted December 6, 2023
Seattle, Washington
Filed April 24, 2024
2 NLRB V. SIREN RETAIL CORPORATION
Before: M. Margaret McKeown, N. Randy Smith, and
Gabriel P. Sanchez, Circuit Judges.
Opinion by Judge McKeown
SUMMARY *
Labor Law
The panel granted the National Labor Relations Board’s
application for enforcement of its order directing Starbucks
Reserve Roastery in Seattle to “cease and desist from failing
and refusing to recognize and bargain with the Union.”
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
Regional Director overruled the objection and certified the
results. 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.
The panel rejected Starbucks’s claim that the court
lacked jurisdiction over the enforcement application because
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NLRB V. SIREN RETAIL CORPORATION 3
the Board severed the question of whether to adopt a
compensatory remedy. The panel held that the Board’s
order was final and reviewable under 29 U.S.C.
§ 160(e). Nothing in the order suggested that the severed
issue would have any effect on the Board’s conclusion
regarding the underlying charge, nor on the order to bargain.
The panel held that the Regional Director did not abuse
his discretion when he faithfully applied Aspirus Keweenaw,
370 N.L.R.B. 45 (2020), and ordered a mail-ballot
election. Accordingly, the panel held that the Board
correctly applied its own law in determining that the
Regional Director appropriately exercised its discretion to
hold a mail-ballot election. The certification of the union’s
representative was proper, and the Board correctly found
that Starbucks violated Section 8(a)(5) by refusing to
bargain.
COUNSEL
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
4 NLRB V. SIREN RETAIL CORPORATION
PC, Seattle, Washington; Maury Baskin and Stefan
Marculewicz, Littler Mendelson PC, Washington, D.C.; for
Respondent Siren Retail Corporation dba Starbucks.
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
NLRB V. SIREN RETAIL CORPORATION 5
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 opinion 1 in Aspirus,” but “even under the
majority opinion in Aspirus, the Regional Director’s
1
Chairman McFerran’s “separate opinion” in Aspirus was a concurring
opinion which argued that the Board should abandon the general rule that
elections should be conducted manually. Aspirus, 2020 WL 6594972, at
*13–15.
6 NLRB V. SIREN RETAIL CORPORATION
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
2
This procedural posture results because election certification decisions
are not final orders under Section 10(e) or 10(f) of the NLRA, and thus
are not directly reviewable. See Boire v. Greyhound Corp., 376 U.S.
473, 476–78 (1964); NLRB v. Belcor, Inc., 652 F.2d 856, 858 n.2 (9th
Cir. 1981).
3
In the interim, in September 2022, the Board decided Starbucks Corp.
& Workers United, Petitioner, 371 N.L.R.B. 154 (2022), 2022 WL
4598534. Starbucks Corp. amended the standard laid out in Aspirus to
abandon reliance on COVID-19 positivity rates, instead adopting the
CDC’s Community Level metric for determining COVID-19 risk. Id. at
*2–4. However, because the Board found that applying Starbucks Corp.
retroactively in pending cases like this one “would work a manifest
injustice,” it declined to do so. Id. at *6.
NLRB V. SIREN RETAIL CORPORATION 7
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.
8 NLRB V. SIREN RETAIL CORPORATION
§§ 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 (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
4
The NLRA also allows “[a]ny person aggrieved by a final order of the
Board granting or denying in whole or in part the relief sought may
obtain a review of such order in any United States court of appeals . . .
by filing in such a court a written petition praying that the order of the
Board be modified or set aside.” 29 U.S.C. § 160(f). No such petition
was filed in this case.
NLRB V. SIREN RETAIL CORPORATION 9
merely tentative or interlocutory nature.” 520 U.S. at 177–
78 (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 (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, 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 issue from the other issues in the case renders the Board’s
decision nonfinal. The General Counsel requested the
compensatory remedy as an additional remedy. That remedy
10 NLRB V. SIREN RETAIL CORPORATION
is not linked—inextricably or otherwise—with the order “to
recognize and bargain with the Union.”
