Starbucks Coffee Co.

National Labor Relations Board - Board Decisions

Oct 30, 2009

354 N.L.R.B. 876 (N.L.R.B. 2009)

354 NLRB No. 99
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Starbucks Corporation d/b/a Starbucks Coffee Com-
pany and Local 660, Industrial Workers of the
World. Cases 2–CA–37548, 2–CA–37599, 2–CA–
37606, 2–CA–37688, 2–CA–37689, 2–CA–37798,
2–CA–37821, and 2–CA–38187
October 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On December 19, 2008, Administrative Law Judge
Mindy E. Landow issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief. The Respon-
dent filed a reply brief.1
The National Labor Relations Board2 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions only to the extent consistent with

1 The Respondent’s request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S.
September 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564
F.3d 840 (7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S.
May 22, 2009) (No. 08-1457); Northeastern Land Services v. NLRB,
560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098
(U.S. August 18, 2009) (No. 09-213). But see Laurel Baye Healthcare
of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition
for cert. filed sub nom. NLRB v. Laurel Baye Healthcare of Lake
Lanier, Inc., __U.S.L.W.__ (U.S. September 29, 2009) (No. 09-377).
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions we adopt pro forma the judge’s findings
that the Respondent violated Sec. 8(a)(1) of the Act by prohibiting
employees from discussing the Union while off duty; discriminatorily
prohibiting employees at the Respondent’s Union Square East store
from using a company bulletin board to post items of a nonwork nature
including materials relating to the Union, and from entering the back of
the store; promulgating and maintaining a rule prohibiting employees
from talking about the Union while allowing other nonwork-related
this decision and to adopt the recommended Order as
modified.
The judge found, and we agree, that the Respondent
unlawfully implemented and enforced a rule prohibiting
employees from wearing more than one prounion button.
On at least two occasions, the Respondent enforced its
rule to require employees wearing two prounion buttons
to remove one before working. The judge found that
while the Respondent expected its employees to present a
certain image to the public, the Company not only coun-
tenanced but encouraged employees to wear multiple
buttons as part of that image. The record established that
employees, in fact, regularly wore numerous buttons and
pins on their hats and aprons, and the judge found, and
we agree, that those pins would not be immediately rec-
ognizable by customers as company-sponsored. Rather,
as the judge found, the image conveyed to the consumer
was merely that of employees wearing a variety of pins
and buttons. The union buttons at issue (approximately
1-inch in diameter and bearing the acronym “IWW”)
were no more conspicuous than the panoply of other but-
tons employees displayed. Consequently, on the facts of
this case, we agree with the judge that the Respondent
did not establish special circumstances justifying its one-
button rule. Nordstrom, Inc., 264 NLRB 698, 700
(1982). Thus, we find that the discriminatory prohibition
unlawfully interfered with employees’ Section 7 rights.4
We further adopt the judge’s findings, for the reasons
she stated, that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging baristas Joseph J.
Agins Jr. and Daniel Gross,5 and by issuing disciplinary

discussions; and promulgating and maintaining a rule prohibiting em-
ployees from talking about terms and conditions of employment. Also
in the absence of exceptions we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(3) and (1) of the Act by disciplining
employee Tomer Malchi pursuant to its unlawful rule prohibiting em-
ployees from talking about the Union while allowing other nonwork-
related discussions; discriminatorily preventing Malchi from working
shifts at other Starbucks locations; and issuing a written warning to
employee Daniel Gross on August 5, 2006. Finally, in the absence of
exceptions we adopt the judge’s dismissal of allegations that the Re-
spondent disparately enforced its dress code against employees Sulay
Ayala and Tomer Malchi and unlawfully interrogated employee Isis
Saenz.
4 See Holladay Park Hospital, 262 NLRB 278, 279 (1982) (by pro-
hibiting only the wearing of a particular union insignia (yellow ribbons)
while permitting other prounion and nonunion-related buttons, respon-
dent enforced dress code in a discriminatory manner, violating Sec.
8(a)(1)).
5 In finding the Respondent’s discharge of Agins violated the Act,
Member Schaumber adopts the judge’s analysis under Atlantic Steel,
245 NLRB 814 (1979), and therefore does not reach her analysis under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). Additionally, although he
finds that the Respondent unlawfully discharged Gross under the facts
here, Member Schaumber notes that the Act does not give employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
performance evaluations to Gross on January 29, April
14 and 29, and August 5, 2006.
As explained below, we reverse the judge’s finding
that the Respondent violated Section 8(a)(3) and (1) by
discharging barista Isis Saenz for participating with a
group of people who followed Regional Vice President
James McDermet for almost 2 city blocks after an Octo-
ber 26, 20066 union rally, shouting threats, taunts, and
profane comments at him.
Facts
Isis Saenz was a barista at the Respondent’s East 57th
Street store and an open union supporter. On the evening
of October 26, Saenz, along with two other current em-
ployees of the Respondent, participated in a boisterous
rally of at least 15 union members and supporters that
occurred both inside and outside of a Starbucks’ store at
29th Street and Park Avenue, where the Respondent was
holding a book promotion at which the Respondent’s
CEO and other executives were scheduled to appear.
Saenz and Charles Fostrum, a former employee, video-
taped the event. On Fostrum’s videotape, Saenz can be
heard yelling, “Hey Barbie Doll baristas” at employees
who were exiting the store. Regional Vice President
McDermet prepared to leave the store at about 8:30 p.m.
Former employee Daniel Gross instructed the demonstra-
tors not to touch him. Saenz echoed that but added, “Spit
on him.”7
As McDermet exited, the demonstrators began shout-
ing, taunting him, and chanting, “Shame, shame, shame.”
Saenz and approximately five others then broke away
from the rally and began to follow and shout at McDer-
met as he turned the nearby corner and walked toward
his home.8 Saenz and Fostrum continued to videotape
McDermet. As the group pursued McDermet, one or
more shouted remarks such as “We know where you
live,” “Fuck Starbucks,” “Stand up for yourself,” and
“We are following you now, boy.” Saenz did not make
any of these comments, but shouted “Jimmy, Jimmy,
why won’t you speak to us?; Why are you ignoring your
workers?;” and “Jimmy, spend some time with us,
Jimmy.” Saenz admitted at the hearing that she was also

license to tell their coworkers not to do their jobs. Chairman Liebman
finds it unnecessary to pass on whether the Atlantic Steel analysis or the
Wright Line analysis is the more appropriate test to apply given that
Agins’ discharge would be unlawful under either approach.
6 Dates are in 2006, unless otherwise noted.
7 A voice, which the judge could not determine belonged to Saenz,
also shouted, “Piss on him.” McDermet was still inside the store and
did not hear these remarks, however, and there is no evidence that the
Respondent knew of the comments when it discharged Saenz.
8 Of this group, only Saenz was a current employee.
chanting and laughing at McDermet.9 When McDermet
was about halfway down the block, two people joined
him (one a marketing manager for the Respondent) and
walked with him a short distance. Saenz and Fostrum
turned back shortly thereafter, having followed McDer-
met for close to 2 blocks. As she left, Saenz called, “See
you next time, Jim.” The few remaining demonstrators
continued to follow McDermet, but the shouting appar-
ently abated after Saenz left.
McDermet testified that he felt threatened and intimi-
dated and took a circuitous route away from his apart-
ment in an effort to get away from the people following
him. He testified that he filed a police report because
this was not the first time that he felt threatened or had
been threatened in connection with the organizing activ-
ity, and he wanted to establish a police record in the
event this harassment continued.
District Manager Veronica Park subsequently met with
Saenz and Partner Resources Manager Joyce Varino.
Saenz confirmed that she had attended the October 26
rally. She admitted calling McDermet “Jimmy, Jimmy,”
but told Park that she did not mean to be disrespectful,
and that she was just trying to get his attention. Saenz
conceded to Park that McDermet may have felt threat-
ened or intimidated, and that she “may” have heard
someone say, “We know where you live” to McDermet,
but that she did not know who. Park testified that she
discharged Saenz for her conduct in following McDer-
met “due to the fact that she was not following our guid-
ing principle of treating people with respect and dignity.”
Park testified without contradiction about other incidents
in which she terminated employees for being insubordi-
nate and disrespectful to other partners and supervisors.
Discussion
Because the Respondent discharged Saenz for her con-
duct following the October 26 rally, the appropriate
analysis is whether the Act initially protected her conduct
and, if so, whether she lost that protection at any point.
See Tampa Tribune, 351 NLRB 1324, 1325 (2007), enf.
denied on other grounds 560 F.3d 181 (4th Cir. 2009).
Although “employees are permitted some leeway for
impulsive behavior when engaged in concerted activity,
this leeway is balanced against an employer’s right to
maintain order and respect.” Piper Realty Co., 313
NLRB 1289, 1290 (1994). The Board applies a four-
factor analysis in determining whether conduct occurring
in connection with otherwise protected activity, such as
the rally, is of a nature sufficient to remove it from the

9 McDermet testified that some of those following him were carrying
sticks. Saenz testified that some had signs but did not think that she
was carrying hers when she followed McDermet.
STARBUCKS COFFEE CO. 3
Act’s protection: (1) the place of the discussion; (2) the
subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was in
any way provoked by an employer’s unfair labor prac-
tice. Atlantic Steel, 245 NLRB 814, 816 (1979).
Applying these factors, we find, contrary to the judge,
that while Saenz’ initial participation in the rally was
protected concerted activity, she lost the protection of the
Act when she left the rally and actively participated in a
group that shouted profanity at, taunted, and followed
McDermet at night for almost 2 blocks away from the
Starbucks facility.
The judge found that the place factor in the Atlantic
Steel analysis weighed in favor of protection because the
conduct occurred on a public sidewalk, Saenz and the
current employees engaged in the rally were off duty,
and there was no evidence that on-duty employees heard
her remarks. We disagree with the judge’s analysis. Her
focus on the off-duty status of the employees who wit-
nessed the misconduct is inconsistent with our precedent.
The location of an employee’s conduct weighs against
protection when the employee engages in insubordinate
or profane conduct toward a supervisor in front of other
employees regardless of whether those employees are on
or off duty.10 The question is whether there is a likeli-
hood that other employees were exposed to the miscon-
duct. Postal Service, 350 NLRB 441, 459 (2007). Here,
the answer is clearly yes. There were at least 15 demon-
strators involved in the rally, including at least 2 then-
current employees under McDermet’s authority. More-
over, as McDermet exited the store and walked through
the crowd that was taunting and shouting at him, Saenz
and at least five of her companions began to pursue him
in view of those present, including the two current em-
ployees who participated in the rally. This group contin-
ued to shout threatening remarks at McDermet as they
followed him, and Saenz continued to taunt McDermet
for approximately 2 blocks. In light of the public nature
of this misconduct, which commenced in plain view of
employees under McDermet’s authority, we find that the
place factor weighs against Saenz retaining the Act’s
protection.
We agree with the judge, and the Respondent does not
contend otherwise, that the second Atlantic Steel factor,
the subject matter under discussion, weighs in favor of
protection.

10 See Aluminum Co. of America, 338 NLRB 20, 22 (2002) (finding
employee’s sustained profanity in break room in presence of coworkers
would tend to undermine authority of supervisors subject to his verbal
attack); cf. Tampa Tribune, supra at 1326 (employee outburst away
from other rank-and-file employees did not undermine supervisor’s
authority).
Contrary to the judge, we find that the third factor, the
nature of Saenz’ conduct, weighs against protection. At
the outset, we disagree with the judge’s finding that
McDermet overstated the threatening nature of the inci-
dent. We find that a person in McDermet’s situation
would have reasonably been intimidated. He was being
followed at night by a group that was shouting at and
taunting him, as well as making intimidating statements
such as “We are following you now boy,” and “We know
where you live.” We further observe that the situation
appeared sufficiently threatening that two individuals
joined McDermet in an effort to provide an escort, and
that McDermet changed his route out of fear to escape
the people following him and subsequently filed a police
report.
As to Saenz’ actions, she was part of a group that tar-
geted McDermet and deliberately sought to intimidate
him.11 She followed McDermet for approximately 2
blocks away from the store, making comments such as
“Jimmy, Jimmy, why won’t you speak to us?” as others
directed profane and threatening remarks at him. Some
of these remarks personally targeted McDermet rather
than Starbucks in general and put him in reasonable fear
of continued intimidating behavior at his home. As she
admitted, Saenz knew that McDermet may have felt
threatened. Despite this, she persisted in following him
and making remarks that were clearly intended to intimi-
date. Her later explanation to Park that she was only
trying to get McDermet’s attention is not persuasive
given that, moments before following him, Saenz had
shouted at demonstrators to “spit on him”—surely an
attempt to incite others to misconduct. We find that the
third Atlantic Steel factor weighs against Saenz retaining
the Act’s protection.
As to the fourth Atlantic Steel factor, we find, as did
the judge, that it weighs against protection. There is no
evidence that the Respondent provoked Saenz’ miscon-
duct. Although we have found several unfair labor prac-
tices in this case, none were directed at Saenz, and the
most recent unfair labor practice prior to this incident
occurred 2 months earlier and at a store other than the
one where Saenz worked. Nor was Saenz spontaneously

11 The Board has recognized that employers may lawfully discipline
employees who engage in misconduct in concert with others. See
Auburn Foundry, Inc., 274 NLRB 1317, 1317–1318 (1985) (respondent
lawfully terminated striking employee who, although merely a passen-
ger in vehicle, was “in association” with others who engaged in high
speed chase to intimidate nonstriking employees), enfd. 791 F.2d 619
(7th Cir. 1986); see also Restaurant Horikawa, 260 NLRB 197, 197–
198 (1982) (employee who participated in demonstration by entering
respondent’s restaurant and thus disrupting business forfeited the Act’s
protection).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
reacting to a stressful situation such as a grievance meet-
ing, disciplinary action, or tense workplace situation.
In sum, we find that only one factor, related to the sub-
ject matter of the discussion, favors continued protection,
while the other factors weigh against it. Saenz thus en-
gaged in conduct that lost the Act’s protection. In so
finding, we emphasize that the element of deliberate in-
timidation distinguishes her behavior from the type of
spontaneous, provoked, and nonthreatening outbursts
that the Board has found protected in other cases.12 Ac-
cordingly, we reverse the judge and dismiss this allega-
tion.13
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Star-
bucks Corporation d/b/a Starbucks Coffee Company,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(d).
“(d) Implementing and enforcing a rule that unlawfully
discriminates against the wearing of prounion buttons.”
2. Substitute the following for paragraph 2(c) and
reletter the subsequent paragraphs.
“(c) Within 14 days from the date of the Board’s Or-
der, offer Joseph Agins Jr. and Daniel Gross full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.

12 See, e.g., Stanford Hotel, 344 NLRB 558 (2005) (spontaneous,
provoked outburst of profanity protected); Alcoa, Inc., 352 NLRB
1222, 1226 (2008) (spontaneous profanity in grievance meeting pro-
tected as it was not the product of a conscious decision to degrade
supervisor).
13 The judge found, and we agree, that Saenz’ conduct is appropri-
ately analyzed under Atlantic Steel, supra. We disagree with her further
conclusion that the Respondent’s discharge of Saenz would be unlawful
under a Wright Line, supra, analysis as well. Analysis under Wright
Line is inapplicable because it is undisputed that the Respondent dis-
charged Saenz for her conduct after the demonstration, and the only
issue is whether that conduct was protected. See Aluminum Co. of
America, supra at 22. Assuming arguendo that a Wright Line analysis
were appropriate, we would still dismiss the allegation because we find
that the Respondent met its rebuttal burden by showing that it would
have discharged Saenz regardless of her protected activities. The judge
relied on cases in which the Board found protected employee imperti-
nence toward managers that involved brief, spontaneous reactions to
workplace stress, such as cursing and refusing to follow directions. As
noted above, such conduct is distinguishable from the incident here.
Further, the Respondent showed that it had discharged employees for
disrespectful and insubordinate conduct toward managers in the past.
“(d) Respondent shall also make Agins and Gross
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the man-
ner set forth in the remedy section of this decision.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. October 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit you from discussing the Union
while off duty.
WE WILL NOT discriminatorily prohibit employees at
our Union Square East store from using a company bul-
letin board to post material of a nonwork nature, includ-
ing materials relating to the Union.
WE WILL NOT discriminatorily prohibit our off-duty
employees at our Union Square East store from entering
the back of the store.
WE WILL NOT implement and enforce a rule that
unlawfully discriminates against the wearing of prounion
buttons.
WE WILL NOT prohibit you from discussing the Union
while allowing other nonwork-related discussions.
WE WILL NOT prohibit you from talking about terms
and conditions of employment with your coworkers.
STARBUCKS COFFEE CO. 5
WE WILL NOT discipline you for talking about the Un-
ion while allowing other nonwork-related discussions.
WE WILL NOT discriminatorily prevent you from work-
ing shifts at other Starbucks locations.
WE WILL NOT issue written warnings or negative em-
ployment evaluations to you because you support the
Union or because of your other concerted, protected ac-
tivities.
WE WILL NOT discharge you because of your support
for the Union or your other concerted, protected activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any discipline issued to
Tomer Malchi pursuant to a discriminatory rule prohibit-
ing employees from talking about the Union, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the discipline will not be used
against him in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files employment evaluations to
Daniel Gross January 29, April 14 and 29, and August 5,
2006, and a corrective action issued to him on August 5,
2006, and WE WILL, within 3 days thereafter notify Gross
in writing that this has been done and that the employ-
ment evaluations and discipline will not be used against
him in any way.
WE WILL make Gross whole for any loss of earnings
and other benefits suffered as a result of the aforemen-
tioned performance evaluations.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joseph Agins Jr. and Daniel Gross full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Joseph Agins Jr. and Daniel Gross
whole for any loss of earnings and other benefits suffered
as a result of their discharge, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Joseph Agins Jr. and Daniel Gross, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that the discharges will not be
used against them in any way.
STARBUCKS CORPORATION D/B/A STARBUCKS
COFFEE COMPANY
Burt Pearlstone and Audrey Eveillard, Esqs., for the General
Counsel.
Daniel Nash, Stacey Eisenstein, and Nicole Morgan, Esqs.
(Akin Gump Strauss Hauer & Feld, LLP), of Washington,
D.C., for the Respondent.
Stuart Lichten, Esq. (Schwartz, Lichten and Bright), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. Commenc-
ing on March 14, 2006, Local 660, Industrial Workers of the
World (the IWW or the Union) filed charges and amended
charges against Starbucks Coffee Corporation d/b/a Starbucks
Coffee Company (Starbucks or Respondent) alleging, among
other things, that Respondent interrogated employees, imple-
mented new policies, more strictly enforced old policies, and
disciplined and discharged employees in retaliation for employ-
ees’ support of the Union and other concerted, protected con-
duct. On June 12, 2007, the Regional Director for Region 2,
issued an order further consolidating cases, consolidated com-
plaint and notice of hearing. The Respondent filed an answer
denying the material allegations of the complaint, and raising
certain affirmative defenses. This case was tried before me in
New York, New York, over the course of 20 days between July
9 and October 25, 2007. During the course of the hearing,
counsel for the General Counsel made various amendments to
the complaint,1 and Respondent filed an amended answer,
again, denying the material allegations of the complaint, as
amended, and reiterating its general affirmative defenses.2

1 Specifically, at various times throughout the hearing Counsel for
the General Counsel moved to amend pars. 5(a), 8, 10, 12(b) and (c),
14(e), 15(b), 17(a), 20, 21, 22, and 23(a), and such motions were
granted. In addition, I reserved ruling on the General Counsel’s motions
to amend pars.11 and 18(b), as discussed below.
2 At the inception of the hearing, counsel for the General Counsel
requested that Respondent specify which allegations of the complaint
were being challenged by Respondent’s affirmative defenses, and reit-
erated this request at the close of its case-in-chief. Respondent declined
on both occasions, and does not raise any such claims in its posthearing
brief. It is well settled that the party raising an affirmative defense bears
the burden of proof. As Respondent has failed to specify those allega-
tions of the complaint which it is contesting on this basis or to cite any
evidence to support the general assertions contained in its answer, I
conclude that it has failed to meet its burden of proof in this regard. In
its answer to the complaint, Respondent has further asserted that certain
complaint allegations were not encompassed by the charges filed by the
Union. A charge is not a pleading and does not require the specificity of
a pleading. It merely serves to initiate a Board investigation to deter-
mine whether a complaint should be issued. NLRB v. Fant Milling Co.,
360 U.S. 301, 307 (1959). A charge “is sufficient if it informs the al-
leged violator of the general nature of the violation charged against him
and enables him to preserve the evidence relating to the subject matter.”
NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 704, 705 (8th Cir. 1967).
Here, I find that the charges and amended charges filed by the IWW are
sufficient in this regard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
On the entire record, including my observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by counsel for the General Counsel4 and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a domestic corporation with places of
business located 200 Madison Avenue (36th Street), 145 Sec-
ond Avenue (9th Street), 15 Union Square East (Union Square
East), and 116 East 57th Street (57th Street), New York, New
York, where it is engaged in the operation of retail coffee
shops. Annually, in the course and conduct of its business op-
erations, Respondent derives gross revenues in excess of
$500,000 and purchases and receives goods and supplies valued
in excess of $5000 at each of the facilities described above,
directly from suppliers located outside the State of New York.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the National Labor Relations Act (the Act). Respondent further
admits, and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Starbucks Corporate Structure and Retail Stores
Starbucks Coffee Company (Starbucks or Respondent) oper-
ates retail coffee stores throughout the United States. Starbucks
has numerous stores throughout New York City including the
four locations noted above which are primarily involved herein.
These stores are part of the New York Metro region, which in
turn is comprised of a number of “districts” which each contain,
on average, eight to nine stores. Each district is managed by a
district manager (DM) who reports to a regional director (RD)
who is responsible for several districts. The regional directors
report to the regional vice president. James McDermet was the
regional vice president of the New York Metro region from
April 2005 until September 2007, at which time six regional
directors reported directly to him.
Traci Wilk has been the director of partner resources for the
New York Metro region since January 2007. Previously, she
served as partner resource manager for 4 years. Her area of
responsibility included the downtown Manhattan stores at all
relevant periods of time.5 The partner resources department
coordinates employment and policy issues relating to the stores
and its employees. According to Wilk, the partner resources
department is not the primary decision maker in regards to
termination decisions or policy implementation but, rather, may
be consulted and will provide a recommendation when a store

3 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or because
it was inherently incredible or unworthy of belief.
4 In its posthearing brief, counsel for the General Counsel moved to
withdraw pars. 8, 13, and 20 of the complaint. This motion is granted.
5 Wilk was on leave during the period from February to July 2004.
manager has questions about the implementation of a store
policy or the imposition of employee discipline. In general,
such decisions are the primary responsibility of the store man-
ager. The role that the partner resources department in general,
and Wilk in particular, has played in the determination of the
discipline at issue herein, is discussed below.
Starbucks stores are staffed by employees known as “part-
ners,” consisting primarily of hourly employees known as “ba-
ristas” and shift supervisors. Generally, the duties of these two
classifications of employees include preparing beverages, proc-
essing customer payments, cleaning and stocking the store, and
product merchandizing. Each store has a store manager (SM)
and, in many cases, one or more assistant store managers
(ASMs).
B. The Industrial Workers of the World and its Attempt
to Organize Employees
In 2004, the IWW launched a campaign to organize the em-
ployees of Starbucks. On May 17, 2004, former Starbucks ba-
rista Daniel Gross filed a representation petition with the Board
on behalf of the IWW6 seeking to represent employees located
at the 36th Street store. The IWW withdrew its petition on July
29, 2004. Since that time, there have been no further attempts
to invoke the Board’s processes in a representational capacity.7
The Union has, however, conducted various protests and other
public demonstrations during the past several years. These ac-
tions included leafleting at various Starbucks stores, telephone
calls made to various members of Starbucks management, pub-
lic statements to the media, the launch of a union Website, and
as discussed below, several large demonstrations outside vari-
ous Starbucks facilities. According to the testimony of several
Starbucks managers, such demonstrations were at times disrup-
tive of store operations, and intimidating to store personnel and
customers.8
C. Starbucks Coordinates its Response to the IWW
The record reflects that Starbucks developed both a local and
national response to the IWW’s attempts to organize employ-
ees. Locally, Wilk, in conjunction with the New York Metro
partner resource team, was centrally responsible for collecting
and disseminating information regarding the union activities of
employees and the level of union support in the stores. Among
other things, managers of stores where union activity was sus-
pected conducted standardized interviews of employees in an
attempt to gauge employee satisfaction with their employment
circumstances and to identify possible or likely union support-
ers. Employees who expressed a desire not to affiliate with the
IWW were termed “pro-Starbucks” and lists of known union

6 The Union also refers to itself as the “Starbucks Workers Union.”
7 It is not contended that the IWW represents a majority of employ-
ees in any appropriate unit.
8 According to Respondent, IWW supporters at times engaged in
conduct such as spitting at managers, name calling, various acts of
vandalism, and blocking access to the stores. In addition, the leaflets
distributed by the IWW frequently contained the phone numbers of
managerial personnel. According to several Respondent witnesses, they
received phone calls from unidentified apparent IWW supporters,
which were, at times, threatening in nature.
STARBUCKS COFFEE CO. 7
supporters as well as “pro-Starbucks” partners were main-
tained. If a store where union activity was suspected needed
personnel, Respondent would transfer known “pro-Starbucks”
partners, rather than hire new employees.
Wilk both received and disseminated weekly summaries of
the activities of union supporters and created spreadsheets to
track union support. Wilk further issued memoranda to store
managers requesting to review the performance evaluations of
and to be informed prior to the discipline of any known or sus-
pected union supporter.9 Respondent disseminated what infor-
mation it received regarding off-duty employee gatherings,
such as parties, where recruiting was suspected. Respondent
also established standards and procedures for the discipline and
separation from employment for union supporters. Wilk con-
ducted seminars with managers in which they discussed what
can and cannot be done in stores where employees are asking
questions about unionizing. She, along with others, prepared
written guidance regarding the Company’s position on unions
to provide managers with resources to turn to in the event ques-
tions arose. Managers were instructed not to take retaliatory
actions against employees who expressed their support for the
Union.
As Wilk testified, these efforts also stemmed from the vari-
ous unfair labor practice charges filed by the IWW. As such
charges began to be filed, commencing shortly after the orga-
nizing campaign began during the summer of 2004, Wilk be-
came involved with store managers “both proactively and reac-
tively” to assist them with employment issues that arose as a
consequence of the IWW’s activities. Thus, her instructions to
review performance reviews or termination decisions prior to
implementation stemmed from an asserted effort to ensure that
these were administered in the manner as they would be if chal-
lenged by any employee, whether a union supporter or not.10
Wilk and McDermet also issued memoranda to managerial
personnel relaying information that was posted on the Union’s
Website. This information was received on a regular basis from
the Starbucks media department, which informed upper-level
management of any print, internet or television segments re-
lated to Starbucks and its stores, whether union related or not.
In addition, Starbucks also employed the services of a media
consultant to review and respond to any negative publicity
caused by the Union’s public demonstrations and various press
releases. When union-sponsored protests or rallies took place,
Respondent increased management presence in the targeted
stores, to ensure that on-duty employees had the support they
required.