The D.C. Circuit, the only other court to address whether
severing the Ex-Cell-O issue from an NLRB enforcement
order renders the agency’s action nonfinal, made short work
of the issue: “That the Board severed a remedial issue for
future consideration does not affect our jurisdiction to
consider Longmont’s petition for review and adjudicate
issues that the Board has resolved.” Longmont United Hosp.
v. NLRB, 70 F.4th 573, 578 (D.C. Cir. 2023) (citing Stephens
Media, 677 F.3d at 1250). 5 Although the parties in
Longmont did not dispute the jurisdictional question—as
Starbucks correctly observes—that posture did not relieve
the court of its duty to assure itself of its subject-matter
jurisdiction before proceeding to the merits. See, e.g.,
United States v. McIntosh, 833 F.3d 1163, 1170 (9th Cir.
2016); Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1139
(9th Cir. 2013).
Our approach also mirrors other cases where we have
enforced a Board decision even when it severs or reserves
judgment on a separate issue. See, e.g., NLRB v. McMahon,
428 F.2d 1213, 1214 (9th Cir. 1970) (enforcing the Board’s
decision although the issue of whether and to what extent the
wrongfully discharged employee was entitled to backpay
remained; we noted that “[t]he backpay questions will be
considered during compliance proceedings”); Great Chinese
Am. Sewing Co. v. NLRB, 578 F.2d 251, 255–56 (9th Cir.
5
The Board has severed the Ex-Cell-O issue from several cases since
Longmont, including this one. The only other such case in this circuit,
NLRB v. Oakrheem Inc., was resolved without reference to the
jurisdictional issue raised here. NLRB v. Oakrheem, Inc., Nos. 23-47,
23-77, 2023 WL 8621974 (9th Cir. Dec. 13, 2023).
NLRB V. SIREN RETAIL CORPORATION 11
1978) (same); NLRB v. Int’l Ass’n of Bridge, Structural &
Ornamental Iron Workers, 600 F.2d 770, 778–79 (9th Cir.
1979) (enforcing a Board decision that reserved the issue of
the identity of the discriminatees, and holding that “the
Board acted in its discretion in reserving the issue until after
enforcement”).
On the other side of the ledger, the case law Starbucks
analogizes to is inapposite. Starbucks argues that “[i]f a
decision leaves substantive issues unresolved” then
jurisdiction is not available under Section 10(e), primarily
relying on Iron Workers. But Iron Workers says nothing of
the sort. In fact, the case acknowledges that “the Board has
typically taken a two-step approach” to backpay claims by
determining “whether an unfair labor practice has occurred
and whether backpay should be ordered” at the first step and
“the specifics of compliance” at the second step. 600 F.2d
at 778–79. In doing so, we observed that “[o]ften the only
issue for resolution at a compliance proceeding following a
backpay order is the computation of the amount to be
awarded.” Id. Iron Workers does not address whether a
court has jurisdiction over an enforcement decision where
the propriety of a particular remedy has been severed for a
later decision.
At bottom, Starbucks confuses the cosmic importance of
the severed issue with the finality of the unsevered decision.
Whether overruling Ex-Cell-O “represents a drastic and
ground-breaking departure from long-settled Board
precedent,” as Starbucks posits, the Board’s decision
conclusively determined that Starbucks committed unfair
labor practices under Section 8(a)(5) and ordered a final
remedy—namely, that Starbucks “cease and desist from
failing and refusing to recognize and bargain with the
Union.” Whether the Board may overrule Ex-Cell-O and
12 NLRB V. SIREN RETAIL CORPORATION
order an additional make-whole remedy for Starbucks’s
refusal to bargain does not negate the reality that the decision
“consummat[es]” the Board’s final statement on the
underlying violation and is one “from which legal
consequences”—the requirement to bargain with the
Union—“will flow” if enforced. Bennett, 520 U.S. at 177–
78.
Accordingly, we have jurisdiction under 29 U.S.C.
§ 160(e) and proceed to the merits of the Board’s application
for enforcement.
B. The Mail-Ballot Election
We next consider whether the Regional Director abused
his discretion when he applied Aspirus Keweenaw, 370
N.L.R.B. 45 (2020), and ordered a mail-ballot election.
Because the Regional Director and the Board faithfully
applied Aspirus, Starbucks’s abuse of discretion challenge
fails. 6
Our standard of review is well settled. We will enforce
an order of the Board if it “correctly applied the law and if
its factual findings are supported by substantial evidence in
the record as a whole.” Int’l Longshore & Warehouse Union
v. NLRB, 978 F.3d 625, 633 (9th Cir. 2020) (quoting Plaza
Auto Ctr., Inc. v. NLRB, 664 F.3d 286, 291 (9th Cir. 2011)).