9 For example, in a December 1, 2004 memorandum, Wilk stated
that: “Going forward any corrective action that is issued to any sus-
pected salts will pass through me as we need to ensure that we are
being consistent and fair in our treatment of performance opportuni-
ties.”
10 Wilk initially testified that she did not review all termination deci-
sions prior to implementation, as there were too many. In its brief,
however, Respondent appears to take the contrary position: that Wilk’s
review of partner personnel files “was consistent with her practice of
reviewing the performance of any partner before recommending any
termination.”
According to Respondent, the steps taken with respect to the
IWW mirrored those taken in response to protests conducted by
nonunion groups and were part of an overall effort to ensure
employee safety and minimize disruption to business. In par-
ticular, Respondent cites to protests by two groups unrelated to
the IWW. One involved “Reverend Billy,” an individual who
has presented himself at various Starbucks stores, performing
“musical acts” to lodge protests against the Company. When
Respondent became aware of a planned “Reverend Billy” pro-
test in February 2006, various managerial personnel were pre-
sent at the store to lend support to the store employees. Re-
spondent’s partner and asset protection (P&AP) department
was notified, and police were notified as well. A memorandum
was circulated outlining the preparation that was undertaken
and the Company’s potential responses to the protest. On an-
other occasion, there was a planned protest by the Organic
Consumers Association (OCA) and Regional Director (RD)
Wendy Beckman and other managers were present in the stores
to lend support to partners.
D. The Alleged Discriminatees
The allegations of the instant case involve, among other
things, disciplinary warnings issued to Suley Ayala, Tomer
Malchi, and Daniel Gross as well as the discharges of Gross,
Joseph Agins Jr., and Isis Saenz. The following will briefly
place their tenure of employment in context and explain the
general nature of the discipline imposed. More detailed discus-
sion of these matters will follow below.
1. Joseph Agins Jr.
Agins, who worked at the 9th Street store as a barista, was
hired in or about May 2004 and discharged on December 12,
2005. Agins first learned about the Union some time in 2004,
and asked his then-store manager about it. He was cautioned
not to speak about the Union. In April 2005, Agins was identi-
fied as a likely union supporter by his district manager (DM),
William Smith. On April 25, Smith wrote to Wilk that his iden-
tification of Agins as a supporter was “based upon attitude,
attending last party, friend of Alex11 and requested off for the
new party.”
Subsequently, on May 28, 2005, a petition in support of the
Union containing the names of several employees was pre-
sented to ASM Tanya James. Agins’ name was among those
listed. After this time, Agins was an active participant in many
union rallies and protests. Respondent has argued that Agins’
discharge was prompted by an inability to maintain his compo-
sure while working and, in this regard, has pointed to certain
instances where it is alleged that Agins behaved in an insubor-
dinate manner during which he used profanity.
2. Suley Ayala
Ayala began working for Starbucks at the Union Square East
location in July 2002. She joined the IWW in about November
2005, and was part of a public announcement of employee sup-
port for the Union. She thereafter openly participated in a num-
ber of union-sponsored rallies and protests. At issue herein are

11 Alex Diaz, an employee at the 9th Street store, had been identified
as a union supporter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
certain warnings and other disciplinary actions taken toward
Ayala for what Respondent has claimed is her failure to follow
its dress code and the instructions of her superiors with regard
thereto. Ayala resigned from her employment with Starbucks in
May 2007.
3. Daniel Gross
As noted above, Gross filed the initial representation petition
seeking to represent employees at the 36th Street store, where
he worked as a barista from May 2003 until his discharge on
August 5, 2006. Gross’ extensive history of union activities is
not disputed. Respondent asserts that he was discharged due to
a history of poor work performance. Also at issue herein are
several performance evaluations as well as a disciplinary warn-
ing issued to Gross, for claimed harassment of a Starbucks
manager. The General Counsel has additionally alleged, in
connection with this incident, that Gross was unlawfully inter-
rogated and threatened with discharge.
4. Tomer Malchi
Malchi worked at the Union Square East store from April
2005 until his resignation in July 2007. He joined the Union in
about May 2005, although his union activities were minimal
and apparently not known to management at the time. Later that
year, he began openly discussing the Union with coworkers and
took part in the official announcement of union support at that
store on November 18. The General Counsel has alleged that
Respondent engaged in a series of discriminatory actions
against Malchi including selectively enforcing its dress code
and solicitation policies and by issuing a series of written warn-
ings and prohibiting Malchi from working at other Starbucks
locations.
5. Isis Saenz
Saenz worked as a barista at the 57th Street store for some-
what over 1 year. She became a member of the IWW in about
March 2006, and thereafter openly participated in various union
activities. She was discharged on October 26, 2006. Respon-
dent contends that Saenz was discharged due to disrespectful,
threatening, and profane conduct exhibited toward Regional
Vice President James McDermet during the course of a union-
sponsored rally.
E. Presettlement Background Evidence Cited by
the General Counsel
As will be discussed below, in March 2006, Respondent en-
tered into a settlement agreement with the General Counsel
which resolved various outstanding unfair labor practice
charges filed by the IWW. The General Counsel relies on cer-
tain presettlement incidents as background evidence as follows.
1. The union announcement at the 9thh Street store
On May 28, 2005, employees at the 9th Street store formally
announced their union membership. Barista Peter Montalbano,
together with two coworkers, Laura DeAnda and Carolyn Li-
vensperger, approached ASM Tanya James with a letter signed
by other employees, including Agins, who had authorized their
names to appear on the document. Montalbano presented the
letter to James and asked her to forward it to upper manage-
ment. Montalbano then clocked in, put on union pins, and be-
gan to work. Approximately 20 minutes later a small group of
IWW supporters, including Sarah Bender, an employee and
union supporter who had previously been discharged, gathered
outside the store and began handing out fliers to customers and
passersby.12 Montalbano approached James in the back room
and told her that employees were trying to improve working
conditions. James stated that she understood and that it was fine
with her if they joined the Union so long as they did not harass
partners or engage in solicitation on the floor.
Some time later that day SM Julian Warner and DM William
Smith arrived at the store. Smith directed Montalbano, DeAnda,
and Livensperger to remove their union pins. After being ques-
tioned by Montalbano, Smith stated that he was requiring them
to remove the pins because they were not Starbucks-issued.
After Montalbano unsuccessfully tried to get Smith to change
his mind, the employees complied with Smith’s directive.
Agins, who was on vacation at the time, subsequently ap-
proached SM Warner to announce that he was a member and
supporter of the IWW.
2. The June 2005 demonstrations
In June 2005, the IWW organized two demonstrations in
front of a store located at 1st Avenue and 17th Street (the 17th
Street store), in protest of Bender’s termination. The first took
place on June 4 and lasted for approximately 2 hours. Employ-
ees participating in this event included Gross, Malchi, Montal-
bano, and DeAnda (as well as Bender). Also present were
members of other community organizations and a NBC televi-
sion crew. All told, there were approximately 20 to 30 demon-
strators present, wearing union insignia, chanting, handing out
leaflets, and holding signs. DM Smith, along with other mana-
gerial personnel, was present and witnessed this event.
At some time after June 4, Montalbano, along with three
other employees including Agins, returned to the 17th Street
store to distribute fliers to passersby announcing another dem-
onstration, scheduled for June 18. The police arrived and in-
formed the leafleters that the sidewalk was private property and
they had to disband. The employees went to the rental office of
the apartment complex where the Starbucks facility was located
and were told that the sidewalk was public property. They then
returned to 17th Street store and resumed their distribution of
fliers. Although the police were again summoned, the officers
permitted the leaflet distribution to continue.
On June 18, a second demonstration was held at the 17th
Street store. It lasted for about 3 hours and there were approxi-
mately 20 to 30 demonstrators present including Gross, Malchi,
Montalbano, DeAnda, and Bender. Again, the demonstrators
wore union insignia, chanted, held picket signs, and distributed
leaflets. At about 3 p.m., they proceeded to the 9th Street store
where they encountered DM Smith and SM Warner accompa-
nied by several police officers. Initially, the group was told they
could not picket or leaflet, but the police apparently changed
their position, because the demonstration proceeded. Agins,
who was working that afternoon, joined the group once his shift
was completed. Montalbano left the group at about 5:30 p.m. as

12 Among other things, the fliers were in protest of Bender’s dis-
charge. Bender was subsequently reinstated as a result of the March
2006 settlement.
STARBUCKS COFFEE CO. 9
he was scheduled to work that day. Customers asked about
what was going on outside the store. Montalbano explained to
the customers that he was a member of the IWW and that a
union demonstration was taking place outside the store. Ac-
cording to Montalbano, Smith stated: “Now Peter, you know
better than that, you’re on our time now.” Subsequently, when
customers asked Montalbano about what was occurring outside
the store, he advised them that he was unable to speak with
them about it and if they wanted information they could speak
to the leafleters outside for information. According to Montal-
bano, Smith ordered him to clock out for his refusal to cease
speaking about the Union.
3. The announcement at the Union Square East store
By November 2005, Malchi had successfully approached
about half his coworkers at the Union Square East store, includ-
ing Ayala, about joining the Union. They decided to make their
union affiliation known to management. On November 18, a
number of employees including Malchi, Ayala, Gross, and
Montalbano met at a nearby location, put on union buttons and
headed to the store to present a letter to management. Certain
members of the group went inside, others remained outside to
hand out fliers. SM Michael Quintero met with the group and
Malchi handed him a letter containing a “list of demands.”
Malchi asked Quintero to forward the letter to upper manage-
ment and further requested a meeting to discuss matters such as
work hours and individual grievances. Quintero asked if anyone
else had something to say, and various individuals spoke. Mal-
chi told Quintero not to take this personally, that employees
really liked him and the employees’ problems stemmed from
company policies. Quintero told the employees to return to
work. Malchi pressed for a meeting, and Quintero stated that he
would get back to him. The following Monday, Quintero in-
formed Malchi that upper management would not meet with a
group of employees to discuss the issues raised by the letter.
4. Respondent requires employees to remove
union buttons
In late November 2005, Montalbano received a call for ad-
vice from DeAnda who had worn a union pin to work that
morning and had been told that if she did not remove it, she
would be sent home. Montalbano later learned that DeAnda had
been sent home and Montalbano told DeAnda that he would
wear a union pin during his shift later that day to support her.
Montalbano wore a union pin as he commenced working his
shift later that day. He was summoned to the back room of the
facility by SM Warner and was ordered to remove the pin.
Montalbano stated that it was unlawful to require him to re-
move the pin and Warner replied that a refusal to remove the
pin would be insubordination. Montalbano was offered the
option of removing the pin or clocking out. He chose the latter
option.
5. The “Black Friday” demonstration
In the retail industry, the day after Thanksgiving is often re-
ferred to as “Black Friday,” as it is one of the busiest shopping
days of the year. In 2005, Black Friday occurred on November
25. The Union had organized a demonstration in front of the
Union Square East store in protest of management’s refusal to
meet with employees at that store and to publicize the various
unfair labor practice charges filed by the Union which, at the
time, were under investigation. The demonstration began at
about 7 a.m. and there were several individuals present
throughout the day, handing out fliers. By about 6 p.m. the
number of demonstrators had swelled to at least 30 people.
These included Malchi, DeAnda, Gross, Montalbano, Bender,
Agins, and Ayala. The demonstrators chanted and held picket
signs. According to the testimony of various Respondent wit-
nesses, at times the protestors crowded by the door, blocking
access, or impeding customers from leaving the store. On this
occasion, the union supporters also held a press conference, and
a number of employees including Gross, Malchi, and Ayala
spoke on behalf of the demonstrators.
At some point during the afternoon, Malchi looked through
the store’s plate glass window and observed RD Wendy Beck-
man sitting at a table with McDermet, DM Kim Vetrano, and
SM Quintero. Robert Ayala, who is married to Suley, was
sitting at an adjacent table, waiting for his wife to complete her
shift. As Robert Ayala testified, he overheard these managers
discussing the protest. At the time, Robert Ayala had met
Quintero and recognized one of the other female individuals as
someone he had seen at Starbucks’ corporate offices. He over-
heard one of the individuals at the table, who was later identi-
fied to him as RD Wendy Beckman, state, “We should fire
them all.” According to Robert Ayala, Quintero told this indi-
vidual that they could not do that. When Ayala got off work,
Robert reported to her what he had overheard, and Ayala
named and identified the individuals as members of Starbucks
management.
Beckman denied making this comment, stating that she
would never do such a thing or behave in such a fashion. Nei-
ther McDermet, Vetrano, nor Quintero, who all testified herein,
was asked about this matter.
6. The March 2006 settlement agreement
On March 7, 2006, Starbucks entered into an informal set-
tlement agreement with the Board, settling various unfair labor
practice charges previously filed by the Union. Shortly thereaf-
ter, the Union commenced filing a series of new unfair labor
practice charges, some of which are the subject of the instant
complaint.13 Among the allegations initially settled, several are
relevant to the instant matter. In particular, Respondent agreed
to revise its solicitation policy and its policy prohibiting the

13 Although a number of the allegations of the instant complaint pre-
date the settlement agreement, it was specifically provided therein that:
“[i]t does not preclude persons from filing charges, the General Coun-
sel from prosecuting complaints, or the Board and the courts from
finding violations with respect to matters which precede the date of
approval of this Agreement regardless of whether such matters are
known to the General Counsel or are readily discoverable. The General
Counsel reserves the right to use the evidence obtained in the investiga-
tion and prosecution of the above captioned case(s) for any relevant
purpose in the litigation of this or any other case(s), and a judge, the
Board and the courts may make findings of fact and/or conclusions of
law with respect to [the] evidence.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
wearing of buttons or pins. The revised policies14 provide as
follows:
Distribution Notices/Soliciting
Partners are prohibited from distributing or posting in any
work areas any printed materials such as notices, posters or
leaflets. Partners are further prohibited from soliciting other
partners or nonpartners in stores or Company premises during
working time or the working time of the partner being solic-
ited.
Pins
Partners are not permitted to wear buttons or pins that advo-
cate a political, religious or personal issue. The only buttons
or pins that will be permitted are those issued to the partner by
Starbucks for special recognition or advertising a Starbucks-
sponsored event or promotion; and reasonably-sized and—
placed buttons or pins that identify a particular labor organiza-
tion or a partner’s support for that organization, except if they
interfere with safety or threaten to harm customer relations or
otherwise unreasonably interfere with Starbucks public im-
age.
F. Postsettlement Union Activity
1. Employees announce their union affiliation at
the 57th Street store
In June 2006, Charles Fostrum and Isis Saenz, who were the
primary union supporters at the 57th Street store, decided to
make their support known to SM Patrice Britton. They drafted a
letter setting forth their concerns regarding working conditions
at the store. The following day, June 16, Saenz approached two
coworkers, told them of the planned announcement, obtained
their signatures on the letter and gave them union buttons to
wear at the time of the declaration.
At approximately 2:30 p.m. a group of about five IWW
members and supporters, including Malchi, entered the store
wearing union insignia. They situated themselves in an open
space near the seating area, and some purchased Starbucks
products. As they entered, Saenz put an IWW pin on her hat.
Saenz and Fostrum then approached Britton with the letter,
signed by four employees. Britton refused to accept it.15
Fostrum then made a general announcement to the effect that
this was an action by the Starbucks Workers Union, that em-
ployees had been treated badly by management, that turnover
was at 400 percent, that safety concerns were being ignored,
and that paychecks were being tampered with. Britton at-
tempted to get Fostrum to quiet down, but the matter ended in
an argument. Saenz returned to work, and shortly thereafter
Britton instructed her to pull her till and clock out for the day.
He issued the same order to Fostrum. Both employees refused

14 Starbucks issued a memorandum addendum in April 2006 detail-
ing these policy changes, which was distributed to partners at all stores
covered by the settlement agreement, which included the 36th, 17th, and
9th Street stores. These revised policies were later included in the next
published version of the Starbucks’ partner guide.
15 Starbucks had implemented a policy whereby managers were not
to accept documents from IWW supporters.
and continued working. Fostrum and Britton resumed their
argument.
DM Veronica Park then entered the store and ordered the
group of IWW supporters to leave, which they did. Park then
instructed Saenz to pull her till and go to the back office, and
she complied. Fostrum, Park, and Britton were already there
when Saenz arrived. Saenz explained that Britton had told them
to clock out and that she felt it was antiunion discrimination.
Britton was still upset, and Park encouraged him to calm down.
Park decided that both Fostrum and Saenz should return to
work and finish their shifts. Toward the end of her shift, Saenz
approached Park, who was still in the office, with the letter
signed by employees. Park refused to accept it, and Saenz left it
on the desk.
2. The IWW’s “Nutrition Initiative”
Commencing in about April 2006, the IWW commenced
what it termed a “nutritional initiative” in which it openly criti-
cized the dietary value of certain Starbucks products. The Un-
ion engaged the services of two individuals to conduct a study
of certain menu items. The IWW then issued a press release
with their findings. The press release was issued in June 2006,
and was initially picked up by Reuters. Gross, who had been
involved in this effort, was quoted. This in turn, sparked a cer-
tain amount of coverage by other media outlets and IWW sup-
porters including Gross, Malchi, and Saenz were interviewed
outside the 57th Street store. The publicity generated by the
IWW’s efforts in this regard caused Starbucks to coordinate a
media response to the Union’s allegations, and various memo-
randa were circulated relating to how the Company should
respond to press and employee inquiries regarding this issue.
3. The 14th Street demonstrations
In July 2006, there were several union-sponsored events held
at a Starbucks facility at 14th Street and 6th Avenue (the 14th
Street store) in response to the suspension of Shift Supervisor
Evan Winterscheidt, an employee at the store and member of
the IWW.
On July 14, Winterscheidt, along with Bender and Montal-
bano, and a number of other employees visited the store and
attempted to collect signatures on a petition in support of Win-
terscheidt. As Winterscheidt spoke with coworkers, Montal-
bano and Bender sat in the café area. SM Mariah Dunham told
Winterscheidt that he was not allowed to be there while on
suspension, and he left. Montalbano and Bender remained be-
hind. Shortly thereafter, DM Allison Marx arrived at the store.
Montalbano introduced himself, stating that he was a member
of the Starbucks Workers Union. Marx replied that there was
no Starbucks Workers Union. According to a report of the inci-
dent provided to Wilk by RD Beckman, Montalbano and
Bender tried to continue the discussion, but Marx told them that
if they needed to speak with her, her business cards were avail-
able at the register. Montalbano and Bender then stood in line,
ordered beverages and sat down to read the paper.
On July 15, there was another protest relating to the Winter-
scheidt suspension, initially attended by Winterscheidt, Bender,
and Gross. District Managers Marx and Schueler arrived and,
as they were making their way into the facility, Gross had an
interaction with Marx, and thereafter received a corrective ac-
STARBUCKS COFFEE CO. 11
tion for his comments and conduct. The General Counsel has
alleged that this corrective action is discriminatory, and the
circumstances surrounding this incident will be discussed in
further detail below. Later during the protest, others joined the
group who were holding signs and handing out leaflets to
passersby. At some point the police arrived, entered the store,
and consulted with Marx. The police then told the group that
they could not demonstrate without a permit. Gross and
Montalbano attempted to convince the police otherwise, but
were unsuccessful. The group disbanded.
Subsequently, Montalbano was told by DM Karen Schueler
that neither he nor Bender would be allowed to enter the 14th
Street store. He requested a meeting with Schueler and asked
why he would not be allowed in the store. According to
Montalbano, Schueler replied that it was not her district, and
she didn’t know. Schueler, who testified at the hearing, offered
no testimony regarding this issue.
Employees continued to leaflet and demonstrate outside the
14th Street store to protest Winterscheidt’s suspension. Malchi
testified that on one occasion in July he was outside the store,
handing out fliers with Fostrum and Winterscheidt. Marx came
outside and told Malchi that he could not be in front of the
store. Malchi replied that he was allowed to be in front of the
store and the leafleting would stop only when Winterscheidt
was rehired. On another occasion, Malchi was leafleting with
DeAnda, Winterscheidt, and Fostrum. The police arrived and
told the group that they could not block the entrance to the
store. The officers then entered the store and exited with Marx
a few minutes later. They again told the group that they could
not block the door, and the leafleters agreed to move further
back from the doors.
At some point during this general timeframe, a larger rally
was held at the 14th Street store attended by Gross, Bender,
Malchi, Winterscheidt, Fostrum, Saenz, and several other IWW
members or supporters. The demonstrators wore IWW shirts
and buttons; they chanted, held signs, and distributed leaflets.
Saenz testified that during this demonstration she observed
approximately five Starbucks managers sitting at a table inside
the store, near the front, while the protest continued.
4. The Occupational Safety and Health Administration
(OSHA) complaint and related press conference
On August 16, 2006, the Union organized a press conference
to announce the filing of an OSHA complaint against Star-
bucks. The Union had alleged that that there was rodent and
insect infestation at the Union Square East store. A number of
IWW supporters attended the press conference including Gross,
Malchi, and Saenz. The IWW had also erected an inflatable rat
on the sidewalk several feet from the store and Saenz, DeAnda,
Malchi, and Gross each took turns speaking about the alleged
infestation. Several mangers including DM Tracey Bryant and
McDermet were present as well. McDermet observed portions
of the press conference which aired that evening on several
local news channels. Following the press conference, Malchi
was approached by SM Alicia and ASM Doran who told him
that he should have not gone to the media with this issue.
5. Work rules at issue herein
The instant complaint alleges various instances of discrimi-
natory promulgation and/or application of work rules. Two of
these are the solicitation and pin rules described above. The
complaint additionally implicates a number of other work rules,
“best practices” or guidelines, as well.
All store partners are subject to a number of written policies
governing their conduct and performance. These are set forth in
the partner information and new hire paperwork and partner
guide (partner guide) which all partners receive at the inception
of their employment.
a. Dress code policy
The partner guide contains a comprehensive dress code, and
sets forth in detail the acceptable types of pants, shirts, shoes,
hair color, and jewelry that employees may wear. In sum, Re-
spondent’s dress code requires employees to wear plain black
or white shirts, with a matching undershirt, if an undershirt is
worn. Shirts must be clean, pressed, and tucked in. Sweaters
may be worn in cooler weather but must be white or black.
Pants, trousers, shorts, or skirts must be solid black or khaki.
There are additionally certain standards for footwear, socks, or
stockings. In particular, shoes must be slip-resistant. Ties or
bows are optional, but must be in solid colors. Hats are permit-
ted only if required by State or local laws, or if related to a
promotion. Partners are required to wear company-issued
aprons which must be kept clean and in good condition. Hair
must be clean, brushed and, if long, tied back. Perfume or other
highly fragrant body lotions may not we worn; tattoos cannot
be visible.
With respect to jewelry, the partner guide provides that:
Earrings must be small or moderately sized. No more than
two earrings per ear may be worn. No other pierced jewelry or
ornaments are allowed, including nose rings or tongue studs.
Any other jewelry must be kept simple and may not be a dis-
traction.
b. Starbucks guiding principles
The Starbucks “Mission Statement” as set forth in the partner
guide provides that partners are expected to “[p]rovide a great
work environment and treat each other with respect and dig-
nity.”
The partner guide contains a section called “Problem Solv-
ing” which addresses disputes between or among partners as
follows:
Starbucks endorses an atmosphere of mutual respect and sup-
port. If a partner experiences disagreement or conflict with
another partner, the partner should first discuss the problem
with the other partner and make every effort to resolve it in a
respectful manner. If unsuccessful, the partner should seek the
store manager’s assistance in resolving the matter respectfully
and professionally. In the event the store manager is unsuc-
cessful, the partner may bring the matter to the attention of the
district manager and, finally, the Partner Resources team
member.
The partner guide also makes reference to M.U.G. (or Moves
of Uncommon Greatness) awards, which are presented by one
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
partner to another in recognition of that partner’s efforts and
contributions to a particular project or goal. Such awards are
manifested in buttons, which the receiving partner wears on his
or her uniform. Employees are encouraged to make use of this
organizational tool to foster partner morale and create a harmo-
nious workplace.
c. Minimum work requirements
Another section of the partner guide, entitled “Hours of
Work” provides, in sum, that partners may be expected to make
themselves available for a minimum number of hours or days
depending on store needs. A partner’s inability or failure to do
so may result in separation of employment.
d. Access to facilities by off-duty employees
Respondent additionally maintains a safety, security, and
health standard manual. In relevant part, employees are in-
structed as follows:
Do not allow non-Starbucks or off-duty partners behind the
counter or in the office. Ask the partner to show their partner
card and picture identification. The partner in charge must
verify this person is a Starbucks partner before allowing the
person behind the front counter.
e. “Picking Up” shifts at other stores
According to Wilk, Respondent additionally maintains a
“best practice” not allowing employees who are on final warn-
ing status to “pick up” shifts at other store locations. This pol-
icy is not written in any official manual distributed to employ-
ees.
G. Alleged Violations of Section 8(a)(1) of the Act
1. Respondent’s policy prohibiting employees from
wearing more than one union pin
It is undisputed that, shortly after entering into the March
2006 settlement agreement, Respondent interpreted its obliga-
tions there under to require it to allow no more than one union
pin per partner per shift. This was confirmed by Wilk and
McDermet. In addition, the General Counsel adduced evidence,
essentially unrebutted, of several instances where Respondent
enforced this policy with respect to its employees.16 As articu-
lated by Respondent, this rule apparently applies to employees
who are present in its stores, regardless of whether they are
actively working, on break or in noncustomer areas.