“While we accord the Board’s interpretations of the NLRA
considerable deference, its legal interpretations must follow
Supreme Court and circuit case law, and absent explanation,
6
We do not need to address Starbucks’s passing reference in its brief to
a whistleblower complaint and Member Wilcox’s failure to recuse
herself. Starbucks waived these issues because it failed to specifically
and distinctly argue them in its opening brief. Miller v. Fairchild Indus.,
Inc., 797 F.2d 727, 738 (9th Cir. 1986).
NLRB V. SIREN RETAIL CORPORATION 13
adhere to its own precedent.” Id. (cleaned up). “Substantial
evidence supports a factual finding if a reasonable juror
could have reached the Board’s conclusion.” Id.
The Supreme Court has long recognized that the Board
has “a wide degree of discretion in establishing the
procedure and safeguards necessary to insure the fair and
free choice of bargaining representatives by employees.”
NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). The
Board has historically delegated “a portion of this authority
to the Regional Directors who have discretion to determine
election arrangements, including whether the election should
be conducted manually or by mail ballot.” Cast N. Am.
(Trucking) Ltd. v. NLRB, 207 F.3d 994, 999 (7th Cir. 2000)
(citing San Diego Gas & Elec., 325 N.L.R.B. 1143 (1998));
see also Kwik Care Ltd. v. NLRB, 82 F.3d 1122, 1126 (D.C.
Cir. 1996) (“As a general matter, the Board enjoys broad
discretion in its administration of representation elections,
and the party challenging the Board-certified results of an
election carries a heavy burden.”). 7 Two cases that frame
the boundaries of this discretion, San Diego Gas and Aspirus
Keweenaw, are at the heart of this dispute.
7
Starbucks contends that we owe no deference to the Board’s exercise
of discretion here because “the majority did not meaningfully explain its
reasoning,” and “the Board has no agency experience or expertise in
disease control, healthcare policy, or epidemiology.” Even a cursory
reading of the decision reveals that the Regional Director explained his
reasoning and application of Aspirus. Nothing required the Board or
Regional Director to have expertise in public health or epidemiology in
order to review data that may impact a union election. Starbucks cites
no authority that would allow us to override the Board’s “broad
discretion in its administration of representation elections,” Kwik Care,
82 F.3d at 1126, especially when the Board was required to adapt its
policies and procedures to an unprecedented public health emergency.
14 NLRB V. SIREN RETAIL CORPORATION
In San Diego Gas, the Board “adhere[d]” to the “general
rule [that representation elections] be conducted manually,”
but it also recognized “that there are instances where the
Regional Director, because of circumstances that would tend
to make it difficult for eligible employees to vote in a manual
election, may reasonably conclude that conducting the
election by mail ballot . . . would enhance the opportunities
for all to vote.” San Diego Gas, 325 N.L.R.B. at 1144. San
Diego Gas outlined some such “instances,” such as where
voters are “scattered” (either geographically or because their
schedules vary widely) or where there is a strike in progress.
Id. at 1145. But the Board “recognize[d] that there may be
other relevant factors that the Regional Director may
consider in making this decision” under “extraordinary
circumstances.” Id.
In Aspirus Keweenaw, the Board addressed the
application of San Diego Gas a to a new “extraordinary
circumstance[]”—the COVID-19 pandemic. Aspirus set
forth six factors, any one of which “will normally suggest
the propriety of using mail ballots under the extraordinary
circumstances presented by this pandemic.” Aspirus, 2020
WL 6594972, at *6. Only one factor is at issue in this appeal:
Whether “the 14-day trend in the number of new confirmed
cases of Covid-19 in the county where the facility is located
is increasing, or the 14-day testing positivity rate in the
county where the facility is located is 5 percent or higher.”