16 In late March 2006, shortly after the settlement agreement was en-
tered into, Smith informed Montalbano that management had imple-
mented a new policy regarding pins, and he could wear only one union
pin at work. Shortly thereafter, Montalbano wore two union pins while
at work and was told to remove one by ASM Richard Wood. According
to Montalbano, Wood stated that he had attended a manager’s meeting
and was told the new policy was that employees were allowed to wear
only one pin. Similarly, employee Charles Fostrum wore two union
pins while at work and SM Patrice Britton ordered Fostrum to take one
off, explaining the one-pin policy. During the fall of 2006, Malchi wore
two pins to work and DM Tracey Bryant told him he could wear only
one pin and instructed him to take one off or be sent home. Malchi
testified to similar experiences with Bryant and SM Cynthia Alicea on
other occasions during the fall of 2006.
There are two union pins at issue here. One is slightly larger
than the other, but both are less than 1 inch in diameter, have
red backgrounds, and bear the acronym “IWW” in white letters.
The evidence, which includes photographs taken of employees
while they are working, establishes that employees may wear
numerous pins on their caps or aprons. These consist primarily
of M.U.G. pins which employees are encouraged to disseminate
to each other to build morale and a harmonious workplace as
well as other company-issued pins which are distributed for
employee achievement. The IWW buttons at issue are no more
conspicuous in size or design than other buttons which are
worn by employees on their hats or aprons while working.
Respondent argues that it generated its one-button rule due to
instances where employees showed up at work wearing large
numbers of pins in various places on their work uniforms.
However, Respondent could point to only a few instances
where this had been an issue. In particular, Respondent relies
upon Smith’s testimony that DeAnda arrived at work wearing
multiple pins on two occasions. On the first of these occur-
rences, Smith, after consulting with Wilk, instructed DeAnda to
remove all but one of the buttons, and she eventually complied.
DeAnda subsequently arrived to work on another occasion
wearing multiple buttons. Further, in March 2006, Malchi ar-
rived at work wearing two IWW pins in addition to one other
button bearing the caption, “Union Thug.”17
Wilk testified that she was consulted by various managers
regarding the wearing of multiple union pins by employees, and
in particular regarding the “Union Thug” pin worn by Malchi.
A determination was made that the new pin policy would be
interpreted to allow employees to wear one pin that would ex-
press their union affiliation in a positive manner.
It is well established that employees generally have the right
to wear union insignia while at work. Republic Aviation Corp.
v. NLRB, 324 U.S. 793, 801–803 (1945). It is also true, how-
ever, that this right is not without limitation. The Board is
charged with balancing the conflicting rights of employers to
manage their businesses safely and efficiently. Id. at 797–798;
Sam’s Club, 349 NLRB 1007, 1010 (2007). “Thus, an employer
may limit or ban the display or wearing of union insignia at
work if special circumstances exist and if those circumstances
outweigh the adverse effect on employees’ Section 7 rights
resulting from the limitation or ban.” Id. (citing Albis Plastics,
335 NLRB 923, 924 (2001); Mack’s Supermarkets, 288 NLRB
1082, 1098 (1988)). “The Board has found special circum-
stances justifying the proscription of union insignia when its
display may jeopardize employee safety, damage machinery or
products, exacerbate employee dissention, or unreasonably
interfere with a public image which the employer has estab-
lished as part of its business plan, through appearance rules for
its employees.” United Parcel Service, 312 NLRB 596, 597
(1993) (citing Nordstrom, Inc., 264 NLRB 698, 700 (1982));
see also Sam’s Club, supra (limitations on the wearing of union
insignia have been approved based upon safety concerns and on
the employer’s need to have neatly uniformed employees as

17 According to Malchi, this button referenced a comment which had
been made by Mayor Bloomberg during the New York City transit
strike, and was meant to show solidarity with the transit employees.
STARBUCKS COFFEE CO. 13
part of its public image). Conversely, limitations that are based
merely upon an employee’s contact with customers or that are
overly broad have been found to be invalid. Id.
Respondent contends that its one-button rule is justified by
special circumstances, that the implementation was for nondis-
criminatory reasons and that it was not applied to employees in
a discriminatory manner. In support of this contention, Respon-
dent points to its dress code, as set forth in the partner guide,
whose purpose is to ensure that that its partners “present a
clean, neat, and professional appearance appropriate of a re-
tailer of specialty gourmet products.”
The March 2006 settlement agreement sets forth Respon-
dent’s undertakings with respect to its revised pin policy. There
is no apparent or implied limitation to one pin per employee per
shift. Thus, at the time Respondent settled those underlying
unfair labor practice charges, it announced that it would allow
employees to wear “buttons” or “pins” unless they “interfere
with safety or threaten to harm customer relations or otherwise
unreasonably interfere with Starbucks public image.” Pre-
sumably, this proviso would apply to those situations where
employees wore pins containing an offensive message or an
excessive number of pins which would create an untidy appear-
ance or create a safety hazard.
The testimony of Respondent’s witnesses fails to establish
that the one-button rule was promulgated as an extension of
Respondent’s dress code. Notably, not one witness who testi-
fied on behalf of Respondent pointed to this as a rationale for
the restrictions imposed. Rather, Respondent’s witnesses cited
primarily two isolated incidents where an employee wore an
unspecified number of buttons and another incident where the
message conveyed was deemed offensive. Other references to
situations where employees were allegedly “covered” in pins
were so vague as to lack probative value. While it is apparent
that Respondent encourages its employees to present a certain
image to the public, the Company not only countenances, but
encourages, the wearing of multiple buttons and pins as part of
that image. Thus, employees wear M.U.G and other company-
issued pins, apparently without limitation. Judging by the pho-
tographs of such employees entered into evidence by the Gen-
eral Counsel, I find that it would not be immediately apparent
to a customer that these are company-sponsored pins meant to
boost employee morale. Rather, the image conveyed to the
consumer is merely that of an employee wearing a variety of
pins on their hats and aprons. Respondent seems to have no
qualms that the appearance of such an employee would be in
contravention of the image which it desires to present to the
public. Further, as the Board has held, customer exposure to
union insignia, standing alone, is not a special circumstance
which allows an employer to prohibit the display of such insig-
nia. United Parcel Service, supra at 597 (citing Nordstrom,
Inc., supra).
Moreover, Respondent’s one-button rule apparently applies
regardless of whether the employee is in a selling area or else-
where in the facility or whether the employee is working or on
break. The Board has found that a rule which fails to take such
circumstances into account is overbroad. See Albertsons, Inc.,
272 NLRB 865, 966 (1984).
Respondent argues that “[i]n virtually every case where the
Board has found that the special circumstances exception does
not justify an employer’s restriction, the employer had imposed
a complete ban on employees’ rights to wear buttons.” It is true
that the great majority of cases on this issue involve, as a fac-
tual matter, a total prohibition on union insignia, but in at least
one case, the Board has found a restriction to one union button
to be invalid. Thus, in Serv-Air, Inc., 161 NLRB 382, 416–417
(1966), the Board held that an employer’s rule prohibiting an
employee from wearing more than one union button at a time
was a violation of Section 8(a)(1) of the Act. That situation
involved the wearing of large badges and other union propa-
ganda items by civilian mechanics employed by a private con-
tractor at Vance Air Force Base who had been hired to work on
advanced supersonic jet engines used to power Air Force
planes. The Board affirmed the conclusion of the trial examiner
that limiting employees to the wearing of only one union button
was a violation of Section 8(a)(1), rejecting the employer’s
contention that the wearing of union buttons around jet engines
constituted a safety hazard.
Respondent additionally argues that there is no evidence of
discriminatory intent in the implementation of the one-button
policy, or in its application. Even if I were to concur with Re-
spondent on this issue, I note that proof of discriminatory intent
or effect is not central to a determination of whether an em-
ployer has violated Section 8(a)(1) of the Act. Rather, the stan-
dard is whether the employer engaged in conduct which rea-
sonably tends to interfere with the free exercise of employee
Section 7 rights. This standard is objective, and the subjective
perceptions of individual employees are not taken into account.
Moreover, the test of interference, restraint and coercion under
Section 8(a)(1) of the Act does not turn on an employer’s mo-
tive or on whether the coercion actually succeeded or failed.
American Freightways Co., 124 NLRB 146, 147 (1959); Cur-
wood, Inc., 339 NLRB 1137, 1140 (2003).
In conclusion, based upon the foregoing, I find that Respon-
dent has failed to demonstrate that there were special circum-
stances for the promulgation and enforcement of its one-button
rule. Accordingly, I find that Respondent has violated Section
8(a)(1) of the Act in this regard.
2. The ban on personal use of the bulletin board
at Union Square East
As of November 2005, the back room used by employees of
the Union Square East store had two bulletin boards. According
to Malchi, up until that time one bulletin board had been desig-
nated for Starbucks-related material; the other contained notices
of a personal nature such as party invitations, announcements
of poetry readings, musical performances, and similar material
posted by employees. On November 19, the day after employ-
ees announced their union affiliation at the Union Square East
store, Malchi posted a copy of the letter that had been given to
Quintero and a union flier on the board which contained em-
ployee material. Later that day, Malchi noticed that both docu-
ments had been removed. Remaining at that time was some
poetry that had been posted by an employee as well as a flyer
for a coworker’s art show. Malchi posted copies of the union-
related documents again, but by the end of his shift they had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
been removed, while other items of a nonbusiness nature re-
mained posted. Prior to clocking out on that day, Malchi yet
again posted some union literature. When he next returned to
the store, on November 23, he observed that not only was the
union literature gone, but all personal items had been removed.
In its place was Starbucks-related literature including informa-
tion regarding benefits and stock options.
Malchi asked SM Quintero why personal items had been
taken off the board. Quintero replied that employees are no
longer allowed to post anything in the back room. Malchi asked
Quintero why, and Quintero replied that this was the rule, he
was the manager and this is what he had decided.
Respondent does not dispute that, at one time, employees did
post material of a personal, nonbusiness nature on one of the
bulletin boards in the back room at the Union Square East store,
and that they are no longer allowed to do so. Respondent does,
however, dispute the timing of when the change occurred and
the motive behind the change. Respondent contends that this
change reflects enforcement of its longstanding policy prohibit-
ing the posting of nonwork-related material at its stores, and
that it began to enforce the bulletin board policy at the Union
Square East store well before employees announced their sup-
port for the Union.
In support of this argument, Respondent relies upon
Vetrano’s testimony that, upon becoming district manager, she
reviewed operations at the Union Square East store and advised
Quintero that personal material could not be posted in the store
and that the bulletin board should be limited to Starbucks’ part-
ner information. According to Vetrano, this has been the case at
all stores where she has been a manager.18 Vetrano stated that
she had this conversation with Quintero within the first 2 weeks
of assessing the store after she became district manager, proba-
bly in October 2005. Quintero testified that after Vetrano be-
came district manager, either at the end of September or begin-
ning of October, she visited the store about twice per week.
Within 2 weeks, she reviewed standards that were not being
followed in the store, which according to Quintero were “store
cleanliness, dress code procedures [and] proper procedures in
the back room standards.”
There is, however, some evidence from Respondent wit-
nesses that places the timing of this change at a later date, after
the initiation of open union activity at the store. ASM Kristina
Doran offered specific testimony that the no-posting rule began
to be enforced right after the “very derogatory” posting of a
notice containing the picture of a house (which she believed to
be that of either Starbucks CEO Howard Schultz or Jim
McDermet) which bore the caption: “How much money does
this guy need?” Although Doran could not say for certain
whether this was an IWW flier, she did acknowledge that this

18 Respondent additionally cites to Gross’ testimony that as early as
2004, employees were not allowed to post personal items at the 36th
Street store, and that management was allowed to post Starbucks-
related material only. Gross also testified, however, that prior to the
representation petition being filed, employees had been allowed to post
items of a personal nature at the store. Gross made specific reference to
the posting and distribution of invitations to a club called “Hot Love.”
According to Gross, this flyer was distributed to employees and to the
store manager as well.
posting occurred at around the time that union flyers were be-
ing posted at the store. In addition, on cross-examination,
Quintero acknowledged that that he saw a picture of a house on
the partner bulletin board after the “standards and procedures”
began to be enforced, and that this occurred shortly after the
Black Friday protest took place.19
In any event, I credit Malchi about the timing of when this
change took place. He offered factually detailed, specific testi-
mony about the nature of the material that was removed from
the bulletin board, and the dates on which this occurred. More-
over, his account is corroborated by Doran, who testified in a
very straightforward manner that the enforcement of the no-
posting rule occurred after a derogatory posting of a high-level
Starbucks’ manager appeared on the bulletin board, and that
this occurred at the time employees were posting IWW litera-
ture. I find, therefore, that the change in the bulletin board pol-
icy occurred at a time that union activity at the Union Square
East store was widely known.20
It is clear that employees do not enjoy an unfettered Section
7 right to access and use an employer’s bulletin boards, pro-
vided that an employer’s restrictions are nondiscriminatory.
Register-Guard, 351 NLRB 1110, 1114 (2007), and cases cited
therein. Here, Respondent argues that the General Counsel
cannot show either that its rule was promulgated in response to
union activity or that it targeted only union-related postings.
Respondent asserts that its policy limits the use of its bulletin
boards to the posting of information pertaining to Starbucks;
thus, partners may not post invitations to a party or flyers ad-
vertising a car. According to Respondent, managers routinely
take down posts that are not Starbucks’ related. And, as noted
above, Respondent further contends that this policy was en-
forced well before the Union announced its support within that
store on November 18, 2005.
As an initial matter, the evidence fails to establish that, dur-
ing the relevant timeframe, Respondent maintained a blanket
rule prohibiting the posting of all non-Starbucks-related mate-
rial. The partner guide in which was in effect during the rele-
vant time frame contains (in pertinent part) the following provi-
sion:
Distributing Notices/ Soliciting
Posting or distributing notices or other written materials on
Starbucks property at any time, without prior approval from
your manager, is strictly prohibited.21

19 Quintero also recalled taking down an invitation to a Halloween
party; however, he did not state whether this occurred prior to or after
Halloween. Moreover, I note that Respondent was aware by this time
that the Union was using employee-sponsored parties as an organizing
tool.
20 I further note that, when testifying about the new standards im-
plemented by Vetrano, Quintero failed to specify the bulletin board
policy, and only did so after being asked by counsel for Respondent
whether he had any discussions with Vetrano about the bulletin board
policy in the store.
21 As noted above, as a result of the March 2006 settlement, Respon-
dent revised this policy to prohibit the distribution or posting in any
work areas of any printed material such as notices, posters, or leaflets.
STARBUCKS COFFEE CO. 15
Thus, Starbucks’ official policy at the time was not that all
personal postings were prohibited per se, but that they were
subject to management approval.22 In any event, the evidence is
unrebutted that, prior to a certain date, Quintero had freely
allowed employees to post items of a personal nature, and had
permitted the use of a bulletin board for such a purpose. Fur-
ther, while Respondent argues that the change predated knowl-
edge of union activity at Union Square, I find that the weight of
the credible evidence, as discussed above, suggests the opposite
conclusion: that the new rule was promulgated subsequent to
the initiation of open union activity at the store.
In Register-Guard, supra, the Board found that an employer
did not violate the Act by maintaining a policy prohibiting the
use of the employer’s e-mail system for “all non-job related
solicitations,” which encompassed Section 7 activity. In that
case, the employer had previously permitted personal e-mail
solicitation, but had not permitted e-mails soliciting support for
any outside group or organization in the past. The Board major-
ity concluded that the union was an outside organization and
found that the employer had lawfully enforced its policy.
Relying upon earlier Board decisions regarding the use of
employer-owned bulletin boards, copying machines, tele-
phones, and other equipment, the Board majority reaffirmed
that there is “no statutory right to use an employer’s equipment
or media, as long as the restrictions are nondiscriminatory.”
Thus, under this standard, an employer may lawfully bar access
to its property (i.e., bulletin boards) “unless the [employer] acts
in a manner that discriminates against Section 7 activity.” The
Board then next considered whether, having permitted employ-
ees to use the e-mail system for purposes not related to work,
the company could lawfully prohibit its use for union-related
purposes. In finding that the company’s actions in this regard
were not unlawful, the Board majority modified extant law on
what constitutes discriminatory enforcement by adopting the
analysis of the Seventh Circuit,23 where the circuit distin-
guished between personal, nonwork-related postings on a bulle-
tin board, such as for sale notices and wedding announcements,
and group or organizational postings such as union materials.
The Board held that unlawful discrimination consists of dispa-
rate treatment of activities or communications of a similar char-
acter because of their union or other Section 7 protected status.
However, the Board majority also noted that “if the evidence
showed that the employer’s motive for the line-drawing was
antiunion then the action would be unlawful.” Register-Guard,
supra at 1118 fn. 18. Thus, the Board made clear that it was not
altering well-established principles prohibiting employer rules
that discriminate against Section 7 activity.
Here, Respondent has prohibited all non-Starbucks material,
not just union-related postings. Nevertheless, I find that Re-
spondent’s contention that it was neutrally applying a long-
standing rule is not supported by the evidence. Rather, the evi-

22 I cite this provision only to show what Respondent’s stated policy
was at the time in question, and do not offer any opinion on whether the
policy, taken as a whole, was a lawful one.
23 Fleming Co., 349 F.3d 2968 (7th Cir. 2003), denying enf. 336
NLRB 192 (2001); Guardian Industries, 49 F.3d 317 (7th Cir. 1995),
denying enf. 313 NLRB 1275 (1994).
dence suggests that, at least at the Union Square East store,
Respondent’s stated policies had either been unenforced or
applied in a very liberal manner by store management prior to
the change alleged to be unlawful. Further, Respondent’s con-
tention that its no-posting rule was announced before it had
knowledge of union activity is similarly unsupported by the
evidence. Rather, the evidence, including the timing of the
announcement, establishes that Respondent promulgated such a
rule directly in response to open union activity at the Union
Square East store.
Eaton Technologies, Inc., 322 NLRB 848, 853 (1997), cited
by the Board in Register-Guard, involved a circumstance where
the respondent maintained a policy requiring permission prior
to the posting of personal material. It was uncontested that the
employer permitted two of its bulletin boards to be used for the
posting of personal notices by employees, and there was further
no dispute that the respondent never enforced its policy requir-
ing permission to post notices until after the union campaign
began. Shortly after the union campaign commenced, union-
related postings were removed, but other personal notices were
allowed to remain. Thereafter, the bulletin boards were en-
closed in glass and Respondent allowed only work-related no-
tices to be posted. In that circumstance, the administrative law
judge, affirmed by the Board, found that the respondent had
violated Section 8(a)(1) by removing and destroying union
literature and by disparately enforcing its bulletin board policy.
Here, as in Eaton Technologies, supra, Respondent previ-
ously allowed employees to post notices of a personal nature,
notwithstanding a rule requiring that they first obtain permis-
sion to do so. Once union literature began appearing on the
bulletin board, it was selectively removed. Then, the prohibi-
tion was expanded to include all notices of a personal nature,
and only employer-sponsored material was permitted. In my
view, such actions evidence the sort of discriminatory motive
discussed by the Board in Register-Guard, supra. Moreover, the
instant case is dissimilar to Register-Guard in that it does not
involve an alleged disparate enforcement of a written company-
wide policy with facially neutral language. Instead, there was
an unwritten policy at the Union Square East store that was
abruptly changed in response to the Union’s organizing cam-
paign. Accordingly, I conclude that by adopting and enforcing a
policy banning personal use of the bulletin board at its Union
Square East store, Respondent violated Section 8(a)(1) of the
Act.
3. The alleged unlawful prohibitions on talking
about the Union
As noted above, in the March 2006 settlement, Respondent
agreed to promulgate and enforce a revised no-solicitation rule
which, in relevant part, prohibits employees from engaging in
solicitation during working time or the working time of the
employee being solicited.
Wilk testified that, beginning in March 2006, Respondent’s
policy was that employees may not solicit in any work area,
without exception. She further testified that she has told man-
agers to apply the policy in that fashion. When asked whether
that prohibition would apply to talking about the Union, her
answer was: “I guess that would depend on the situation.” Wilk
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
offered no further clarification of what she meant by that re-
mark.
The General Counsel has alleged that, commencing in about
March 2006, under the guise of this no-solicitation policy, Re-
spondent has maintained and enforced a rule prohibiting em-
ployees from discussing the Union while allowing them to dis-
cuss other subjects which are unrelated to work. Shift Supervi-
sor Aiesha Mumford testified that in March 2006 she was tem-
porarily assigned to work at Union Square East. She noticed a
pin that Ayala was wearing. Mumford did not know what it
signified at the time, but expressed admiration for it. Ayala
gave her a pin, which was an IWW pin, which Mumford placed
on her hat. Some time later, Mumford was called into the back
by ASM Doran, who explained what the pin signified. Accord-
ing to Mumford’s testimony, which was unrebutted by Doran,
Doran explained what the Union was about and told Mumford
that she could not tell her not to wear the pin. Doran also told
Mumford that people at that location were part of a union and
they are not allowed to promote or try to have people join the
Union while at work. Mumford removed the pin prior to the
completion of her shift.
In April 2006, Malchi was working alongside borrowed
partner Daniel Schwartz. According to Malchi, the two talked
about working conditions at Starbucks, the Union, sports, and
possibly getting together outside of work. Malchi asked
Schwartz for his phone number. Management was present on
the floor throughout. As Malchi was done with his shift,
Quintero told him that Vetrano had asked him to speak with
Malchi about his conversations with Schwartz. Quintero said
that Malchi had solicited Schwartz and that he was not allowed
to talk about the Union while working. According to Quintero,
Schwartz later complained to management about Malchi’s ac-
tions and stated that he no longer wanted to work at the store.24
Respondent asserts that, even if Malchi’s discussion with
Schwartz did not technically rise to the level of solicitation, it
nevertheless was entitled to address this conduct in light of
alleged “interference with operations.”
Quintero testified that, from his standpoint, employees can-
not have a conversation about the Union even when not busy
because it is considered solicitation. Quintero added that em-
ployees may discuss the Union while on their breaks, in the
lobby area. Quintero further explained that employees may
have conversations about various topics, as long as the cus-
tomer is connected to it. When there are no customers, employ-
ees may discuss things that are going on in the store, and mat-
ters such as i-tunes, music, movies, and books. Once a cus-
tomer comes for service, however, employees are expected to
focus on taking care of the customer.25 Malchi, generally cor-