Id. at *7. 8 Aspirus noted that it focused on the “14-day trend
8
The other factors include: (1) whether “[t]he Agency office tasked with
conducting the election is operating under ‘mandatory telework’ status”;
(2) whether “[t]he proposed manual election site cannot be established
in a way that avoids violating mandatory state or local health orders
relating to maximum gathering size”; (3) whether “[t]he employer fails
or refuses to commit to abide by the GC Memo 20-10 protocols”;
NLRB V. SIREN RETAIL CORPORATION 15
in the number of new confirmed Covid-19 cases” because
President Trump’s “Guidelines for Opening Up America
Again” used that metric to ascertain whether COVID-19
conditions in a given area were “improving, deteriorating, or
remaining stable.” Id. at *8. Under Aspirus, Regional
Directors were to access county-level data via Johns
Hopkins University’s Coronavirus Resource Center, and if
the Regional Director based the decision on a different
geographic measure or different data source, the Director
was to “articulate the basis for relying on that measure.” Id.
at *8–9 & n. 22. Other than the guidance that “Regional
Directors should include in their decision the most recent
available county-level data regarding the 14-day trend,” and
that “the 14-day period should be measured from the date of
the Regional Director’s determination, or as close to that
date as available data allow,” Aspirus offers no further
instruction as to the manner in which the “14-day trend”
should be calculated. Id. at *7–8 & n.20.
Applying Aspirus in this case, the Regional Director
reviewed the then-available data via the Johns Hopkins
Coronavirus Resource Center and concluded that it
“report[ed] 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 contends that the Regional Director
misapplied Aspirus because Aspirus required a 14-day
rolling average rather than “focusing on a 2-day spike in
cases.” But Starbucks fails to put forth sufficient evidence
(4) whether “[t]here is a current Covid-19 outbreak at the facility or the
employer refuses to disclose and certify its current status”; and
(5) “[o]ther similarly compelling considerations.” Aspirus, 2020 WL
6594972, at *6–11.
16 NLRB V. SIREN RETAIL CORPORATION
to undermine the Regional Director’s application of Aspirus
or his conclusion that the 14-day trend in COVID cases was
increasing.
The fundamental problem with Starbucks’s argument is
that Aspirus does not actually define what a “14-day trend”
consists of or how a Regional Director should calculate it.
Aspirus references three components with respect to this
factor: (1) use of the Johns Hopkins data; (2) consultation of
“the most recent available county-level data regarding the
14-day trend,” and (3) measurement of “the 14-day period
. . . from the date of the Regional Director’s determination,
or as close to that date as available data allow.” Aspirus,
2020 WL 6594972, at *7–8 & n.20, n.22. Even so, the Board
made clear that Regional Directors are given discretion with
respect to the choice of data, and the Board does not mandate
a particular type of statistical analysis for calculating the
“14-day trend.” Id. Because “the Board . . . has delegated
to the Regional Directors discretion over the arrangements
for an election, including whether it should be conducted by
manual balloting or mail ballot,” we do not accept
Starbucks’s invitation to assume that Aspirus mandated a
particular calculation when it did not say so. Id. at *3.
Further, Starbucks has not demonstrated that the
Regional Director improperly ordered a mail-ballot election
based on the data available to him at the time of his decision,
which Aspirus required him to consult. Throughout its
briefing, Starbucks relies upon data from March 18 and
March 21 to show that the 14-day rolling average was
decreasing, but neither of these case counts would have been
accessible to the Regional Director on March 17, when he
issued the order. Starbucks faces the same issue when it
claims that the Regional Director should have used the
NLRB V. SIREN RETAIL CORPORATION 17
county-level data directly from the King County Department
of Health, discussing data posted as late as March 21.
Even if we credit Starbucks’s approach, which provides
a different lens for analysis, our standard of review does not
permit us to “displace the NLRB’s choice between two fairly
conflicting views.” Walnut Creek Honda Assocs. 2, Inc. v.
NLRB, 89 F.3d 645, 648 (9th Cir. 1996) (quoting Retlaw
Broad. Co. v. NLRB, 53 F.3d 1002, 1005 (9th Cir. 1995)).
“[T]he party challenging the Board-certified results of an
election carries a heavy burden,” Kwik Care, 82 F.3d at
1126, and Starbucks has failed to carry that burden here.
We hold that the Board correctly applied its own law in
determining that the Regional Director appropriately
exercised his discretion to hold a mail-ballot election. Thus,
the certification of the union’s representative was proper,
and the Board correctly found that Starbucks violated Section
8(a)(5) by refusing to bargain.
APPLICATION FOR ENFORCEMENT
GRANTED.