24 Schwartz did not testify; nor was any incident report or any other
documentation of his alleged complaint offered into evidence.
25 At another point in his testimony, Quintero asserted that he told
partners that they could not have personal conversations behind the
counter. He claimed to have told employees that they could not discuss
a party, but could not remember when this occurred. I do not credit this
testimony as it is inconsistent with all the other evidence adduced on
this issue, and further note Respondent does not assert that its policy is
to prohibit all personal conversations, only what it deems to be “solici-
tations.”
roborated by Ayala, testified that during shifts he engaged in
numerous conversations with Ayala about family life, children,
and traveling. According to Ayala, while working, she and her
coworkers spoke freely about relationships, religion, problems,
and bills. As Ayala testified, various members of the store’s
management staff were aware of these discussions and partici-
pated in them as well.
On May 3, RD Beckman accused Malchi of “constantly”
talking about the Union after being told not to, and advising
him that if he persisted in doing so he would be terminated.26
Later that month, as Malchi was receiving a final written warn-
ing from Vetrano and Beckman, he was told that discussing the
Union and working conditions constituted verbal solicitation.
Beckman told Malchi that once he was on the clock he could
not do anything that makes anyone feel uncomfortable or ask
for anything from anyone. Beckman added that talking about
the Union was harassment. Beckman testified that she told
Malchi that he could not speak about the IWW while on the
floor while working. She also stated that she told Malchi that it
didn’t matter what the topic was, the customers needed to be
served. If he was on break, or off duty, his conversations were
his business.
Doran acknowledged during her testimony that at times Mal-
chi was working at the bar discussing union matters and she
would tell him to refrain from doing that until he took a break.
Doran testified that she did so because, although she could not
remember any particular incident, she felt that the comments
Malchi made were inappropriate to helping customers.27 In its
brief, Respondent argues that to the extent Doran prohibited
Malchi from discussing the Union, it was because he was doing
so while working, and the discussion was interfering with his
service of customers. Neither Doran, nor any other manager,
however, presented any testimony relating to a specific instance
where there was interference of service caused by Malchi’s
discussions of any topic with his coworkers. Similarly, there is
no specific evidence to support Respondent’s assertion, as set
forth in its brief, that Malchi’s conduct disrupted store opera-
tions more generally.
According to Montalbano, in April 2006, he and DeAnda
were called into the back room for a conversation with District
Managers Will Smith and Karen Schueler. Smith said it had
come to their attention that the employees had been talking
about the Union while on the clock. Smith said that such con-
versations were solicitation, and would have to stop. Montal-
bano asked Smith to define solicitation, and asked what he is
supposed to do if someone asks him about the pin on his apron.
Smith replied that Montalbano could state that it is a union pin,
but give no further information, as that would be solicitation.
At this point, Schueler said that Montalbano should consider
how nonunion partners feel, that it makes them feel uncomfort-
able at work when there is talk about the Union. DeAnda asked
Smith if he could further define solicitation. According to

26 This conversations described here took place in the context of
written discipline issued by Respondent to Malchi, which has been
alleged to be unlawful and is discussed below.
27 The record contains evidence that Malchi also distributed union
literature while working. These instances will be discussed below.
STARBUCKS COFFEE CO. 17
Montalbano, DeAnda queried whether asking a coworker out to
dinner would be the same sort of solicitation as talking about a
union meeting. Smith told DeAnda not to play games with him:
if she asked a coworker out to dinner it is not solicitation; if she
talked about the Union; then it was solicitation.
Respondent argues that an adverse inference should be
drawn from the fact that DeAnda, a union supporter, was not
called by the General Counsel to corroborate Montalbano’s
testimony. I note, however, that Schueler, who did testify, was
not asked about this encounter. In addition, Smith admitted that
in April 2006 he was party to a conversation where Montalbano
asserted that Smith’s interpretation of the settlement agreement
was incorrect, and that he could talk about the Union from a
support standpoint while working. According to Smith, he re-
plied that Montalbano could not do that, but that he could dis-
cuss whatever he wished on breaks, lunch or before or after
work, but not while working at the store. Based upon Montal-
bano’s credible demeanor and his detailed account of this as-
pect of the conversation, the fact that Schueler provided no
rebuttal testimony and Smith’s corroboration of the essence of
the discussion, I credit Montalbano’s account of this conversa-
tion.
In the instant case, the General Counsel does not claim that
the no-solicitation rule promulgated by the Respondent is
unlawful; the thrust of the General Counsel’s argument is that
by forbidding discussions relating to the Union, while allowing
employees to speak about other nonwork subjects during work-
time, Respondent has violated the Act.
Respondent asserts that, to the extent it restricted partners in
discussing the Union, it did so in accordance with the terms of
its policy which prohibits employees from engaging in solicita-
tion while they or the partner they are soliciting are working.
Respondent further notes that its managers frequently told em-
ployees that they were free to discuss union-related matters
while they were on break or off duty at its stores. Respondent
further argues that its no solicitation policy was consistently
enforced with regard to nonunion solicitations and, even if it
could be proven that in certain isolated instances Respondent
tolerated partners engaging in this type of selling, under Regis-
ter-Guard, supra at 11119, this would not amount to a viola-
tion of the Act absent evidence of discriminatory enforcement.
With regard to the General Counsel’s argument that Respon-
dent has prohibited mere talk rather than solicitation, Respon-
dent, citing Washington Fruit & Produce Co., 343 NLRB 1215,
1219 (2004), argues that the Board has recognized that an em-
ployee may be engaged in solicitation by merely speaking in
favor of a union where the employee is trying to “persuade
fellow employees to support [the union] cause.” Further, Re-
spondent contends that even if certain employee discussions did
not constitute solicitation, the Board has acknowledged that
employers do not violate the Act by limiting discussion of un-
ion activities where such discussions disrupt the employer’s
business or interfere with the employees’ performance of their
work. In support of this contention, Respondent cites Adco
Electric, Inc., 307 NLRB 1113, 1117–1118 (1992), for the
proposition that if the conduct in question, whether deemed a
solicitation or not, results in or has the potential for disruption,
then the employer can properly discipline its employees as a
result. Finally, Respondent contends that any argument that it
violated the Act by prohibiting union talk while allowing other
subjects to be discussed must fail: “It is one thing, for example,
to ‘talk’ to fellow employees about Sunday’s football game. It
is quite another to try to ‘persuade’ fellow employees to sup-
port a cause. The former is allowed. The latter is not . . . .”
Washington Fruit & Produce Co., supra at 1219.
In agreement with the General Counsel I find that the evi-
dence supports the conclusion that Respondent has consistently
interpreted its no-solicitation rule to be the functional equiva-
lent of a no-talking rule. The evidence adduced in the record
demonstrates that when managers overheard conversations
relating to the Union, or merely received third-hand reports of
such discussions, employees were counseled that such talk was
tantamount to solicitation, or was deemed to be harassment of
other employees, and should cease, regardless of the actual
content of the conversation at issue, regardless of the length of
the discussion or whether it interfered with company opera-
tions.
The Board has held, however, that there is a distinction be-
tween solicitation for a union and “talking about a union or a
union meeting or whether a union is good or bad.” Wal-Mart
Stores, 340 NLRB 637, 639 (2003) (quoting W. W. Grainger,
229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th Cir.
1978)). Here, Respondent’s rule was applied to employees
regardless of whether they were actually soliciting other em-
ployees to join the Union or merely discussing the Union. Ob-
viously, Respondent can lawfully make customer service a
priority, but there is no direct, probative evidence that employ-
ees were prohibited from engaging in discussions relating to
other matters with their coworkers while serving customers or
doing other assigned tasks, and I note that Respondent has not
asserted that this is the case.
It is well settled that “an employer may forbid employees
from talking about a union during periods when the employees
are supposed to be actively working, if that prohibition also
extends to their subjects not associated or connected with the
employees’ work tasks. However, an employer violates the Act
when employees are forbidden to discussion unionization, but
are free to discuss other subjects unrelated to work . . . .” Jen-
sen Enterprises, 339 NLRB 877, 878 (2003). Further, in con-
sidering whether communications from an employer to its em-
ployees violate the Act, “the Board applies an objective stan-
dard of whether the remark tends to interfere with the free exer-
cise of employee rights. The board does not consider either the
motivation behind the remark or its actual effect.” Scripps Me-
morial Hospital Encinitas, 347 NLRB 52 (2006) (quoting
Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
Applying those principles here, I find that the credible evi-
dence establishes that social discussions were allowed among
employees while they were working at the bar. Quintero admit-
ted that when not busy, employees discuss a variety of topics.
Further, the testimony of Malchi and Ayala, which was unre-
butted, was that they regularly discussed various subjects while
on shift.
Moreover, there is no evidence of any other enforcement of a
rule against talking while working. Various witnesses testified
that the purpose of the no-talking rule was to ensure that that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
the customers were to come first, however, there is no evidence
that any of the union-related discussions at issue here distracted
employees from serving customers. Indeed, as the Board has
noted, an employer’s request that one employee stop distracting
another employee from his work can reasonably be understood
as “merely curbing social discussions during a busy period.”
Scripps Memorial Hospital Encinitas, supra at 53. Here, the
remarks made to employees would reasonably be interpreted to
mean that discussion of the Union was not allowed at any time
while behind the bar, even though other nonwork conversation
was permitted there. See also Emergency One, Inc., 306 NLRB
800 (1992) (respondent unlawfully restricted conversations
about the union during worktime while permitting other con-
versations including those about nonwork matters); ITT Indus-
tries, 331 NLRB 4 (2000) (respondent’s instruction not to en-
gage in any discussion of the union with any employee unlaw-
ful where employees were, notwithstanding rule in employee
handbook prohibiting all solicitations during working time,
allowed to engage in discussions and solicitation on the produc-
tion floor).
Washington Fruit & Produce Co., supra, relied upon by the
Respondent, is distinguishable from the circumstances herein.
There, the Respondent maintained a rule, which was unchal-
lenged by the General Counsel, which prohibited “approaching
fellow employees in the work place regarding activities, or-
ganizations, or causes, regardless of how worthwhile, important
or benevolent.” The rule further provided that “[n]o employee
shall solicit or promote support for any cause or organization
during his or her working time or the working time of the em-
ployee or employees at whom such activity is directed.” The
Board majority concluded that discipline issued to employees
for violating this rule was not unlawful. In doing so, the Board
rejected the determination of the administrative law judge that
the employees had engaged in mere talk that did not rise to the
level of “solicit[ing] or promot[ing] support for any cause or
organization.” Rather, the Board found that that the conduct of
the employees in question “clearly fell within the ambit of the
rule.” 343 NLRB at 1219. Because the conduct at issue was
subject to this rule, the fact that the respondent had tolerated
“talk” in the workplace did not warrant a contrary result. Id. Of
import in that case was that the Board specifically noted that
the respondent therein permitted employees to talk among
themselves while working, without restriction as to subject
matter, so long as their personal discussions did not rise to the
level of solicitation or promotion within the meaning of the
rule.
Here, the unrebutted evidence establishes that Respondent
does not prohibit, and has allowed employees to talk generally
about nonwork matters during worktime but has specifically
prohibited employees from talking about the Union under simi-
lar circumstances, regardless of the content of the conversation.
Accordingly, by issuing a blanket prohibition against discus-
sions of the Union while on worktime, while allowing employ-
ees to talk about other nonwork matters, Respondent has vio-
lated Section 8(a)(1) of the Act. Scripps Memorial Hospital
Encinitas, supra; Jensen Enterprises, supra.28
4. The alleged prohibition on discussions
of working conditions
In support of its contention that Respondent unlawfully pro-
hibited discussions of working conditions among employees,
the General Counsel cites to two instances: a discussion among
Montalbano, DeAnda, Schueler, and Smith (which has been
discussed in some detail above) and another between Fostrum
and DM Veronica Park.
According to Montalbano, at some point during the April
2006 discussion with Schueler and Smith relating to solicita-
tion, he told Smith that the Act gave employees the right to talk
about wages and working conditions as long as it didn’t inter-
fere with work. Smith stated that wages are a private issue and
Montalbano is not supposed to talk about them.29 Smith testi-
fied that at some point in April 2006, Montalbano came to him
and stated that wages had increased due to the IWW efforts.
Smith replied that wages are increased almost every year.
Smith was specifically asked by counsel for Respondent
whether he ever told Montalbano that he was not permitted to
speak about wages or working conditions with other Starbucks
partners. Smith replied, “I told him again the same thing. We
don’t discuss pay. People are hired on their performance, their
experience, background and that’s it.”30 Respondent contends
that by making such comments, Smith was telling Montalbano
merely that managers could not discuss the basis for setting or
increasing employees’ rates of pay. However, Smith was spe-
cifically responding to a question from counsel relating to what
he had told Montalbano regarding his discussions of wages
with other partners, and not about any constraints imposed
generally upon managers about discussing wages with employ-
ees. Accordingly, I find that Respondent’s suggested interpreta-
tion of Smith’s comments is not supported by the record as a
whole.
It is well settled that rules prohibiting employees’ discussion
of their wages, hours, or other terms and conditions of em-
ployment violate Section 8(a)(1) of the Act. Flamingo Hilton

28 The General Counsel has also alleged that Respondent unlawfully
prohibited employees from discussing the Union while off duty. This is
discussed in connection with the allegations of the complaint regarding
Daniel Gross, below.
29 Montalbano admitted that his recollection of this aspect of the dis-
cussion was incomplete. Respondent contends that this testimony was
elicited through the use of leading questions. I note, however, that the
General Counsel established that Montalbano’s recollection of discus-
sions about wages and working conditions was exhausted prior to ask-
ing the specific question regarding whether it was stated that they were
a “private issue.” In any event, as the Board has noted, testimony elic-
ited through the use of leading questions may be credited. Millard
Refrigerated Services, 345 NLRB 1143 (2005); W & M Properties of
Connecticut, 348 NLRB 162 (2006). As I found Montalbano’s testi-
mony generally to have the ring of truth, I credit it notwithstanding
some lapses in his recollection.
30 Although not specifically alleged herein, there is evidence that
Montalbano was told on a subsequent occasion, this time by SM Chris
Salinas, that he should not discuss a wage adjustment with his cowork-
ers, as it would confuse them. Montalbano was instructed to refer in-
quiries to store management.
STARBUCKS COFFEE CO. 19
Laughlin, 330 NLRB 287, 292 (1999); Koronis Parts, 324
NLRB 675, 686, 694 (1997); Vanguard Tours, 300 NLRB 250,
264 (1990), enfd. in relevant part 981 F.2d 62 (2d Cir. 1992).
See also Scientific-Atlanta, Inc., 278 NLRB 622, 624–625
(1966) (wages are a “vital term and condition of employment,”
“probably the most critical element in employment” and “the
grist on which concerted activity feeds”). Accordingly, by ad-
monishing Montalbano that “wages are a private issue” and that
“we don’t discuss pay” Respondent has violated Section 8(a)(1)
of the Act.
The General Counsel has cited to another instance where it is
alleged that Respondent violated the Act in a similar fashion.
This allegation concerns an occasion where Fostrum was in-
volved a dispute with his shift supervisor where each claimed
that the other had pushed them inappropriately. Park instructed
Fostrum that he was not to discuss the matter further with the
shift supervisor. The General Counsel contends that by issuing
such an instruction Park was prohibiting Fostrum from discuss-
ing store safety. I find, however, that Park’s limited direction
to Fostrum that he was not to discuss the disagreement with the
shift supervisor did not amount to an unlawful prohibition on
discussing working conditions. See Snap-On-Tools, Inc., 342
NLRB 5, 10 (2004) (instruction not to discuss altercation with
coworker held not to constitute an unlawful prohibition on the
discussion of working conditions, where prohibition is limited
to that one-on-one dispute and did not implicate any other mat-
ter affecting terms and conditions of employment).
5. The alleged restrictions on use of the “back room”
at Union Square East
The complaint alleges that, from November 2005 through
March 2006, off-duty employees were unlawfully prohibited
from entering the so-called “back room” of the Union Square
East store. This room contains excess inventory, refrigerators, a
sink, a telephone, a computer, the safe and, as noted above, the
company bulletin boards. Employees use the room to perform
certain work-related tasks such as counting their till, totaling
the deposit, ordering products, and answering the phone. Both
Malchi and Ayala testified that prior to the November 18 an-
nouncement of union support at the Union Square East store,
off-duty employees were granted access to the so-called “back
room” of the store and would go there to check their schedules,
pick up their paychecks or tips, and wait for coworkers to get
off work. As Ayala testified, Assistant Store Managers Doran,
Martinez, and Gomez would be present and socialize with em-
ployees as well. At some point in late November, it was an-
nounced that access to the back room was restricted to off-duty
employees. When such employees came by to check their
schedules or get their wages, they were required to wait in the
café area for their schedules or wages and tips to be brought out
to them. Malchi testified that one day during that period of
time, he went to the store and was stopped by Doran, who
asked Malchi if he was scheduled to work that day. When Mal-
chi replied that he was not, Doran advised him that he was not
allowed in the back room. Malchi asked if this was a new pol-
icy, and Doran replied that this was the rule and it was being
enforced. Consequently, Malchi waited for Doran to bring him
his schedule, which he reviewed in the café area. Doran ac-
knowledged that she did stop off-duty employees from entering
the back room; however, she could not recall when she began
implementing this policy. According to Malchi, this rule was
routinely enforced until March 2006, at which time off-duty
employees were once again granted access to the back room.
Vetrano testified that for safety and security reasons partners
are not allowed in the back room when off duty, and that such a
rule had been enforced at all stores where she has been a man-
ager. Wilk testified that she was not sure there was a company
rule pertaining to the use of the back room while off duty. She
was consulted prior to the implementation of the policy at the
Union Square East store but could not provide specific testi-
mony about when this change was implemented.
There was no rebuttal offered by Respondent to Malchi’s tes-
timony that such a restriction no longer exists at Union Square
East, and has not been in effect since some time in March 2006.
The General Counsel argues that the implementation of this
policy was designed to restrict the access of prounion employ-
ees to their coworkers. Respondent argues that the back room
policy is consistent with its safety manual, and is part of an
overall effort to ensure partner safety and store security. As
Respondent asserts, this policy is part of an overall plan de-
signed to protect partners and customers from injury and to
protect company assets and potential disruptions to its business.
According to Respondent, Starbucks’ policy has consistently
prohibited employees from entering the back room while off-
duty. Respondent cites to its safety, security & health standard
manual which provides in relevant part as follows:
Do not allow non-Starbucks or off-duty partners behind the
counter or in the office. Ask the partner to show their partner
card and picture identification. The partner in charge must
verify this person is a Starbucks partner before allowing the
person behind the front counter.
Respondent maintains that there are valid reasons for enforc-
ing this rule. As noted above, the safe is located in the back
room and partners perform tasks there involving sums of
money. Doran testified that she once made a significant mone-
tary error while filling out a deposit form because she was dis-
tracted by employees present in the back room.
In addition, Respondent maintains that Respondent began
enforcing this rule prior to the union announcement. However,
both Malchi and Ayala offered specific testimony that the
change in policy occurred after the union announcement at the
store and the testimony of Respondent’s witnesses fails to con-
vince me to the contrary. Vetrano testified that shortly after
assuming the management of the store, she met with Quintero
and told him that they had to reestablish guidelines regarding
basic cleanliness, sanitation and dress code. Vetrano further
testified that while meeting with all store managers under her
supervision she stated that they would be “going back to ba-
sics” with regard to dress code, cash logs and having stores
cleaned correctly. Vetrano failed to mention anything about a
back room policy until specifically questioned by Respondent’s
counsel. Vetrano then testified that she spoke to Quintero about
the need to enforce the no-access rule. Quintero’s initial testi-
mony was that Vetrano spoke to him about enforcing the “back
room standards” among other policies such as dress code and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
cleanliness standards after about 1-1/2 weeks after she first
reviewed store operations. However, Quintero subsequently
testified that Vetrano, “[S]aid we had to follow dress code poli-
cies and standards and stuff like that . . . after they had ad-
dressed that they were forming a union.” Wilk and Doran both
testified that the policy regarding access to off-duty employees
was changed, but neither could testify when this policy began
to be implemented. Thus, the testimony of Respondent’s wit-
nesses on when this rule began to be enforced is, at best, vague.
In agreement with the General Counsel, I find that the re-
strictions on access to the back room were enacted with an
antiunion motive. I credit the straightforward testimony of both
Malchi and Ayala that the enforcement of the no-access rule
commenced after the union announcement at the Union Square
East store. I further find their testimony to be supported by the
evidence as a whole, and the logical inferences to be drawn
from the record. In particular, I note that Vetrano failed to spec-
ify this as one of the early changes she wished to make until
prompted to do so by counsel and Quintero in his cross-
examination tied the increased enforcement of various rules to
the advent of union activity at the store. Moreover, I note that
this change in policy did not occur in isolation. As I have found
above, Respondent took a series of actions with the apparent
intended effect of reducing employees’ opportunity to commu-
nicate with each other or otherwise engage in protected conduct
while at the workplace. Such actions, which all occurred
shortly after the announcement of union support at the Union
Square East store, evince a discriminatory motive. The Board
has long held that the imposition of a new rule, or the more
stringent enforcement of an old rule, in response to union activ-
ity is unlawful. Old Angus Inc. of Maryland, 212 NLRB 539
(1974).
Moreover, even if I were to find that Respondent has put
forth valid reasons to restrict employees’ access to the back
room when off duty, Respondent has failed to explain why,
beginning in March 2006, it ceased enforcement of this rule,
and went back to its original practice of allowing off-duty em-
ployees to enter the back room. This reversal undermines Re-
spondent’s argument that the initial restriction was driven by
established company policy and is necessitated by safety and
security concerns.31 I further note that there is no evidence that
any manager ever explained to employees why they were no
longer allowed in the back room when off duty. In addition,
other than the one incident testified to by Duran where she
made an accounting error, Respondent has offered no evidence
to show that there was any breach of security or safety caused
by employees’ presence in the back room that would warrant or
necessitate such a change.
Accordingly, I find that by prohibiting employees from en-
tering the back room of its Union Square East while off duty,

31 As the General Counsel further asserts, the cited provisions of Re-
spondent’s safety manual do not strictly prohibit off-duty employees
from entering certain areas of the store. They do, however, require that
such employees show their partner card and picture identification be-
fore being allowed behind the counter. The General Counsel argues that
the fact that Respondent did not follow its own announced policy is an
indication of unlawful motive.
Respondent engaged in conduct which violates Section 8(a)(1)
of the Act.32
H. The Alleged Violations of Section 8(a)(3) of the Act
1. The Wright Line standard
Allegations of discrimination which turn on employer moti-
vation are analyzed under the framework set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). To establish a viola-
tion of Section 8(a)(3) under Wright Line, the General Counsel
must first show, by a preponderance of the evidence, that the
employee engaged in protected concerted activity, the employer
was aware of that activity, and the activity was a substantial or
motivating reason for the employer’s action. Wright Line, su-
pra; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
Proof of an employer’s motive can be based upon direct evi-
dence or can be inferred from circumstantial evidence, based on
the record as a whole. Ronin Shipbuilding, Inc., 330 NLRB 464
(2000); Robert Orr/Sysco Food Services, 343 NLRB 1183
(2004); enfd. mem. 179 LRRM 2954 (6th Cir. 2006); Embassy
Vacation Resorts, 340 NLRB 846, 848 (2003). The Board has
long held that where adverse action occurs shortly after an em-
ployee has engaged in protected activity an inference of unlaw-
ful motive is raised. See McClendon Electrical Services, 340
NLRB 613 fn. 6 (2003) (citing La Gloria Oil Co., 337 NLRB
1120 (2002), enfd. mem. 71 Fed Appx. 441 (5th Cir. 2003). As
part of its initial showing, the General Counsel may offer proof
that the employer’s reasons for the personnel decision were
pretextual. Pro-Spec Painting, Inc., 339 NLRB 946, 949
(2003); see also Laro Maintenance Corp. v. NLRB, 56 F.3d
224, 229 (D.C. Cir. 1995). In addition, proof of an employer’s
animus may be based upon circumstantial evidence, such as the
employer’s contemporaneous commission of other unfair labor
practices. Amptech, Inc., 342 NLRB 1131, 1135 (2004).
Once the General Counsel has made out the elements of a
prima facie case, the burden of persuasion then shifts to the
employer to “demonstrate that the same action would have
taken place even in the absence of the protected conduct.” Sep-
tix Waste, Inc., 346 NLRB 494, 496 (2006); Williamette Indus-
tries, 341 NLRB 560, 563 (2004); Wright Line, supra. To meet
its Wright Line burden, “[a]n employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected activity.” W. F. Bolin
Co., 311 NLRB 1118, 1119 (1993), petition for review denied
70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir.
1996). See also Manno Electric, Inc., 321 NLRB 278, 280 fn.
12 (1996).
2. Alleged disparate enforcement of
Respondent’s dress code
The complaint alleges that Respondent disparately enforced
its dress code with respect to both Ayala and Malchi and, fur-
ther, issued discipline to them pursuant to such disparate en-
forcement, in violation of Section 8(a)(1) and (3) of the Act.

32 Other alleged violations of Sec. 8(a)(1) are discussed below.
STARBUCKS COFFEE CO. 21
The record establishes that before Vetrano became the DM
for the Union Square East store, enforcement of various aspects
of Respondent’s dress code at that location had been lax. Em-
ployees did not wear undershirts which matched their shirts,
tattoos were visible, shoes and pants were not in compliance
with dress code requirements, and various employees wore
large rings, bracelets, and necklaces. Both Vetrano and
Quintero testified that, when she initially reviewed operations
at the store, Vetrano stated that the dress code policy had to be
more strictly enforced. The record establishes that thereafter the
dress code was more strictly enforced with respect to all em-
ployees. For example, Malchi testified that ASM Edwin Gomez
told ASM Jeremiah Martinez, who was working at the bar, to
cover his tattoo. He also observed that when an employee came
to work with pants which failed to comply with the dress code,
Quintero gave her money to buy new pants, which she did.
Doran similarly testified that she was told that jewelry she wore
was not in compliance with the dress code. She was repri-
manded for wearing earrings larger than a quarter, and multiple
bracelets. Quintero testified that he told an employee repeatedly
to tuck in his shirt, and another to change her shoes to comply
with the dress code. Vetrano instructed Quintero to tell this
same employee to remove her earrings because they were too
long and distracting.
With regard to jewelry in particular, the dress code directs
that jewelry must be moderately sized, kept simple, and may
not be a distraction. The record establishes that, since August
2002, Ayala has worn a pentagram necklace which is about 1-
1/2 inches in diameter. According to both Ayala and Malchi,
she consistently wore it while at work. Out of curiosity, Malchi
asked her what it signified, and she told him it was a Wiccan
symbol. According to Ayala, all managers at Union Square saw
her wear the pentagram; and Malchi testified that she discussed
its religious significance with her coworkers and managers.
Ayala testified that, on about December 15, 2005, Quintero
told her to remove her necklace or to tuck it in. Ayala ques-
tioned why, after all this time, she was being required to tuck in
her necklace. Quintero said it was against Starbucks’ policy to
wear religious objects. Ayala argued that the policy only pro-
hibited distracting jewelry and Quintero then said that the neck-
lace was too big. According to Malchi, Ayala emerged from her
meeting with Quintero visibly upset, stating that she had been
told that the pendant was a religious object and could not be
worn. Malchi and Ayala, accompanied by a coworker referred
to as “Tina G,” who was wearing a cross at the time, went to
speak with Quintero. Quintero reiterated that the pentagram
was a religious object and could not be worn. When confronted
with the obvious, that another employee was wearing a reli-
gious object without objection, Quintero stated that Ayala’s
pendant was too large, that Vetrano believed it signified devil-
worship and didn’t want it worn in the store. Ayala continued
to wear her pendant outside her uniform and was sent home for
the day, although she was compensated as if she had worked a
full day.
The next incident regarding Ayala’s pentagram occurred on
February 7, 2006, several days after Ayala had participated in
leafleting outside the Union Square East store, SM Jeremiah
Martinez called Ayala aside, and told her she should either
remove or tuck in her pendant. Ayala refused to do either and
was issued a corrective action, and sent home, for failing to do
so.
Before Ayala left, she gave the pendant to Malchi, who put it
on. Martinez instructed Malchi that he had a choice either to
tuck in the pendant or be sent home for the day. Malchi had a
telephone conversation with Vetrano in which he stated that he
was too upset to continue working and wished to leave. Ac-
cording to Malchi, Vetrano said he could leave. Malchi re-
ceived a corrective action for his role in the pentagram incident.
The corrective action is dated February 15, however, it was
apparently presented to Malchi at a later date, and in conjunc-
tion with other discipline, as described below. Although Malchi
testified that Vetrano had told him that he would not be disci-
plined for this incident, such testimony is contradicted by Mal-
chi’s journal where he acknowledges that Quintero had told
him that he would be receiving written warnings for being out
of dress code and for insubordination. In addition, Malchi ad-
mitted that Quintero attempted to meet with him to discuss the
warning, but he told Quintero he was in a hurry and had to
leave.33
The General Counsel contends that Ayala and Malchi were
discriminatorily singled out for enforcement of Respondent’s
dress code and that the disciplinary actions they received were
issued in retaliation for their open union support. Respondent
contends that, after Vetrano became district manager, she in-
sisted upon stricter enforcement of the dress code and that,
thereafter, the policy was applied to all employees. Respondent
argues that neither Ayala nor Malchi were singled out for dis-
criminatory treatment. Respondent further contends that
Ayala’s pendant, due to its size, constituted a potential safety
hazard, and that both employees were disciplined for insubor-
dinate behavior.
The evidence establishes that both Ayala and Malchi were
open union supporters who participated in protests, demonstra-
tions, leafleting, and press conferences in support of the Union.
There is additionally ample evidence that Respondent was
aware of these activities. Moreover, the timing of Respondent’s
admonitions to Ayala, coming shortly after her open participa-
tion in protected conduct, supports an inference that her union
activities were a motivating factor in Respondent’s actions
toward her. However, in disagreement with the General Coun-
sel I find that there is insufficient evidence to establish that
either Ayala or Malchi were singled out for stricter enforcement
of the dress code or issued subsequent discipline as a conse-
quence of disparate enforcement of Respondent’s dress code.
Thus, assuming that I were to conclude that the General Coun-
sel had established a prima facie case of discrimination, I find
that the evidence as a whole fails to establish that Respondent
has violated the Act as alleged in the complaint.
As an initial matter, I note that the General Counsel appears
to concede in its brief that Respondent’s dress code had become
generally more strictly enforced at the Union Square East store.
The General Counsel has asserted that this occurred after and in

33 The corrective action at issue was signed by Quintero and wit-
nessed by ASM Edwin Gomez on February 17, 2006. It contains a
statement to the effect that Malchi refused to sign it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
response to employees having made their union support known;
however, regardless of the timing of or motive behind such
stricter enforcement, this is not alleged as a violation of the Act
in the complaint.34 The only violations so alleged relate to the
alleged disparate treatment of Ayala and Malchi, and there is
simply insufficient evidence to establish that either of these
employees was singled out for harsher treatment due to their
union affiliation. Rather, the evidence establishes that after
Vetrano began insisting on stricter enforcement of the dress
code, employees were being told to tuck in their shirts, remove
large jewelry, and cover their tattoos, among other things.
With regard to the discipline issued to Ayala and Malchi, the
record establishes that employees are routinely given corrective
actions for violations of Respondent’s dress code. The record
contains numerous examples of employees receiving corrective
actions and even being sent home for wearing jewelry prohib-
ited by the dress code policy, failing to tuck in their shirts, and
failing to wear the correct color clothing. In addition, Respon-
dent’s witnesses testified to a number of instances where em-
ployees were disciplined or coached for their failure to comply
with the dress code. Thus, the General Counsel has failed to
prove that either Ayala or Malchi were treated disparately from
other employees. Inasmuch as both Ayala and Malchi clearly
refused to comply with management’s directives regarding their
compliance with the dress code, which has not been alleged or
proven to be unlawful in its promulgation or general enforce-
ment, I do not find that the discipline issued to them, admittedly
for their refusal to follow the instructions of their superiors,
violated Section 8(a)(1) and (3) of the Act as alleged in the
complaint.
On another occasion, Quintero instructed Malchi to button
up his shirt, so that the white undershirt he was wearing under
his black button-down shirt would not be visible. This is al-
leged as another instance of discriminatory enforcement of
Respondent’s dress code. For the reasons set forth above, I find
that Quintero’s directive to Malchi did not constitute a violation
of Section 8(a)(1) and (3) of the Act, as alleged in the com-
plaint.35

34 Although the General Counsel contends in its brief that the stricter
enforcement of the dress code is a violation of Sec. 8(a)(1), the General
Counsel has not set forth any theory under which I might find such a
violation where the allegation has not been pled in the complaint. In
this regard, I note that the General Counsel amended the instant com-
plaint on numerous occasions during the hearing, and at no point put
the Respondent on notice that it would argue that the overall enforce-
ment of the dress code at the Union Square East store was violative of
the Act. Moreover, the General Counsel failed to develop the record
with specific evidence regarding when the dress code began to be more
strictly enforced. Upon review of the record I find that, under all the
circumstances, the matter was not fully litigated and accordingly, will
make no findings with regard thereto.
35 This incident of alleged disparate enforcement of Respondent’s
dress code with respect to Malchi is alleged in par. 18(b) of the com-
plaint. During the hearing, I reserved ruling on the General Counsel’s
motion to amend the complaint because it was not entirely clear to me
that Respondent had been placed on adequate notice of what the Gen-
eral Counsel was contending. After reading the posthearing briefs, I
find it appropriate to grant the General Counsel’s motion to amend this
3. Malchi’s alleged violations of Respondent’s
no-solicitation rule
Certain facts relating to these allegations have been dis-
cussed elsewhere in this decision. For ease of reference, I reit-
erate them here.
Prior to March 7, 2006, Respondent maintained the follow-
ing policy with regard to the solicitation and distribution of
materials:
Posting or distributing notices or other written materials on
Starbucks property at any time, without prior approval from
your manager, is strictly prohibited.
The Union had scheduled a benefit party for March 4, 2006.
Prior to that date, Malchi distributed fliers publicizing the party
to his coworkers and to customers. Quintero spoke with Malchi,
advising him that an assistant store manager had seen him giv-
ing out papers to customers while working at the bar, and that
this was a violation of the Company’s no-solicitation policy.
Malchi stated that he would not do it again. Within the week,
Malchi had a discussion with Vetrano where she told him that
he would be written up for distribution of material while work-
ing. Malchi said that under the NLRB settlement the old distri-
bution policy was invalid, and Vetrano replied that Malchi was
being written up anyway. Malchi admitted that it was “probably
not” permissible for him to be distributing literature to custom-
ers while working behind the bar.
On March 13, Malchi had a discussion about the Union with
borrowed partner36 Aiesha Mumford while both were working,
and he also gave her a union button. Then, on April 3, Malchi
worked along side borrowed partner Daniel Schwartz. They had
a conversation about working at Starbucks and how even with a
college degree, this is the sort of job one had to get, as there
were not too many jobs out there. The two discussed the fact
that they were not making enough money, and there was also
discussion of work conditions and hours, the Union, sports, and
meeting outside of work. Malchi asked Schwartz for his tele-
phone number. Malchi testified, without rebuttal, that he did
not distribute union authorization cards to either Mumford or
Schwartz.
On April 25, Malchi was leaving the store after completing
his shift, Quintero stopped him and said that Vetrano had asked
him to speak with him about his conversation with Schwartz.
Quintero said that that Malchi had solicited Schwartz and he
was not allowed to talk about the Union while working.
Subsequently, Malchi came to the store prior to the start of
his shift and spoke to Quintero about his plans to work as a
borrowed partner in another location to make up for a shifts he
had missed. Quintero told Malchi that he was not allowed to
cover shifts in other stores because he was on final warning
status. Malchi protested that he had never received a final warn-
ing. He left the store and then returned for his shift. At the time,
Quintero told Malchi that he was on final warning for solicita-
tion and the distribution of materials while working. Malchi

allegation of the complaint; however, for the reasons discussed above, I
find it to be without merit.
36 A borrowed partner is an employee who is temporarily assigned to
a location other than where he or she typically works.
STARBUCKS COFFEE CO. 23
asked why this was the first time he was hearing about this, and
Quintero said that Malchi should call for a meeting with RD
Beckman, who would make the decision about issuance of a
final warning.
On May 3, Malchi met with RD Beckman in the upper level
of the store. Quintero joined them as well. At that time, Beck-
man handed Malchi a copy of a corrective action form for the
February 7 pentagram incident, discussed above. She further
said that two prior warnings along with several coaching con-
versations had led to the issuance of a final warning. Beckman
told Malchi that he had violated the dress code, that he was
insubordinate, and that he was constantly talking about the
Union after he had been told not to, and if he continued to do
so, he would be terminated. Malchi disputed the basis for the
discipline, and complained that he had never seen the warnings
Beckman was referring to. He asked Beckman for a definition
of the Company’s no-solicitation policy. Beckman stated that
she would issue a memo outlining the discipline Malchi had
received and which would define the Company’s solicitation
policy.
Beckman prepared a summary of the meeting which she
forwarded to Wilk. In this summary she noted the following:
[Malchi] did not realize that he was on final written
warning and only had one copy of the write up. I also
stated that each time Tomer refused to sign and a witness
verified. He said he did not agree with the write ups. I said
he then had a right to write that on the form but because he
chose to either walk away or out then it was his choice.
Tomer and I discussed additional coaching conversa-
tions and write ups regarding solicitation policy while
working behind the counter. I explained to Tomer that he
could not pick up shifts at other stores while on final.
Tomer stated that he did not agree with solicitation. We
discussed that he cannot discuss on the floor while work-
ing IWW or Union. Tomer believes that that is against the
law. I also discussed with him that he had clearly been
spoken to and coached several times and he continues to
break policy. I had also said that if he was on break or off
that those conversations are his business, but while work-
ing it was inappropriate. He brought up that partners have
personal conversations on the floor behind the counter and
that what was the difference—I stated that customers
come first that it is not appropriate to have personal con-
versations while customers need to be served and no mat-
ter what the topic if another partner is offended by the con-
versation or feels uncomfortable then it should cease—
with any topic. He brought up football as an example, I
said the same thing if it makes someone feel uncomfort-
able and they have said they are not interested etc . . . it
should stop.
Beckman further advised Wilk that she had told Malchi that
she would provide him with a memo outlining the coaching
conversations that had been had with him, that she would speak
with Malchi’s new store manager and district manager to get
Malchi the hours at the Union Square East store that he needed,
that she would provide Malchi with another copy of the correc-
tive action that he refused to sign and she would clarify how
long Malchi had to wait prior to having the ability to pick up
shifts again at another store.
On May 13, Malchi met with Beckman, DM Vetrano, and
Tracey Bryant, who was about to become the district manager
for the Union Square East store. He was presented with a cor-
rective action form as well as a memorandum whose subject is
entitled “final warning.” The corrective action form references
two occasions: the March 3 occasion where Malchi “was wit-
nessed soliciting/distributing flyers in the store at the bar” and
another on April 3 where “Tomer approached a borrowed part-
ner and solicited him.”37
The memorandum entitled “final warning” makes reference
to four incidents: a February 15 corrective action for violation
of the dress code on February 7; a March 7 corrective action for
violation of the solicitation and distribution policy by distribut-
ing printed materials concerning a union party while working at
the bar; a March 13 discussion with Vetrano about a complaint
received from a borrowed partner (Mumford) regarding Mal-
chi’s solicitation of her while they both were working; and
April 3 corrective action issued because Malchi solicited a
partner to support a union while both employees were work-
ing.38
The warning further provides:
This document serves as notification of your final warning.
Please note that further infractions of our policy regarding so-
licitation and distribution or of any other Starbucks policies
will result in termination of your employment. As we dis-
cussed, while you are on final warning, you are not permitted
to work in stores other than your home store. If you demon-
strate continuous improvement in the areas listed above, for
six months, we will reevaluate. In the meantime, we also
agreed we would get the hours you needed at this store, please
speak with your store manager if you need to change your
availability to ensure you receive the hours you need.
Malchi asked why he had never been spoken to about these
matters, and Vetrano stated that Quintero had tried to speak
with him, and Malchi replied that at that point he was off the
clock and running to catch a train. Malchi then wrote a state-
ment of protest to the warning, and signed it.
The General Counsel alleges that the above-described cor-
rective actions and final warnings issued to Malchi are unlaw-
ful. The General Counsel contends that the discipline issued to
Malchi was based upon a solicitation policy that was both pre-
sumptively unlawful and disparately enforced. Moreover, the
General Counsel contends that Malchi was prohibited from
borrowing shifts to prevent him from organizing in other facili-
ties, and that Respondent’s “best practice” is merely a pretext to
restrict his movement and contact with employees. The Gen-
eral Counsel points to the fact that there is no written policy
restricting partners from borrowing other shifts when on final
warning. The General Counsel further points to the fact that
Respondent was apparently willing to give Malchi additional

37 Although this corrective action is dated March 7, it encompasses
both incidents as described above.
38 It appears from the record that this reference was to Malchi’s con-
versation with borrowed partner Schwartz.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
hours at his own store during the timeframe in question, and
argues that this undermines any legitimate reason proffered by
Respondent for enforcing the rule.
Respondent contends that in issuing discipline to Malchi it
was neutrally enforcing its dress code and its no-solicitation
policy. Respondent further contends that, although partners are
allowed to “borrow” shifts at other stores, they are not permit-
ted to do so while on final warning.
Respondent relies upon Wilk’s testimony that it is a “best
practice” that managers do not allow partners to work shifts in
stores other than their own until some agreed-upon timeframe
when their performance is brought back to an acceptable level.
In addition, Quintero testified that he told Malchi that he could
not pick up shifts at other stores while he was on final warning,
and that this was “standard.” 39 Respondent placed into evi-
dence a corrective action issued to another employee which
states, in relevant part: “On 6–25–05 Tenaja covered a shift at
54th and Broadway and did not get approval from management
or her district manager. She was told that she could not cover
any shifts outside the store based on performance issues . . . .”
The corrective action form dated March 7 references two
situations, one involves Malchi’s distribution of union-related
materials in a work area, on worktime. The General Counsel
argues that the basis for this disciplinary action stemmed from
Respondent’s earlier no-solicitation policy, the one in place
prior to the March 2006 settlement agreement. The General
Counsel argues that the former policy is unlawful, and that any
discipline that flows from it must be unlawful as well. I note
however, that the settlement agreement in question contained a
nonadmissions clause. Holding the General Counsel to its part
of this bargain, I find that they cannot seek a finding here that
the policy that formed the basis for Malchi’s discipline on this
occasion was unlawful. In any event, it is not entirely clear that
Malchi was disciplined pursuant to this earlier policy. I note
that the settlement agreement, containing the new no-
solicitation policy was entered into on March 7, which is the
date of the corrective action. Moreover, Malchi acknowledged
that it was not appropriate for him to be distributing materials
while behind the counter while working.
The General Counsel further contends that Respondent dis-
criminatorily restricted union-related solicitations while allow-
ing others to take place. In support of this contention, the Gen-
eral Counsel presented evidence that Respondent has, at times,
allowed various types of materials to be distributed in work
areas. For example, in October 2005, employee Christina
Stumph distributed invitations to a poetry reading and several
employees attended the show, including ASM Doran. In the
spring of 2006, a card for a departing employee was passed
around for signature. In January 2007, another employee circu-
lated a purchase form for Girl Scout Cookies and employees as
well as SM Cynthia Alecia completed the form. ASM Martinez
once attempted to sell Malchi a pair of pants and Montalbano
testified that he distributed fliers for a rock concert to cowork-

39 When asked what the rationale for this “best practice” was, Beck-
man stated: “Why would we want to send a person with performance
issues to another location?”
ers at his store, and distributed CDs of his band to customers
and coworkers.
It is true that the General Counsel adduced evidence of cer-
tain instances where employees engaged in solicitation while
working. I do not find, however, that the evidence adduced
regarding these apparent solicitations was sufficient to meet the
General Counsel’s burden of proving that Respondent discrimi-
nated against union-related solicitations while consistently
tolerating other types of solicitation for nonunion matters dur-
ing in work areas during worktime.
Notwithstanding the foregoing, I find that the March 7 cor-
rective action was discriminatory because Malchi was also
being cited for his discussions of the Union with Schwartz,
pursuant to Respondent’s discriminatory “no-talking” rule. As
there was no evidence adduced that Malchi did anything but
speak about the Union, among other topics, to Schwartz, or that
these discussions interfered with either employee’s perform-
ance of their job responsibilities or otherwise disrupted opera-
tions at the store, I accordingly conclude that to the extent Re-
spondent has relied upon this incident to support the corrective
action, it is unlawful. See, e.g., Tuscaloosa Quality Foods, Inc.,
318 NLRB 405, 411 (1995); Hyatt Regency Memphis, 296
NLRB 259 (1989) (discipline of employees pursuant to dis-
criminatory rules adopted as a result of union campaign is
unlawful).
Although Respondent argues that it lawfully issued disci-
pline to Malchi for distribution of written materials while work-
ing, the fact remains that Respondent chose to rely further upon
an occasion where Malchi was engaged in conduct protected by
the Act and was disciplined pursuant to an unlawful rule. Fur-
ther, there is no evidence that the March 7 corrective action was
presented to Malchi contemporaneously or at any time prior to
his protected conversation with Schwartz on April 3. Accord-
ingly, I find that Respondent has failed to meet its burden under
Wright Line to show that it would have issued the March 7
corrective action to Malchi notwithstanding his protected con-
duct. See Mid-Mountain Foods, Inc., 291 NLRB 693, 699
(1988).
Similarly, I find that the final warning issued to Malchi on
May 13 is unlawful in that it relies, in significant part, on Mal-
chi’s alleged breaches of Respondent’s unlawful no-talking
rule. Accordingly, any subsequent disciplinary action taken by
Respondent against Malchi based in whole or in part on this
warning is similarly violative of the Act, unless Respondent can
show that it would have taken the same action against him,
absent consideration of the unlawful warning. Joe’s Plastics,
Inc., 287 NLRB 210, 211–212 (1987); Mi-Mountain Foods,
supra. By Respondent’s own admission, its restriction on Mal-
chi’s working shifts at other stores was based upon the fact that
he was on final warning. Moreover, Respondent has failed to
come forward with neutral, nondiscriminatory reasons for its
prohibition on Malchi’s working at other Starbucks locations.
Accordingly, I find that such restrictions were also discrimina-
tory and in violation of Section 8(a)(1) and (3) of the Act, as
alleged.40

40 The General Counsel’s motion to amend par. 11 of the complaint
is granted. The General Counsel has made it clear that this allegation of
STARBUCKS COFFEE CO. 25
4. The alleged unlawful discharge of Joseph Agins Jr.
a. Background
Respondent hired Agins in May 2004 as a barista, working at
its 9th Street store. It is undisputed that Agins was an open and
active union supporter. Both the General Counsel and Respon-
dent rely, for varying reasons, on the assumption that Agins
was not identified as a union supporter until the public declara-
tion at the 9th Street store on May 28, 2005. As I have noted
above, however, Smith identified Agins as a likely union ad-
herent in an April 28 e-mail to Wilk. During the period from
May to December 2005, Agins was an open and vocal union
adherent and participated in various union sponsored events
including leafleting and protesting in support of the Union.41
Agins was discharged on December 12, 2005, by Respon-
dent, and there were two incidents preceding his discharge, as
will be discussed below.
b. The May 14 incident
On May 14, 2005, Agins was working during a period of
time when the store was experiencing a particularly high vol-
ume of customers due to a local street fair. At the time, there
were three employees on duty: Agins, ASM Tanya James,42 and
another barista, Leonella Talverez.
At some point during the afternoon, a group of customers
came in and asked for blended drinks, known as Frappuccinos.
Due to the volume of orders, Agins asked ASM James for as-
sistance in serving the customers. James was busy at the time,
refilling the self-service bar where customers obtain milk and
other items they may wish to put into their drinks. According to
Agins, James told him he would have to wait, in a manner
which, as he testified, he perceived as disrespectful. As Agins
recalls it, he requested assistance again, and was responded to
in a similar manner. James eventually came over to assist Agins
and he admits to saying that it was about damn time she came
on the line. He further acknowledges that he placed the blend-
ers in the sink in a manner which caused a loud noise.
James testified that, after she told Agins he would have to
wait until she stopped filling the condiment bar for help on the
line, Agins lost his composure, and said, “[T]his is bullshit.” At
that point James told Agins that he needed to keep his compo-
sure in front of customers. As James has asserted, Agins then
stopped working and leaned against the counter telling James to
“do everything your damn self.” James went to assist serving

the complaint applied solely to Respondent’s restrictions on Malchi’s
picking up shifts at other Starbucks locations and, moreover, based
upon the testimony adduced at the hearing and the arguments set forth
by the General Counsel and Respondent in their respective briefs, I find
that the issue has been fully litigated.
41 Agins participated in the June 2005 demonstrations at the Second
Avenue and 17th Street stores. He frequently distributed union litera-
ture outside various Starbucks locations, where he was observed by
management. He had discussions about his support for the Union with
his store manager and he was one of those IWW supporters whose
activities were included in Respondent’s periodic recaps of union activ-
ity.
42 James was an ASM for approximately 3 years. She commenced
working at the 9th Street store in April 2005. She was promoted to store
manager in May 2007.
the customers and told Agins to pull his till and leave for the
day. Agins pulled his till but stated that he would not leave.
Agins went into the back room where, after a telephone discus-
sion with SM Julian Warner, he returned and clocked out.
Sometime thereafter, James provided a written account of the
event. On Monday, May 16, DM Smith forwarded this account
to Wilk with an apparent recommendation that Agins be dis-
charged for the incident. Later that day, Wilk responded, noting
that: “Being there is nothing in his file, I can only assume that
this outburst was out of character for Joe. From the comment he
made, ‘who did the schedule’—is it true that they were under-
staffed, which perhaps led to his frustration? I think we need to
figure all of that out. Assuming it was a ‘one off’ my recom-
mendation would be a FWW [final written warning] for Joe. Its
[sic] certainly not OK to speak to a manager in that manner or
anyone for that matter.”
According to Respondent, SM Julian Warner then issued a
written warning to Agins, which states as follows:
Joe admitted to using profanity in an undertone to the assistant
manager, Tanya James when he asked her for help in prepar-
ing drinks and she responded that she was busy doing a ‘bus’
and that she would help him in a minute. Joe became very
agitated and shouted at Tanya in the presence of guests and
fellow partners. As stated by Tanya, Joe became insubordi-
nate when she asked him to discontinue this behavior and to
punch out and leave the store. Insubordination and the lack of
respect and dignity in the workplace are not in accordance
with the policies and standards of operation at Starbucks Cor-
poration. Therefore, this corrective action serves as a final
warning that the aforementioned behavior, if repeated will re-
sult in termination of employment at Starbucks Corporation.
According to Agins, he never received this warning. The
warning, placed into evidence by Respondent, is dated May 15,
and although it is signed by Warner, it is neither signed by
Agins, nor is his refusal to sign documented. Nor is the admini-
stration of the warning witnessed by another manager, in ap-
parent contravention to Respondent’s usual practice, as docu-
mented elsewhere in the record.43
In any event, Agins was suspended for a period of several
days and then called back into work. The record reflects that
subsequently, he apologized to Smith for using “foul language
on the floor in front of customers” and also apologized to James
for his “attitude” on the floor.
c. The union button incident
On May 18, 2005, a complaint had issued against Respon-
dent alleging, among other things, that Respondent had unlaw-
fully refused to allow employees to wear buttons expressing
their support for the Union. By that time, employees at the Un-
ion Square East store had been wearing buttons without inci-
dent, but Smith had continued to insist that employees at his
store, including Montalbano, remove such buttons on pain of

43 Wilk testified that the usual practice is to ask an employee sign a
corrective action. If the employee refuses to do so, then the manager
administering the discipline will sign it, document the employee’s
refusal to sign and have another manager act as a witness. This practice
is documented in the record herein on numerous occasions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
being sent home. Montalbano and other employees had faced
such a situation on November 20. A group of union supporters
decided to support Montalbano in a “Union button” action dur-
ing Montalbano’s shift the following evening. Thus, during the
evening of November 21, Agins (who was off duty at the time),
Malchi, Ayala, and several other individuals went to the 9th
Street facility. James was the manager on duty at the time. The
group took a table at the rear of the facility, near the restroom.
According to Montalbano, when the group entered, wearing
union pins, he approached James and told her that he was going
to put on a union pin. James stated that she understood and
went into the back room. She subsequently emerged and told
Montalbano that she had spoken to Smith who stated that as
long as Montalbano was working, and not disrupting anything,
he could continue to wear the pin. James stated that she did not
remember Montalbano putting on a union pin or contacting
Smith by telephone shortly after the union supporters came into
the store that evening.
At some point shortly after the group entered the store, Agins
was standing near the service bar when a customer, later identi-
fied as ASM Ifran Yablon, entered the store to purchase a
drink. Yablon is a manager from a Starbucks facility on the
Upper West Side who is also a regular customer at the 9th
Street store.
By way of background, it should be noted that Yablon was
not unknown to Agins. Not only did Agins recognize Yablon as
a customer, but the two had some personal history, as well.
During the prior summer, the Union was leafleting at a com-
pany-sponsored event intended to promote its bottled water
product. Agins was there, along with his father, who was wear-
ing an IWW hat. Agins’ father pointed Yablon out and reported
that he had made some derogatory remarks relating to Agins’
father’s age and apparent support for the Union. Agins ac-
knowledged that he did not personally hear Yablon make these
comments.
It is apparently undisputed that, upon seeing Agins wearing a
union button, Yablon engaged Agins in conversation, asking
what the union button was for. When Agins responded, Yablon
made some comments in support of Starbucks and the two men
engaged in a dialogue, which then became heated. There are
essentially two segments to the narrative presented by the wit-
nesses herein. While the testimony of the witnesses varies in
some detail, the overall picture which emerges of Agins’ initial
argument with Yablon is not subject to significant dispute.
Where the accounts of the General Counsel’s and Respondent’s
witnesses differ concerns whether Agins continued to shout,
use profanity and disrupt business after his companions inter-
vened to stop the argument.
Agins testified that after the group entered the store he was
talking to Montalbano and Yablon initiated a conversation
about the Union. He told Agins that employees did not need a
union because they had health benefits, a 401(k) plan, and stock
options. He made some reference to the Starbucks mission
statement. Yablon stated that the Union only worries about
business and taking dues from members and not defending
workers. Agins testified that things then “started to happen
really fast and get really loud. He was in my face and basically
we started having an argument. He got into my face and raised
his hands up.” Agins testified that he told Yablon that he didn’t
want to fight him, and that he was there for a union button ac-
tion. Montalbano told Agins to calm down and Malchi pulled
him away and he went to sit down. Sometime later, James ap-
proached him and asked him what had happened. According to
Agins, he told James that Yablon had “disrespected” his father
during the summer and that he had gotten very loud with Agins.
Agins told James that he was not there to fight or disrupt busi-
ness, but for a peaceful union button action. James told him that
he had been loud and obnoxious and had disrupted business,
and she was going to tell Smith about the incident.
In his testimony, Agins admitted that he became angry dur-
ing the exchange with Yablon and used profanity, and claimed
that Yablon did so as well. During his cross-examination, Agins
admitted that Yablon had told him to “get out of my face.”
Agins further admitted that he told Yablon, “You can go fuck
yourself, if you want to fuck me up, go ahead, I’m here.” In
addition, Agins acknowledged that during the argument, he
brought up Yablon’s apparent insult of his father the prior
summer. As Respondent brought out in cross-examination,
Agins’ pretrial affidavit does not make reference to any profan-
ity having been used by Yablon.
According to Malchi, the group entered the store, wearing
union hats and buttons. They greeted Montalbano, and most
members of the group went to sit at a table near the back of the
store, about 10 to 15 feet from the counter area. Agins remained
at the counter, talking to Montalbano. A short while later,
Yablon came in and purchased a drink. According to Malchi,
he noticed Agins and Yablon talking, but was too far away to
hear what they were saying; however, he did see Yablon point
at Agins’ union button. At that point the conversation was get-
ting loud, and Malchi could make out that it had something to
do with the Union. Malchi called Agins over to the table, and
Agins stated that Yablon was disrespecting him and talking
against the Union. As Malchi testified, Yablon approached the
group at the table, and made some comments to Agins, but
Malchi could not recall what he said. At this point, according to
Malchi, Agins had become upset and Malchi told him to talk to
him and ignore Yablon. Then, ASM James came over and
spoke to Yablon. Malchi was speaking to Agins, and he did not
hear what she said to him. As Malchi testified, James then es-
corted Yablon out. The group remained at the store for ap-
proximately 10 minutes, and then left. On cross-examination,
Malchi acknowledged that Agins had raised his voice to
Yablon, but denied hearing any use of profanity.
Ayala testified that after the group entered the store, she
went to use the rest room. When she came out, she saw Agins
arguing with a man, whom she did not know. The two were
getting “pretty loud” and the man was talking aggressively with
his hands. Ayala did not remember much of the conversation,
but recalled that it had something to do with the Union. As she
testified, once they started getting “aggressive” the group
pulled Agins over to the side and sat him down. James came
over and told the group to leave. Ayala asked Agins who the
man was, and he said that he worked for Starbucks and had
disrespected his family. On cross-examination, Ayala acknowl-
edged that both men had raised their voices and used profanity.
STARBUCKS COFFEE CO. 27
Montalbano testified that after Yablon purchased his drink,
he pointed to the union button Agins was wearing and asked
why employees needed a union. Yablon stated that employees
did not need a union; that the Company has great benefits and
gives benefits to part-time employees. Agins replied that the
Union is good for the workers and gives them a voice. Accord-
ing to Montalbano, at this time Agins was standing by a table
near the merchandise display. Then, the two started getting into
a debate, and moved toward each other until they were about 3–
4 feet apart. They were arguing about whether the Union was
good or bad and their voices got louder. Both men also started
making hand gestures. According to Montalbano, at some
point, James came over to Agins and told him that he needed to
calm down. Yablon left the store. After Montalbano told the
group that he would be allowed to wear his union button while
working, they left. Montalbano denied hearing Agins use pro-
fanity.
According to James, Agins entered the facility with a group
of approximately four others and began eating samples of cake
left on the counter. They went to sit down. Agins began speak-
ing with Montalbano. At this time, James was behind the pastry
case, making coffee. Yablon entered and purchased a drink.
James acknowledged that she heard Yablon address Agins first,
saying something about the union pin that Agins was wearing.
Then, the two men exchanged words. James initially testified
that she did not hear what was said between the two at the time;
she later acknowledged that she heard Agins respond to Yablon
by stating that the pin was for a union, and that employees were
trying to organize a union.
According to James, the tone of the discussion was “fine”
initially, but at some point she could hear Agins’ voice over the
coffee grinder. She heard Agins say: “You gotta stop disre-
specting me. Stop fucking disrespecting me. You disrespected
me in front of my pops, my dad.” James testified that she told
Agins to calm down, and the customer walked over to the con-
diment bar, fixed his coffee, and then left the facility.
In contrast to the testimony of the General Counsel’s wit-
nesses who assert that Agins then sat at the table with them
until they left some 10 minutes later, James testified that, as
Yablon was walking out the door, Agins kept yelling. James
asserts that she told him if he did not calm down she would call
the police, and Agins said, “No. No. I’m tired of this shit. I’m
tired of this shit.” James’ testimony continued as follows:
Q. [COUNSEL FOR RESPONDENT]: And where were you
standing when this happened? When the customer exited
the store where were you?
A. [JAMES]: I was about two feet from the counter. I
was about two feet from Joe. So I was pretty much directly
in the middle. As Joe was coming—he was still trying to
talk to the customer behind me who was already walking
out the door. And I was asking him to ‘calm down, calm
down.’ And he kept coming forward, kept coming forward
saying ‘No, no. no. I’m tired of this. You don’t under-
stand.’ So, as he’s coming forward, I’m taking steps back
asking him to calm down. And he wouldn’t calm down.
And at that time that’s when the crowd he was with was
trying to pull him back. And so he was saying, ‘No, no,
no.’
Q. And who was he saying, ‘No, no, no’ to?
A. Me. To me.
Q. And in what direction was he walking?
A. He was walking toward me and I was walking
backwards.
Q. And what was the volume of his voice during this
time?
A. It was a volume that was very loud. It was the be-
ginning of the week, and usually people are on their lap-
tops, they’re studying and people had already turned
around and was looking. He was causing a scene.
Q. And did he use any profanity as he was walking
toward you?
A. Yes.
Q. What did he say?
A. “I’m tired of this shit.”
Q. And did he say this more than once?
A. Yes he did.
Q. And during this entire exchange—once the cus-
tomer left, was his voice raised the entire time?
A. Yes. Yes it was.
On cross-examination, James admitted that when she came
out from behind the coffee bar, she initially approached
Yablon, asking him to “leave it alone.” She further admitted
that she did not speak with Agins at this time. James did not
contact anyone from management about the incident during the
evening in question.
At the end of the evening when James was closing the store,
Montalbano approached her and apologized about what had
happened earlier.
Yablon was not called to testify, and no explanation of why
he was unavailable was proffered by Respondent.
d. Respondent’s written statements documenting
the November 21 incident
The record establishes that store managers are expected to
complete an incident report whenever anything out of the ordi-
nary occurs under their supervision. James testified that she
prepared an incident report outlining the events of the evening,
on a form maintained by Respondent. During James’ cross-
examination, she was shown an exhibit by counsel for the Gen-
eral Counsel, which she identified as being part of the incident
report she prepared. As James admitted, the page she was
shown contained five lines of handwritten narrative. James
stated that she was “pretty sure” that she had written additional
material which was not reflected in the exhibit. Respondent
failed to offer testimony regarding why James’ initial statement
was never offered into evidence or what may have happened to
anything further James may have written that evening.
One week later, an e-mail, dated November 28, was sent to
Smith purporting to describe the events in question from a first-
person perspective (i.e., from James’ point of view). The e-mail
was not identified as emanating from James, only from the 9th
Street store. Smith testified that it had been sent to him either
by James or Warner. Significantly, James was not shown this
document for identification; nor did she testify that she pre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
pared or sent an e-mail account of the events of the evening.
Inasmuch as the narrative purports to be a first-person account
by James, who offered no testimony regarding its preparation
or existence, I conclude that this document was authored by
someone else. I further find that, inasmuch as it purports to
recollect events from James’ point of view, it is unreliable hear-
say.
On December 1, Wilk sent an e-mail to Smith requesting that
Smith provide a copy of the corrective action which had been
administered to Agins as a result of the May 14 incident, as she
did not have a copy at the office.44
Then, on December 5, James was called to Wilks’ office
where she signed a prepared statement describing the events of
the evening. In relevant part, this statement provides as follows:
Joe entered into a conversation with Peter at the regis-
ter, where they talked for a few minutes. A customer ar-
rived and Peter rung up his order. The customer is an
ASM from a Starbucks store on the Upper West Side of
Manhattan and is a regular customer at our store.
Joe continued to stand by the register, so the customer
asked Joe, ‘What’s the pin for?’ Joe responded that they
were trying to start a union and proceeded to describe the
reasons why, including his view that the partners were not
getting enough hours. The customer responded that ‘There
are a lot of stores in the city [where you could pick up
hours], so that’s not an excuse.’ The two continued talk-
ing, but at this point I could not hear their exact words
from my position behind the counter.
Soon, however, Joe’s voice started rising and he be-
came agitated and was becoming more aggressive toward
the customer. I walked out from behind the counter and
asked the customer to ‘leave it alone,’ at which point he
chuckled and backed off. Joe was pacing nearby and said
to the customer is a loud voice, ‘You don’t think I remem-
ber you disrespecting me in front of my father. I remember
that shit.’
I approached Joe and told him ‘Joe, you need to calm
down. You’re disturbing the customers.’ Joe responded,
‘Fuck that!’ At that point, it was clear that Joe was ex-
tremely agitated. I felt physically threatened, since I had
seen him lose his temper in the past and was concerned
that he might become violent. (I am only 5 foot 2 inches
tall, and 100 pounds, and Joe is considerably heavier and
stronger than I am.) I repeated, ‘you have to calm down or
I’m going to have to call the police Look at all the cus-
tomers who are disturbed.’ Joe’s friends stepped in to try
to pull him back physically, but he was resisted them.

44 I note that Smith testified that Wilk had requested, and was pro-
vided with, copies of all discipline. I further note, as outlined above,
that Wilk had previously instructed managers that she be kept advised
of discipline meted out to union supporters. Thus, it appears that, fully
six months after the event in question, Wilk had still not been provided
with a copy of the final written warning allegedly delivered to Agins
based upon the events of May 14. I find that this fact, in conjunction
with the other circumstances described herein, corroborates Agins’
testimony that the warning was never delivered to him.
Joe’s friends escorted him to their table in the back,
but Joe continued with his loud and disruptive behavior,
calling out in a loud voice, ‘This shit don’t make sense.
Fuck this.’ Because he was continuing to cause a disrup-
tion, I walked over and told Joe, ‘You’re still too loud; you
need to calm down.’ Joe responded that, ‘You know, he
made me mad,’ and I answered, ‘You still need to calm
down; it’s really, really loud and all the customers are
looking.’
Joe and his friends remained in the store for approxi-
mately 10 more minutes and then left.45
James testified that Wilk had taken her handwritten report,
which was a “scribble scrabble” and made only stylistic
changes, but did not change the substance of the report. On
cross-examination, James admitted that, while she knew that
Yablon was an employee, because he had a partner discount
card, she did not know he was an ASM at another Starbucks
location.
Smith testified that he received a telephone call about the in-
cident from either James or Warner and then contacted Wilk.46
He then sat down with Agins, telling him that “we have been
here before and are at the same place again.” According to
Smith, he told Agins that there would be a meeting at a later
date to discuss what would happen to him. Smith testified that
he had wanted to terminate Agins, but was awaiting advice
from Wilk as to how to proceed. In his testimony about the
event which precipitated Agins’ discharge, Smith stated: “This
is the chair incident, correct? Where he threw the chair around
or something?” Under cross-examination, Smith acknowledged
that he could not independently recall the details of the incident
which led to Agins’ termination, and kept requesting to be
shown documentation.
e. Agins is discharged
On December 12, Agins called into work because he was
running late. When he arrived, Warner instructed him not to
clock in, and made reference to the incident with Yablon. War-
ner told Agins that he wanted him to sit down and speak with a
representative from human resources (identified as Partner
Resources Manager Nicole Mosliak). Agins wanted Montal-
bano to act as his witness, but his request was denied. Montal-
bano told Warner that it was illegal to fire an employee unless
he was on the clock, and Warner allowed Agins to clock in.
Agins went to the rear of the café, where Mosliak was sitting
and asked why he was not being allowed to work, and was told
it was because he had disrupted business. Agins asked if it was
because he was involved with the Union and Mosliak replied
that there was no Starbucks Workers Union.
Mosliak gave Agins a paper and pencil and asked him to
write a statement about the Yablon incident, and although he
took some notes, he did not provide a statement to Respondent.

45 At the time this exhibit was proffered, Respondent stated that the
document was “not being offered for the truth of the statement” but
rather as a record of an investigation as conducted by Wilk.
46 Smith was not specific about when he received this information.
As noted above, James testified that she did not contact anyone from
Starbucks’ management on the evening in question.
STARBUCKS COFFEE CO. 29
Agins was told that he was discharged. He claims that, at the
time, nothing was said about his having been placed on final
warning.
Neither Warner, who no longer works for the Company, nor
Mosliak, who does, testified herein. According to Smith and
Wilk, Warner could not be reached.
Wilk testified that she spoke with Yablon and James about
the November 21 incident. She then consulted with Mosliak,
company attorneys, and Smith. She asserted, however, that she
merely made a recommendation as to termination and the final
decision was made by SM Warner. However, Smith (who was,
after all, Warner’s superior) testified he does not necessarily
terminate partners, but contacts partner resources to make sure
that “we are doing the right thing with every partner.” Accord-
ing to Smith, partner resources seeks his opinion and then there
is coaching on what has been done in the past with these kinds
of situations. On cross-examination, Smith confirmed that he
had a “small role” in the determination that Agins would be
discharged, and that he was not present when the decision was
made. According to Smith, Agins’ discharge was implemented
because “Tracy felt we had enough to support that termination,
just as we did the previous termination of Alex Diaz.”47
After Agins was discharged, Warner filled out a partner ac-
tion notice (PAN) memorandum to document his termination.
Warner indicated that Agins would be ineligible for rehire for
the following reasons: “Partner was insubordinate and threat-
ened the store manager. Partner strongly support [sic] the IWW
union.”
f. Analysis and conclusions
The General Counsel contends that Agins was putatively
fired for conduct which was part of the res gestae of concerted,
protected activity, i.e., the union button action, and that under
Atlantic Steel Co., 245 NLRB 814 (1979), his conduct was not
sufficiently egregious to lose the protection of the Act. Alter-
natively, the General Counsel argues that Respondent seized
upon Agins’ argument with Yablon as pretext and, accordingly,
if analyzed under Wright Line, the evidence establishes a prima
facie case that Agins’ union activities were a substantial or
motivating factor in his discharge and Respondent has failed to
meet its burden of showing that it would have discharged Agins
notwithstanding his protected conduct.
Respondent argues that Agins’ conduct was not protected by
the Act and that Agins was discharged due to repeated acts of
abusive, insubordinate and disrespectful behavior toward his
supervisors, as well as profane outbursts and inappropriate
behavior directed toward customers. Respondent further argues
that even if it were to be found that Agins had engaged in con-
duct protected by the Act, it has met its it has met its burden
under Wright Line of demonstrating that it would have dis-
charged Agins notwithstanding his union activities.
As the Board has held, “when an employee is disciplined for
conduct that is part of the res gestae of protected concerted
activities, the pertinent question is whether the conduct is suffi-

47 Diaz was a union supporter who had been discharged, who was
referenced in Wilk’s May 16 e-mail to Smith recommending that Agins
receive a final written warning for his conduct on May 14.
ciently egregious to remove it from the protection of the Act.
Noble Metal Processing, Inc., 346 NLRB 795 (2006), quoting
Stanford Hotel, 344 NLRB 558 (2005). The Board has ac-
knowledged that an employee’s right to engage in concerted
activity permits some leeway for impulsive behavior, which the
Board balances against the employer’s right to maintain order
and respect in the workplace. Verizon Wireless, 349 NLRB
640, 642 (2007) (citing Piper Realty Co., 313 NLRB 1289,
1290 (1994)). Where an employee directs profane and disre-
spectful comments toward a supervisor while engaging in oth-
erwise protected activity, the Board has found such conduct to
lose the protections of the Act. See, e.g., Daimler Chrysler
Corp., 344 NLRB 312, 317 (2005). However, there are also
circumstances where the Board has found that an employee’s
use of profane or derogatory language does not strip that em-
ployee of the protections of the Act. See Felix Industries, 331
NLRB 144, 146 (2000), enf. denied and remanded 251 F.3d
1051 (D.C. Cir. 2001), on remand 339 NLRB 195 (2005).
Respondent argues in the first instance that Agins’ conduct
was not protected. Respondent contends that the “delegation”
referred to by witnesses for the General Counsel “merely hung
out at the store without purchasing anything or attempting to
speak with any manager regarding their terms and conditions of
employment.” However, as the General Counsel points out, on
the evening in question, Agins and his fellow union supporters
went to the 9th Street store as part of a planned action to sup-
port Montalbano in his federally-protected right to wear a union
button at work. Three days earlier, the NLRB Regional Office
had issued a complaint alleging that Respondent had unlawfully
prohibited employees from wearing union insignia at work, and
Montalbano, among others, had been among those previously
sent home for doing so. In fact, on the prior day, Smith had told
employees at the 9th Street store that if they did not remove
their pins they would be sent home. These individuals all wore
union buttons and other insignia and, when they arrived,
Montalbano put on a union pin as well. In agreement with the
General Counsel I find that generally this was concerted, pro-
tected conduct. This conclusion does not, however, answer the
question of whether, during the course of events that ensued,
Agins engaged in conduct otherwise unprotected by the Act.
Respondent notes that the exchange between Agins and
Yablon involved a discussion of Yablon’s disrespectful com-
ments toward Agins’ father during the Company’s bottled wa-
ter promotion, and argues that such comments were of a per-
sonal nature, unrelated to concerted action. It is also the case,
however, that Yablon initiated the discussion with Agins by
commenting on the union pin and making comments as to why
employees at Starbucks did not need a Union. Based upon the
well-documented evidence that Respondent closely tracked
union activity in its stores, and communicated information
about this activity to its managers, I find that Yablon would
have known what the button signified and therefore conclude
that his query was meant to be confrontational. It is also the
case that the comments allegedly made by Yablon toward
Agins’ father arose from protected conduct Agins had been
engaged in during the water promotion and related specifically
to a showing of support for the IWW. Thus, even assuming that
a portion of Agins’ argument with Yablon dealt with what he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
perceived as a personal insult, this discussion took place within
an overall context of protected activity. I do not find, therefore,
that the fact that Agins brought up a personal issue at this time
made his interaction with Yablon unprotected in its entirety.48
(1) Credibility resolutions
Then, there is the nature of Agins’ alleged misconduct itself.
In order to evaluate this, I must assess the credibility of the
various witnesses who testified regarding the events in ques-
tion, and the reliability of other evidence proffered by the Re-
spondent. I find that certain of the General Counsel’s witnesses,
in particular Malchi and Montalbano, were shading their testi-
mony in an apparent attempt to protect Agins, particularly inso-
far as they denied hearing him use any profanity, a fact which
Agins and Ayala admitted. Moreover, the accounts of all of the
General Counsel’s witnesses are not fully consistent with re-
spect to certain details. I find, however, that these inconsisten-
cies would be characteristic of witnesses testifying truthfully,
from their best recollection, rather than from some previously
agreed-upon version of events. I further note that, to a large
extent, the general parameters of the account offered by the
General Counsel’s witnesses are corroborated by James’ testi-
mony, insofar as she has described Agins’ initial interaction
with Yablon.
Thus, based upon the credible testimony, and the inherent
probabilities of the situation, I find that the incident in question
was precipitated by Yablon who asked what the button Agins
was wearing was for; that the two men began a discussion of
the relative merits of the Union and the benefits Starbucks of-
fered to its employees; that the discussion escalated into an
argument; that Agins made reference to Yablon’s perceived
insult of his father during the prior summer and that both men
made hand gestures and used profanity.49 I further find that

48 Compare Scooba Mfg. Co., 258 NLRB 147, 149 (1981), enf. de-
nied 694 F.2d 82 (5th Cir. 1982) (per curiam), cert. denied 466 U.S.
926 (1984). In Scooba Mfg., an employee had a “vigorous” argument
with her supervisor that was prompted by the employer’s decision to
fire her son. The argument escalated and then turned to the own em-
ployee’s work performance and absenteeism. Before leaving the super-
visor’s office, the employee angrily proclaimed: “It would be nice if it
[sic] was a union here. A whole lot of things going on wouldn’t be
going on.” The Board found that the employee’s discharge as a result of
this heated dispute violated Sec. 8(a)(1) of the Act. The Fifth Circuit
denied enforcement of the order, concluding that the employee’s con-
duct was not concerted because the employee was not acting on behalf
of her fellow employees and because she had never discussed unioniza-
tion with her coworkers. The court concluded that her remark was “the
product of a purely personal dispute.” 684 F.2d at 84. As an initial
matter, I note that, in the underlying case, the Board found that the
employee had engaged in protected conduct, notwithstanding the fact
that her comment was an outgrowth of a personal dispute. Moreover,
the facts surrounding the Agins incident are more compelling than
those in Scooba Mfg. In that case, there was neither a history of collec-
tive action nor an indication that collective action was contemplated by
employees. Here, by contrast, any personal dispute was preceded by
and arose within the confines of protected conduct.
49 As noted above, Agins’ pretrial affidavit does not mention that
Yablon used profanity on this occasion. While this is a significant
omission to be sure, I do not find it sufficient to discredit his testimony
on this issue. See Gold Circle Department Stores, 207 NLRB 1005,
Agins’ companions intervened to stop the argument and he
withdrew to a table near the rear of the facility where the group
had been situated. I additionally find that after James ap-
proached Yablon to and told him to “leave it alone,” he finished
preparing his coffee and left the facility. I find that James sub-
sequently came over to admonish Agins, but he remained
seated with the group, and did not use profanity or make threat-
ening gestures toward James. I further find that Agins and the
others remained in the store for a period of some 10 minutes,
without further incident, and then left. It is undisputed that
James contacted neither Starbucks management, nor the police
regarding Agins’ purported misconduct during the course of the
evening.50
For various reasons, which are discussed below, I do not
credit significant portions of Respondent’s account of events,
which I find to be overblown and to a large extent, inherently
improbable. In particular, I do not credit James’ testimony that
Agins resisted the efforts of his companions to intercede in the
argument, and continued to follow Yablon toward the door. I
do not credit her testimony that as Agins proceeded forward,
James interceded to calm him down but that he continued to
press toward the door and shout profane comments. As noted
above, I give no weight to the November 28 e-mail which pur-
ports to describe Agins’ misconduct, and, for the reasons dis-
cussed below, I find the account James signed on December 5
was not an accurate reflection of her initial statement about the
events of the evening and, moreover, that it contradicts her
sworn testimony herein in certain material respects.
(a) Alleged history of composure issues
Both James and Smith testified that Agins had a history of
composure issues predating the May 14 incident. As Respon-
dent argues in its brief, in a composite summary of witness
testimony (quoted below with transcript citations omitted),
these witnesses testified that:
Throughout his tenure as a barista for Starbucks, Agins dem-
onstrated an inability to maintain his composure while work-
ing. In particular, Agins would ‘get very agitated when on the
floor or if confronted by a customer.’ He lost focus very easily
and would become ‘emotional’ and ‘erratic in his behavior.’
Once after a miscommunication with a customer about a
drink order, Agins became ‘agitated’ and started ‘pounding’
his hand on the counter and raising his voice toward the cus-
tomer. Agins’ voice became so loud that others in the store
turned their heads to see what was happening. On more than
one occasion, Agins’ managers had conversations about his
need to maintain his composure while working.
I noted that during his testimony, Agins appeared to be
highly anxious and predisposed to emotional responses. Yet,
the fact remains that Agins, during his tenure with Respondent,
would have received at least two, and possibly three perform-

1010 fn. 5 (1973). In this regard, I note that Agins’ testimony was
corroborated by Ayala, and was not rebutted by James.
50 As noted above, I credit Montalbano’s testimony that James had
previously telephoned Smith about whether Montalbano could continue
to work while wearing a union button.
STARBUCKS COFFEE CO. 31
ance evaluations.51 None of these were entered into evidence.
Based upon other similar documents which are in the record, I
find that such difficulties as Respondent has described would
have been addressed and documented in such evaluations,
should they have caused difficulties with Agins’ work perform-
ance. In particular, employees are evaluated on whether they
act with a “customer comes first” attitude and whether they
“maintain[ ] a calm exterior presence during periods of high
volume or unusual events . . . .” In other areas of the perform-
ance evaluation, employees are rated in the following area:
“Composure—Remains calm, maintains perspective and re-
sponds in a professional manner when faced with tough situa-
tions.” There is no evidence that Agins received unfavorable
ratings in any of these areas. Nor was there any prior documen-
tation of inappropriate behavior in the form of warnings or
coaching conversations with supervisory personnel. In this
regard, I note that as of May 2005, Wilk noted in her e-mail to
Smith that there was no history of such problems in Agins’
personnel file, and Smith did not reply to the contrary. I con-
clude, therefore, that Respondent’s posthoc characterization of
Agins’ interpersonal difficulties as reflected in his work per-
formance is exaggerated, at best, and calls into question the
veracity of Respondent’s assertions relating to Agins’ alleged
misconduct.
(b) The written documentation relied upon by Respondent
Moreover, there is the issue of the written documentation in-
troduced into evidence by Respondent which purports to de-
scribe Agins’ alleged misconduct on November 21. As noted
above, James’ initial incident report was never placed into evi-
dence by Respondent, and there was no testimony as to why it
could not be produced. Then, there is the puzzling issue of the
November 28 e-mail, written from James’ first-person perspec-
tive by an unknown author. Although I give the contents of this
document no weight as regards its description of Agins’ mis-
conduct, I find that its creation and maintenance by the Re-
spondent raises questions about who authored it and what its
ostensible purpose might have been.
Next, there is the statement prepared by Respondent and
signed on December 5 by James. James testified that this was
simply a typewritten version of her initial written statement
with stylistic changes. However, it is apparent that the state-
ment contains narrative which did not emanate from James. Of
particular note is the fact that Yablon is identified as being an
ASM from a store on the Upper West Side, a fact which James
conceded she did not know at the time. Further, there is other
narrative detail, such as a comparative description of Agins’
height and weight as compared to James’ which I do not be-
lieve would have been included in any original account of
events. Moreover, the December 5 statement fails to corrobo-
rate James’ testimony regarding Agins’ conduct as he at-
tempted to follow Yablon to the door, testimony which Re-
spondent cites extensively in its brief and relies heavily upon.52

51 As is discussed below, employees are evaluated every 6 months.
52 In its brief, Respondent not only reproduces James’ testimony but
further asserts that, “Agins also came cursing and yelling toward James,
who was standing in the middle of the two men. James had to keep
backing away from Agins.” (Transcript citations omitted.)
I find that, had this happened, it would have been a memorable
event which would likely have been included in any report
James provided to her superiors. In this regard, I find it doubt-
ful that the diminutive James would have positioned herself in
front of the substantially larger and heavier Agins to intercede,
as she testified.
Thus, I do not credit James’ testimony that the description of
events, as described in her December 5 signed statement, corre-
sponds in all material respects to her initial written statement.
In such an instance there would be no obvious reason for her to
be summoned to Wilk’s office, some 2 weeks later, to sign the
statement offered into evidence by Respondent. I note that
while counsel for Respondent stated on the record that James’
original incident report did not exist, counsel for the General
Counsel had James identify a one-page document which she
acknowledged was, at least in part, the incident report she
wrote that night. Respondent has presented no testimony nor
any explanation for why James was asked to sign a prepared
statement, or why her original report could not be produced.
Accordingly, I draw an adverse inference from Respondent’s
failure to produce James’ initial incident report or to explain its
absence through probative evidence.
(c) Surrounding facts and circumstances
There are several other reasons why I fail to credit Respon-
dent’s account of Agins’ purported misconduct and find it to be
overstated.
As the General Counsel’s witnesses testified, and Respon-
dent has admitted, after Yablon left, the group continued to sit
undisturbed for a period of 10 minutes. I find it inherently im-
probable that, had Agins continued to be disruptive, insubordi-
nate and profane, as has been described, his fellow IWW sup-
porters would have remained in the facility for this period. It is
entirely more probable that under such circumstances, they
would have sought to leave the premises immediately.
Then, there is the undisputed fact that James did not contact
anyone from Starbucks about the incident that evening; nor did
she explain why she failed to do so. I further note that the re-
cord establishes that Starbucks was not reluctant to summon the
police to any union-related event deemed to be disruptive of
operations. Here, the police were not called. As James was the
only manager on duty at the time, I find it highly unlikely that
she would have failed to contact either other managerial per-
sonnel or the police had Agins been as disruptive or she felt as
threatened as has been asserted.
Further, I note that Yablon was not called to testify, nor was
his unavailability explained in any way. Inasmuch as he was, at
the pertinent time, a member of Respondent’s managerial per-
sonnel, and there in no evidence that he is no longer affiliated
with Starbucks, I can only assume that his testimony would
have been favorably disposed toward the Respondent. As it was
Yablon who was directly involved in the altercation with
Agins, I draw an adverse inference from Respondent’s failure
to call him to testify or explain his absence. Thus, I conclude
that if he had testified, his testimony would have been adverse
to Respondent. International Automated Machines, 285 NLRB
1122, 1123 (1987). I further note that there is no evidence that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
Yablon was admonished or disciplined in any way for his par-
ticipation in this exchange.
For all the foregoing reasons, I find that Respondent has
failed to come forward with sufficient probative or reliable
evidence to support its contentions regarding the extent and
nature of Agins’ purported misconduct on November 21.
(2) Application of the Atlantic Steel criteria
Respondent contends that Agins was discharged because of
his conduct at the 9th Street store on November 21. As noted
above, I have found that Agins was engaged in protected con-
duct on that occasion. Thus, the relevant inquiry is whether
Agins engaged in misconduct which would have caused him to
lose the protections of the Act. See Felix Industries, supra.
Longstanding Board precedent establishes that “employees
are permitted some leeway for impulsive behavior when engag-
ing in concerted activity,” subject to the employer’s right to
maintain order and respect.” Piper Realty Co., 313 NLRB
1289, 1290 (1994). To assess whether an employee’s “admit-
tedly impulsive and unwise conduct is so severe that it out-
weighs his or her Section 7 rights,”53 the Board applies the
balancing test set forth in Atlantic Steel, supra. Four factors are
analyzed to determine whether conduct has lost the protection
of the Act: (1) the place of the discussion; (2) the subject matter
of the discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an em-
ployer’s unfair labor practices.
With regard to the first factor, the place of the discussion, I
note that the argument at issue took place in Respondent’s retail
facility, and therefore carried with it a likelihood that it could
have resulted in a disruption in business as both employees and
customers may have overheard the exchange. I note that Agins
was not on duty at the time, and his comments were not ad-
dressed to his superiors. I further note that this is a facility into
which the public is openly and regularly invited, and it is more
than likely that this was not the first, nor the last, heated discus-
sion or importune use of profanity to take place there. I never-
theless conclude that the fact that Agins became involved in an
altercation with a customer in Respondent’s retail facility
weighs against protection.
As to the second factor, the subject matter of the discussion,
as discussed above, Agins was involved in protected conduct at
the time (i.e., the union button action). This is organizational
activity which implicates core Section 7 rights. The discussion
between Agins and Yablon was then initiated by Yablon’s
comments regarding the button and his objections to the Union
generally. As noted above, the evidence shows that some part
of the exchange between Agins and Yablon involved a personal
matter. Nevertheless, the fact remains that this aspect of the
disagreement took place in the overall context of a demonstra-
tion in support of employees’ Section 7 rights, and was initiated
by Yablon’s apparent reaction to this concerted, protected con-
duct. I also note that the earlier insult also stemmed from pro-
tected conduct. On whole, I do not find the fact that some per-
sonal comments were made is sufficient to counterbalance the

53 Tampa Tribune, 351 NLRB 1324, 1326 (2007).
otherwise protected subject matter of the dispute. Thus, I find I
find that this factor weighs in favor of protection.
Regarding the nature of the outburst, this factor is largely
controlled by my credibility resolutions, as discussed above.
The credited testimony establishes that Agins engaged in dis-
ruptive conduct which included some use of profanity. How-
ever, I do not find that his outburst was as extreme or prolonged
as has been characterized by Respondent. In those cases where
the Board has found that an employee’s conduct has lost the
protections of the Act, the evidence generally establishes a
repeated, sustained course of action, including vulgar language,
typically accompanied by threats, physically intimidating con-
duct or otherwise inappropriate references, usually directed
toward a superior. See Tampa Tribune, supra at 1326 fn. 17,
and cases cited therein.
Aluminum Co. of America, 338 NLRB 20 (2003), relied upon
by Respondent, is distinguishable. There, the Board, reversing
the administrative law judge, found that the employee’s mis-
conduct was sufficient to cause him to lose the protections of
the Act. In that instance, however, the employee’s actions in-
volved certain factors not present in the instant case. In particu-
lar, the Board found that the employee used sustained profanity
which far exceeded that which was common and tolerated in
the workplace. Moreover, the Board found that the employee’s
repeated, sustained and ad hominem attacks could not be ex-
cused as an emotional outburst provoked by the respondent’s
reaction to his protected conduct. Here, by contrast, the evi-
dence shows that Agins was goaded, at least initially,54 and that
his outburst was relatively brief. Moreover, there is record evi-
dence that other employees of Respondent have used profanity,
racial or ethnic slurs or other inappropriate language in a vari-
ety of circumstances and that, at times, they have been dealt
with less harshly.55 Thus, while I do not condone Agins’ con-

54 In this regard, I note that James admitted that she initially told
Yablon to “leave it alone” and did not speak to Agins at this time.
55 Respondent offered into evidence records demonstrating numer-
ous instances where employees were disciplined or terminated for
engaging in profane outbursts or for otherwise engaging in threatening
conduct. A review of these files, however, establishes that Respon-
dent’s approach to such instances varies, as would be understandable
given the number of facilities, employees, and managers involved.
Nevertheless, there is some evidence that, in certain situations, egre-
gious conduct has been tolerated with lesser discipline. By way of
example, in October 2005, two employees engaged in an altercation
which included (1) a racially-charged slur and (2) a physical fight
which included arm-grabbing; ice-throwing, a headlock, and one em-
ployee trying to hit another with a bottle of vanilla. As a result of this,
one employee (Patrick N.) was issued a final corrective action. He was
later terminated for a subsequent infraction. In addition, the exhibits
introduced into evidence by Respondent show that frequently employ-
ees were terminated only after repeated incidents of inappropriate be-
havior, and after receiving final warnings. For example, in October
2004, employee Valeria S. was discharged for serious misconduct
including threatening and fighting with a coworker. Prior to this, the
employee had received several coaching conversations as well as two
prior written warnings, one for a customer service complaint and one
for a prior altercation with a coworker. In February 2006, employee
LaBlessing S. received a “Summary of Current Performance/Corrective
Action” which outlined numerous deficiencies in performance includ-
ing: (1) time and attendance infractions; (2) cash-handling infractions;
STARBUCKS COFFEE CO. 33
duct on the occasion in question, I find that this factor, on
whole, militates toward retaining the protections of the Act.
As to the fourth factor, whether the outburst was provoked
by unfair labor practices, I note that the union button action
took place just days after a complaint had issued containing
allegations of unlawful conduct pertaining to Respondent’s
refusal to allow employees to wear union insignia. The prior
day, Montalbano had been directed to remove his union button
or face suspension for the remainder of his shift. The com-
plaint allegations were eventually settled with a nonadmission
clause, however, and no specific finding of unfair labor prac-
tices can be found. Moreover, Yablon’s comments to Agins,
while provocative in the colloquial sense, have not been alleged
to be unlawful.
In support of its contention that this factor should be
weighed in favor of protection, the General Counsel relies on
several cases where supervisory conduct, not alleged to be
unlawful, was nonetheless held to be a provocation which
weighed in favor of protection under Atlantic Steel. For exam-
ple, in Network Dynamics Cabling, 351 NLRB 1423, 1429
(2007), the Board held that an employee’s outburst, which oc-
curred in the context of protected conduct, was provoked by
certain comments made by a supervisor. Although these com-
ments were not alleged as an unfair labor practice, the Board
found that the element of provocation existed because the su-
pervisor’s comments clearly sought to interfere with the em-
ployee’s protected right to assist in organizational activity. See
also Overnite Transportation Co., 343 NLRB 1431, 1437–1438
(2004), where the Board found that provocation by a supervisor
in the form of an outright refusal to discuss the circumstances
of employee discharges with a shop steward, although not al-
leged as an unfair labor practice, was held to weigh in favor of
protection. However, in Tampa Tribune, supra, the Board, cit-
ing Verizon Wireless, 349 NLRB 640 (2007), found that the
fact that the intemperate statements in question were provoked
by lawful communications in the form of letters issued by a
supervisor was a factor which weighed slightly against retain-
ing the Act’s protection.56
Here, I conclude that the absence of a finding of legally pro-
scribed conduct does not weigh against continued protection.

(3) writing profanity on the communication board in the back room; (4)
displaying an indifferent and rude attitude toward a customer which
included inappropriate language; (5) responding to coaching about an
inappropriate conversation while working by mumbling disrespectful
comments about the district manager and losing composure; and (6)
making inappropriate comments about Hurricane Katrina and other
denigrating ethic comments to coworkers. This shift supervisor was
subsequently terminated for being “unable to lead by example follow-
ing our six guiding principles. Partner did not embrace diversity by
using racial slurs. Could not keep composure or coach others in the
core competencies.” In addition, in its brief, counsel for the General
Counsel also points to several instances where personnel records show
that Respondent has meted out lesser discipline for similar offenses
even when repeated by employees who have other discipline in their
files.
56 Similarly, in Verizon Wireless, supra, the Board found that the
provocation factor weighed against continued protection where the
employee’s outburst was provoked by an employer’s lawful e-mail
criticizing the union.
The employees’ protected conduct was initiated to protest em-
ployer rules that were, at the time, subject to outstanding alle-
gations of unlawful unfair labor practices. Thus, at the time,
employees had a reasonable basis to believe that unfair labor
practices had occurred regarding the prohibition on the wearing
of union buttons. And, it is undisputed that Yablon’s initial
comments addressed themselves to that issue. Further, unlike
the situations presented in Tampa Tribune and Verizon Wire-
less, Yablon was addressing Agins directly, and not through
written communications. Moreover, even if I were to conclude
that the absence of a proven unfair labor practice limits a find-
ing of “provocation,” I find that the overall context of the dis-
cussion creates mitigating factors which would lead me to con-
clude that this factor weighs only slightly against continued
protection under the Act.
In sum, I find that while the first factor weighs against con-
tinued protection under the Act, this is counterbalanced by both
the subject matter of the discussion, which implicates core Sec-
tion 7 rights as well as nature of the outburst which, while cer-
tainly inappropriate, was neither sustained, threatening, nor
directed at any immediate superior. I have similarly found that
the fourth factor supports continued protection under the Act.
However, even if I were to find that the fourth factor weighed
slightly against protection, this would not alter my ultimate
conclusion. Thus, I find that Agins’ conduct during his con-
certed protest of Respondent’s prohibition against wearing of
union insignia, while unwise and intemperate, did not cross the
line so as to lose the protection of the Act. Accordingly, I find
that by discharging him, admittedly for his conduct at this time,
Respondent has violated Section 8(a)(1) and (3) of the Act, as
alleged.
(3) The Wright Line analysis
In its brief, counsel for the General Counsel additionally ar-
gues that Respondent seized on the November 21 incident as
pretext for Agins’ discharge and thereby contends that the real
reason for his discharge was his prior and continuing union
activity. The General Counsel therefore urges, in the alterna-
tive, that an analysis be conducted under Wright Line. Respon-
dent, too, analyzes its decision to terminate Agins under Wright
Line. As both the General Counsel and the Respondent have
placed Respondent’s motive for Agins’ termination at issue, an
analysis under Wright Line, supra, is appropriate here. See
Waste Management of Arizona, 345 NLRB 1139, 1140 (2005).
Applying the Wright Line standards to the circumstances sur-
rounding Agins’ discharge, I find that the General Counsel has
met its initial burden of establishing the elements of a prima
facie case. It is clear that Agins was an open and active union
member, and that his support for the IWW was known to Star-
bucks management. I note that Respondent’s avowed conten-
tion that Respondent was unaware of Agins’ union support until
some time after the May 14 incident is contradicted by the re-
cord evidence. Agins was pinpointed as a likely union sup-
porter almost 1 month prior to that date, as described above.
Respondent’s motive is further called into question by vary-
ing, and at times contradictory testimony regarding the respon-
sibility for the decision to discharge Agins. The record fails to
support Respondent’s assertions that the decision to discharge
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
Agins was made by his store manager, as would be typical in
situations where the issue of an employee’s union support was
not at issue. To the contrary, Smith testified the decision was
made when Wilk “felt we had enough.” The minor role Smith
played in this decision is highlighted by the fact that he had
virtually no independent recollection of any of the pertinent
events. Further, the PAN separation notice reflecting Agins’
discharge specifically refers to his support for the IWW as one
reason why Agins would not be eligible for rehire. In this re-
gard, I give no weight to Respondent’s attempt to adduce hear-
say testimony through Smith regarding what Warner may have
meant by such comments.57
Moreover, the inference that antiunion animus was motivat-
ing factor in the Respondent’s decision to discharge Agins can
be fairly drawn due to the Respondent’s commission of other
unfair labor practices, as have been found herein. Thus, the
General Counsel has established a prima facie case under
Wright Line that Agins’ union activities were a substantial or
motivating factor in his discharge.
Respondent therefore has the burden of showing that it
would have discharged Agins notwithstanding his protected
conduct. In this regard, Respondent argues in the first instance
that, “Agins was counseled by his managers regarding his com-
posure and emotional outbursts from early on in his employ-
ment.” As has been discussed above, there is no probative evi-
dence to establish that to be the case. To the contrary, as of
mid-May Wilk noted that there was no indication of composure
issues in Agins’ personnel file. Respondent also claims that
“the undisputed record evidence demonstrates that Starbucks
had no knowledge of Agins’ support for the Union as of mid-
May when his managers disciplined him . . . .” As discussed
above, I have concluded that the evidence shows to the con-
trary. Moreover, I fail to credit the testimony of Respondent’s
witnesses that Agins received a final written warning for the
May 14 incident. The warning is neither signed by Agins nor
witnessed by any other manager. It is dated 1 day prior to
Wilk’s instruction to Smith that it be issued. Moreover, as of
the following December, Wilk had not received a copy of it;
notwithstanding Smith’s testimony that Wilk saw all corrective
actions that were issued from the 9th Street store. In any event,
regardless of the date the warning was actually written, I credit
Agins’ testimony that he never received it.
Further, as discussed above, I have found that Respondent
has exaggerated and mischaracterized the scope and nature of
Agins’ misconduct on November 21. The proffer of a false
reason for the discharge supports an inference that the real rea-
son is one that an employer seeks to conceal. Key Food, 336
NLRB 111, 114 (2001), and cases cited therein. In addition,
there is at least some suggestion based upon the personnel files
introduced into evidence by both parties, that on various occa-

57 According to Wilk, the notation at issue was brought to her atten-
tion by company legal counsel, and she called Smith who, in turn,
stated that he had not seen it and would question Warner about it. Wilk
then testified that, up to that point, the issue of Agins’ affiliation with
the IWW had never been brought up in the discussions surrounding his
termination. I find such testimony to be unworthy of belief.
sions Respondent has dealt with conduct more egregious than
Agins’ with lesser discipline.
Moreover, inasmuch as Respondent has admitted that Agins’
conduct on November 21 was a substantial factor in his dis-
charge, and I have found that such conduct retained the protec-
tions of the Act, it is a foregone conclusion that Respondent
cannot carry its burden of proving that the discharge was for
neutral nondiscriminatory reasons. Further, even if it were to be
found that Agins had not been engaged in protected conduct
during the evening of November 21, as I have found the Re-
spondent’s defense to be, in many material respects, false, and
there is some evidence that Agins was treated in a disparate
fashion from other employees, I find an unlawful motive to be
the real reason for the discharge. Accordingly, under the Wright
Line analysis urged by both the General Counsel and the Re-
spondent, I find that Respondent has violated Section 8(a)(1)
and (3) of the Act.
5. The alleged unlawful discharge of Isis Saenz
a. Background
Saenz was hired as a barista at the East 57th Street store dur-
ing the summer of 2005. It is undisputed that she was an open
union supporter, one of the initiators of the public announce-
ment of union support at the facility at which she worked. As of
June 2006, Saenz reported to SM Patrice Britton and Veronica
Park was the district manager assigned to the store.
b. The October 26 book signing event
On the evening of October 26, 2006, Respondent hosted a
book signing event at its store located at 29th Street and Park
Avenue. Starbucks CEO Howard Schultz had been scheduled to
attend,58 and the union supporters decided to stage a demonstra-
tion. Approximately 15 members and supporters of the Union
congregated outside the store that evening. Among others, this
group included Saenz, Gross, Fostrum, Bender, and Montal-
bano. Saenz was not on duty at the time.
The union members and supporters were chanting, singing
and were carrying signs, some mounted on sticks.59 They also
were distributing leaflets to passersby. One such leaflet bore a
picture of Schultz and the heading, “Most Wanted.” Both
Fostrum and Saenz took video recordings of the demonstration
that evening. Fostrum’s video was entered into evidence, and
he was questioned extensively about it by counsel for both the
General Counsel and Respondent.
At one point, Fostrum entered the store and attempted to
videotape inside, but McDermet, who was present at the time,
prevented him from doing so and instructed him to leave. At
another point, several protestors entered the store and unfurled
a large banner, but they were evicted in short order. Another
protestor attempted to distribute union literature inside the
store. Saenz testified that, at one point, she briefly entered the
store, but then left. At one point the camera zoomed in on
McDermet, who was inside the store at the time. Saenz is over-

58 It appears that Schultz never did attend the book signing.
59 Among the chants were: “What’s disgusting? Union Busting” and
“What’s outrageous? Starbucks wages.” Some of the signs read, “We
won’t accept poverty paychecks” and “Stop Union Busting.”
STARBUCKS COFFEE CO. 35
heard making a comment to the effect of, “Hello Jim, we have a
surprise for you.” She also can be heard yelling, “Hey Barbie
Doll Baristas” at employees who were exiting the store.
McDermet testified that, while in the store, he heard the chant-
ing, but could not make out any specific statements made by
Saenz during that time.
IWW member Demian Schroeder, who is not a Starbucks
employee, entered the store at one point and initiated a conver-
sation with McDermet. Schroeder told McDermet that he oper-
ated a cooperative bookstore, and had an interest in the sort of
event that Starbucks was hosting. Subsequently, Schroeder left
the store and joined the demonstrators outside.
McDermet left the store at about 8:30 p.m. As he was prepar-
ing to leave, Gross instructed the demonstrators not to touch
him. Saenz echoed that admonition, and added, “spit on him.”
McDermet was still inside the store when she uttered those
words.60
When McDermet exited the store the demonstrators began
shouting, taunting him and chanting, “shame, shame, shame.”
After McDermet left the store, he turned onto 29th Street. As he
walked away from the store a group of approximately six indi-
viduals, including Saenz, Fostrum, and Schroeder, began fol-
lowing him.61 Saenz testified that Fostrum was the closest to
McDermet, about 4 feet away.62 During this time, Saenz
shouted out to McDermet, “Jimmy, Jimmy, why won’t you
speak to us. Why are you ignoring your workers.” She admitted
making this, or similar statements, on more than one occasion.
McDermet acknowledged that all he heard Saenz state to him
was. “Jimmy, Jimmy, why won’t you talk to us,” “Jimmy,
spend some time with us, Jimmy.” As McDermet was being
followed, one individual said, “We know where you live.” Ac-
cording to the testimony of the General Counsel’s witnesses,
this comment was made by a stranger who had joined the dem-
onstration and was tagging along. McDermet testified that it
was Gross (who had, by then, been discharged) who made this
comment. Fostrum’s videotape shows that other participants in
the demonstration uttered various comments including, “Fuck
Starbucks,” “Stand up for yourself,” and “We are following you
now, boy.” McDermet did not offer testimony that he heard
these other remarks, and they were not listed in the police re-
port he subsequently filed. In any event, the evidence is clear
that Saenz did not make any of these comments.
McDermet continued down 29th Street, while Fostrum con-
tinued to videotape and asked various questions including one
about why he (Fostrum) had been discharged. As McDermet
was about halfway down the block, two individuals joined him.
One of these was identified as Starbucks Marketing Manager

60 Respondent claims that Saenz also said, “piss on him.” It is not
clear from the video whether she actually made that comment. Even I
were to assume that she did utter those words, however, it is apparent
that McDermet was not in a position to overhear them at the time.
61 Initially, McDermet testified that a group of approximately 20–30
individuals followed him for a total of about 13 blocks to Pennsylvania
Station. All the other evidence adduced in the record, including
Fostrum’s videotape, shows this account to be significantly overstated,
and Respondent apparently does not rely upon it in its brief.
62 Similarly, Fostrum testified that he followed McDermet from a
distance of about 5 feet.
Dan Lewis, who did not testify herein. When McDermet
reached Madison Avenue he turned left and proceeded toward
28th Street. At that time, Saenz was still part of the group fol-
lowing him, but she and Fostrum turned back shortly thereafter.
At that point, Saenz shouted out, “See you next time, Jim.”
McDermet testified that due to the fact that he was being fol-
lowed, and the “we know where you live” comment, he took a
circuitous route to his destination, which was in the vicinity of
Pennsylvania Station.
By the time McDermet reached 28th Street, Lewis and his
other companion had gone on their separate ways and he was
being followed by approximately four individuals, including
Schroeder. They continued walking along with him and at some
point Schroeder attempted to engage McDermet in conversa-
tion. McDermet, who recognized Schroeder from their discus-
sion in the store, said that it was deceitful of him to have passed
himself off as someone who operated a bookstore when he was
with the Union. Schroeder told McDermet that he was, in fact,
a part owner of a cooperative bookstore. Then Schroeder at-
tempted to explain the benefits of the Union to McDermet and
why it would be good for workers if they were organized.
McDermet stated that he did not believe that the IWW was
qualified to organize Starbucks.
McDermet subsequently apprised Wilk of what had tran-
spired during the course of the evening and also contacted the
Starbucks partner and asset protection (P&AP) department, and
was advised to file a police report, which he did on the follow-
ing day, October 27. In the report, McDermet specifically
named Gross, Fostrum, and Saenz. Of the three, Saenz was the
only current employee. McDermet then spoke again with Wilk
about the events which had transpired and specifically about
Saenz’ role in those occurrences. According to Wilk, P&AP
Manager Steven Bova conducted an investigation which in-
cluded speaking with Lewis and DM Tracey Bryant, who had
been present in the store on that evening. None of these indi-
viduals testified herein and no report of the Company’s investi-
gation was placed into evidence.
DM Veronica Park testified that it was brought to her atten-
tion that Saenz had participated in a group outside of the book
signing. The allegations were that she addressed McDermet as
“Jimmy, Jimmy” and was part of a group that had taunted him
by saying that they knew where he lived and had acted in an
intimidating manner. Wilk recommended that Saenz be inter-
viewed to ascertain whether her account corresponded with
McDermet’s and; if so, Wilk recommended that Saenz be ter-
minated for her role in the incident. According to both Wilk
and Park, the ultimate decision of whether to discharge Saenz
would rest with Park, and Park testified that she had not made a
decision about whether Saenz would be discharged prior to her
interview. Park admitted on cross-examination that she was
aware that Saenz had been participating in a union protest on
the evening in question.
Park and Partner Resources Manager Joyce Varino met with
Saenz on November 1.63 Park asked Saenz if she had attended

63 According to Respondent, this was the first opportunity they had
to meet with Saenz, as she had not reported for work for several sched-
uled shifts in the interim. Saenz, when asked about this, testified that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
the rally in question, to which Saenz answered in the affirma-
tive. She was asked if she referred to McDermet as “Jimmy,
Jimmy” in a disrespectful or demeaning way. Saenz admitted
calling McDermet “Jimmy, Jimmy.” Saenz also told Park that
she didn’t mean to be disrespectful, she was just trying to get
his attention at the rally. Park asked if Saenz believed that
McDermet may have felt threatened or intimidated by the situa-
tion and Saenz conceded that there were a lot of people chant-
ing and he may have felt that way. Park also asked Saenz if she
remembered hearing someone say, “We know where you live”
to McDermet and she admitted that she may have heard some-
one say that, but did not know who. Then, Park discharged
Saenz. At the time she was discharged, Saenz stated that she
had been fired because she picketed. Park responded that she
supported Saenz’ right to picket and that was not the reason she
was separated. As Park stated, she explained to Saenz that she
was being discharged for treating one of her Starbucks partners
disrespectfully. As Respondent asserts in its brief: “Park sepa-
rated Saenz’ employment because her disrespect toward
McDermet violated Starbucks Guiding Principle of treating
each other with respect and dignity.”64
I note that, according to her testimony, at no point did Park
specifically question Saenz about whether she had been follow-
ing McDermet as he left the facility or how far she may have
gone while following him. On cross-examination, Park admit-
ted that she conducted no interviews of anyone else involved in
this situation.
c. Analysis and conclusions
Counsel for the General Counsel argues that Saenz was en-
gaged in protected, concerted activity and union activity during
picket line conduct. The General Counsel argues that the cir-
cumstances of Saenz’ discharge should be analyzed under the
standard set forth in Clear Pine Mouldings, Inc., 268 NLRB
1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985), cert. denied
474 U.S. 1105 (1986).65 Alternatively, counsel for the General

she had been ill and had tried to call in but could not get through. In
any event, Respondent does not contend that Saenz’ failure to report to
work or call in was a factor in her discharge.
64 Contrary to the General Counsel I do not find that Park’s interview
of Saenz constituted an unlawful interrogation. Interrogation is not, by
itself a per se violation of Sec. 8(a)(1) of the Act. The test for determin-
ing the legality of employee interrogation regarding union sympathies
is whether, under all the circumstances, the interrogation reasonably
tends to restrain, coerce, or interfere with rights guaranteed employees
by the Act. Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984),
enfd. 760 F.2d 1006 (9th Cir. 1989). Here, not only was Saenz a public
and outspoken supporter of the Union, she was an open participant in a
public demonstration of union support. I further note that Park confined
her inquiries to the type of language employed by Saenz on this occa-
sion and how that might have been perceived by McDermet, and did
not question Saenz about her union activities or the union activities of
other employees generally. Under these circumstances, I do not find
that Park’s inquiry rose to the level of an unlawful interrogation.
65 In Clear Pine Mouldings, supra, the Board considered whether
picket line misconduct was of a sufficient nature to justify a refusal to
reinstate striking employees. The Board announced an “objective” test
as had previously been formulated by the Third Circuit in NLRB v.
McQuaide, Inc., 562 F.2d 519, 527 (Cir. 1977), i.e., “whether the mis-
conduct is such that, under the circumstances existing, it may reasona-
Counsel argues that the matter should be evaluated under NLRB
v. Burnup & Sims, Inc., 379 U.S. 21 (1964). Counsel notes that
the Act is violated where “it is shown that the discharged em-
ployee was at the time engaged in a protected activity, that the
employer knew it was such, that the basis for the discharge was
an alleged act of misconduct in the course of that activity, and
the employee was not, in fact, guilty of that misconduct.”
Respondent first contends that, under the four factor analysis
set forth in Atlantic Steel, supra, Saenz’ conduct was not pro-
tected under the Act. Respondent further contends, under
Wright Line, supra, it has met its burden of establishing that it
would have discharged Saenz based upon her threatening and
harassing behavior regardless of her union membership and
sympathies.
It is undisputed that Saenz was discharged because of her
conduct on October 26. This took place during a rally con-
ducted by union supporters and members to protest, among
other things, Starbucks employment practices and perceived
hostility toward the Union. As such, it was concerted, protected
conduct and union activity. I therefore agree with the General
Counsel insofar as it asserts that a Wright Line analysis is not
applicable in this case. It is properly analyzed under the four-
factor criteria of Atlantic Steel, supra. That is, the question is
whether Saenz’ conduct was of a nature to remove it from the
protection of the Act.
As to the first factor, the location of the alleged misconduct,
Respondent argues that the fact that Saenz engaged in disre-
spectful and threatening conduct toward a regional vice presi-
dent in front of other partners weighs heavily against a finding
that her conduct was protected. It is the case, however, that
Saenz was off duty at the time, demonstrating on a public side-
walk. Moreover, there is no evidence that any on-duty employ-
ees had any knowledge of or were in a position to overhear any
comments she may have made to McDermet. In fact, the only
other individuals who knew that she referred to McDermet in a
purportedly disrespectful manner were her fellow demonstra-
tors, none of whom were working at the time either. Accord-
ingly, I find that the first factor, the place of the alleged mis-
conduct, weighs in favor of protection.
The second factor, the subject matter of the discussion, simi-
larly weighs in favor of protection. Saenz was part of a public
protest of, among other things, Starbucks’ wages and other
working conditions. Her comments to McDermet are an out-
growth of this protest and are related to the Union’s contention
that management would not meet with employees to address
these concerns.
As to the third factor, the nature of the outburst, Respondent
relies upon Fostrum’s video which shows that Saenz yelled
“spit on him” and (as Respondent contends) “piss on him.”
Assuming that Saenz uttered these remarks, it is apparent from
the video that these comments were made prior to McDermet
exiting the store. Moreover, there is no evidence any Starbucks
manager, or on-duty employee, had any awareness that such
comments were made at the time or even prior to the videotape
being shown at the hearing. Respondent additionally points to

bly tend to coerce or intimidate employees in the exercise of the rights
protected under the Act.”
STARBUCKS COFFEE CO. 37
the fact that Saenz was part of group that followed McDermet
down the street calling out comments which Respondent char-
acterizes as threatening and profane. Respondent, however,
cannot attribute any of these comments to Saenz, and with the
exception of the “we know where you live” comment neither
was she asked about them in her termination interview. Further,
it is apparent that, to the extent the originators of such com-
ments can be discerned from Fostrum’s videotape, they were
made by individuals with male voices. Moreover, I note that
Park never asked Saenz whether she followed McDermet down
the street prior to her discharge, and, according to Park’s testi-
mony it did not factor into Respondent’s decision to discharge
her. Rather, the only behavior referred to by Park in supporting
her determination to discharge Saenz related to her speaking
disrespectfully to McDermet and referring to him as “Jimmy.”
Nevertheless, the fact remains that Saenz was part of a group
which followed McDermet as he left the facility and, individu-
ally, she did follow him for more than 1 city block. Although it
is entirely understandable that McDermet may well have found
the situation to be intimidating, on balance I do not find, how-
ever, that Saenz’ conduct was so egregious as to remove her
from the protections of the Act. As noted above, there is no
evidence that Saenz used any threatening or profane language
while she walked down the street behind McDermet, or that she
was in physical proximity to him. Nor did she continue to fol-
low him. In this regard, I note that McDermet’s companions
left him after a short while. Had the demonstrators’ behavior
been as threatening as Respondent now asserts, it would have
been unlikely that they would have done so.
While it appears that Saenz did address McDermet in a dis-
respectful manner, Respondent points to no situation where
such impertinence has been found sufficient to remove an em-
ployee from the protection of the Act. In fact, the Board has
recognized that, “impropriety alone does not strip concerted
conduct of statutory protection.” Aroostook County Regional
Ophalmology Center, 317 NLRB 218, 220 (1995), enf. denied
in part 81 F.3d 209 (D.C. Cir. 1996) (footnotes and citations
omitted). Accordingly, I find that the third Atlantic Steel factor,
frequently referred to by the Board as the “nature of the out-
burst” militates in favor of continued protection for Saenz.
As regards the fourth factor, whether the outburst was pro-
voked by unfair labor practices, I conclude that this factor
weighs against protection. It is however, clearly overshadowed
by the place, subject and nature of Saenz’ comments to
McDermet which, admittedly, were the basis for her discharge.
I conclude, therefore, by discharging Saenz because she spoke
in a disrespectful manner to McDermet during the course of
protected, concerted conduct, Respondent has violated Section
8(a)(1) and (3) of the Act.66

66 Similarly, under the Wright Line analysis urged by Respondent, I
would find that a violation of the Act has occurred. The General Coun-
sel has established the requisite elements of union activity and knowl-
edge. In addition, I infer animus from the surrounding circumstances,
including the commission of contemporaneous unfair labor practices, as
described above. I additionally infer animus from McDermet’s initial
testimony, which was false in that it clearly overstated the number of
demonstrators who followed him on the street. Under Wright Line, I
would also find that Respondent seized upon Saenz’ disrespectful
6. The alleged unlawful evaluations, discipline,
interrogation and discharge of Daniel Gross
There are various allegations of the complaint relating to
Gross. Specifically, the General Counsel has alleged that Re-
spondent unlawfully issued negative performance evaluations
on January 29, April 14 and 29, and August 5, 2006; and that
on August 5, 2006, Respondent issued a disciplinary corrective
action to, and then discharged Gross. The General Counsel has
also alleged that Respondent unlawfully prohibited Gross from
speaking about the Union to coworkers while off duty and that
Respondent further interrogated Gross and threatened him with
discharge for engaging in concerted protected activities on
behalf of the Union. Much of the conduct alleged to be unlaw-
ful with respect to Gross, in particular the various performance
evaluations, and Gross’ ultimate discharge, turn on employer
motivation and, as such, are appropriately analyzed under
Wright Line. Other allegations of the complaint as they relate to
Gross are subject to an analysis under Atlantic Steel, as dis-
cussed below.
a. Respondent’s process for evaluating employees
Generally, employees are evaluated every 6 months and are
rated on a scale of 1 (“NI” or Needs Improvement); 2 (“ME” or
Meets Expectations); or 3(“CE” or Consistently Exceeds Ex-
pectations) in a number of designated areas which are, in turn,
aggregated into one of two sections. Section A is entitled “Key
Responsibilities”67 and section B is lists attributes called “Star-
bucks Core Competencies.” Each numerical grade may be ac-
companied by a narrative description. The scores for each sec-
tion are averaged for an overall score which is, again a 1, 2, or
3, with the same corresponding designations. Each section of
the evaluation counts for 50 percent of an employee’s score.
Employees who receive an overall score of 2 or 3 are eligible to
receive a pay raise and those who receive an overall score of 1
have their performance monitored after a period of 90 days to
see if there has been improvement. To reach the overall score,
the average grade for the two sections is either rounded up or
down to the nearest whole number.68
There are 10 areas designated as “Key Responsibilities” as
follows:

comments and tone of voice as a pretext to discharge her because in
this instance, the personnel records offered into evidence clearly dem-
onstrate numerous examples of disparate treatment. That is: Respon-
dent routinely experiences situations where its managers are addressed
in an impertinent or disrespectful manner or where employees have
otherwise behaved contrary to Starbucks values and principles. The
discipline meted out in such circumstances typically involves coaching,
or written warnings for more egregious behavior. Thus, I would find
that Respondent’s reasons for discharging Saenz are pretextual. As
Respondent cannot establish that it had a neutral nondiscriminatory
reason for its decision to discharge Saenz, I would find that it had failed
to meet its burden of proof in this regard.
67 According to the evaluation form, key responsibilities are “taken
from the job description and/or from other performance objectives for
the position that are not detailed in the job description.”
68 For example, if the average is 1.4, that employee will receive an
overall score of 1, or needs improvement. If the average is 1.6, then the
score will be rounded up to a 2 and the employee will be deemed to
have met expectations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
Delivers legendary customer service to all customers
by acting with a “customer comes first” attitude and con-
necting with the customer. Discovers and responds to meet
customer needs.
Provides quality beverages, whole bean and food
products consistently for all customers by adhering to all
recipe and presentation standards. Follow health, safety
and sanitation guidelines for all products.
Acts with integrity, honesty and knowledge that pro-
mote the culture, values and mission of Starbucks. Main-
tains a calm exterior presence during periods of high vol-
ume or unusual events to maintain a clean and comfortable
store environment.
Anticipates customer and store needs by constantly
evaluating environment and customers for cues. Commu-
nicates information to the manager on shift so that the
team can respond as necessary to create the “Third Place”
environment during each shift.
Follows Starbucks operational policies and procedures,
including those for cash handling and safety and security,
to ensure the safety of all partners during each shift.
Maintains a clean and organized workspace so partners
can locate resources and product as needed.
Recognizes and reinforces individual and team accom-
plishments by using existing organizational methods.
Contributes to positive team environment by recogniz-
ing alarms or changes in partner morale and communicat-
ing them to the management team.
Assists with new partner training by positively rein-
forcing successful performance and giving respectful and
encouraging coaching as needed.
Maintains regular and consistent attendance and punc-
tuality.
In addition, there are eight enumerated Starbucks Core
Competencies, as follows:
1. Customer Focus—Delivers legendary service that
meets and exceeds all customers’ expectations.
2. Ethics and Integrity—Adheres to Starbucks values,
beliefs and principles during both good and bad times.
3. Composure—Remains calm, maintains perspective
and responds in a professional manner when faced with
tough situations.
4. Personal Learning—Takes personal responsibility
for the continuous learning of new knowledge, skills and
experiences.
5. Dealing with Ambiguity—Able to successfully
function during times of uncertainty and changing priori-
ties.
6. Decision Making—Makes timely and quality deci-
sions based on a mixture of analysis, wisdom, experience
and judgment.
7. Interpersonal Savvy—-Builds effective relationships
with all people; up, down and sideways, inside and outside
of Starbucks.
8. Results Oriented—Gets results and achieves goals.
b. Gross’ work history and early
performance evaluations
Gross was hired to work at Respondent’s 36th Street store in
May 2003. In November 2003, Gross received a performance
review with an average rating of 2.3 in key responsibilities and
2.5 in Starbucks core competencies for an overall rating of 2.4.
The review lists “legendary service” as a significant accom-
plishment and identifies certain “performance improvement
opportunities,” these being, “setting personal goals for contin-
ued growth” and “increase bean knowledge.” At that time, the
manager administering the review was Beth Jamison, an indi-
vidual who does not appear to have a role in any other deci-
sions made with respect to Gross’ employment as are relevant
to this case.
On May 28, 2004, shortly after the representation petition
was filed, Gross received another performance review, this one
administered by SM James Cannon. Gross received a 2.7 aver-
age rating in terms of key responsibilities a 2.75 rating in Star-
bucks core competencies. For the review period, Gross’ overall
rating was evaluated as a 3 (or consistently exceeds expecta-
tions). Among Gross’ significant accomplishments were listed:
“(1) his ability to establish relationships with both customers
and partners alike; (2) his ability to keep a calm composure
during times of high volume; and (3) his continued competency
in his role and the willingness to guide others.” Performance
improvement opportunities were identified as follows: “pursu-
ing further knowledge of Starbucks culture and product (i.e.,
community involvement, coffee knowledge (coffee master?))”
and “communication with new management.” In its brief, Re-
spondent points to other narrative comments made by Cannon
made in conjunction with Gross’ scores in the key responsibili-
ties section of the review. For example, Cannon stated that
“Dan’s awareness of his environment and his communicating
any concerns in it to the new management is an area of oppor-
tunity for him.” Cannon further stated that Gross, “needs to
work in communicating changes in partner attitude (concerns,
compliments, complaints) to the new management team. In
another section, Cannon wrote, “While Dan may be aware of
the organizational methods of recognition, it is unclear whether
he has utilized them.” On this review, Cannon did not give
Gross a 1 or “NI” in any area.
Gross received his next review from Cannon on May 27,
2005. In the area of key responsibilities, Gross received an
overall score of 2.1. He received two “1” ratings in this section
of the evaluation. In the area of “Recognizes and reinforces
individual and team accomplishments by using existing organ-
izational methods,” Cannon wrote, “Dan to my knowledge has
not given any MUG awards or recommended anyone for a
Green Apron card.” As regards the category, “Contributes to
positive team environment by recognizing alarms or changes in
partner morale and communicating them to the management
team,” Cannon wrote that “Dan has always had the opportunity
to further his communication skills with management.” Can-
non’s comments in other areas of the review are not fully legi-
ble, but it appears that he described Gross at this time as a
“good partner” whose significant accomplishments included his
“continued ability to connect with customers” and “his knowl-
edge and tenure which allows him to assist others when they
STARBUCKS COFFEE CO. 39
are unsure.” Cannon identified Gross’ performance improve-
ment opportunities to include, “further[ing] his coffee knowl-
edge and increase[ing] his communication with management
about issues that arise during his shifts.”
c. Gross’ availability and limited work schedule
All baristas are part-time employees who are scheduled for
work based upon their availability and the needs of the store to
which they are assigned. When he was initially hired, Gross
placed no restrictions upon his availability. After 6 months,
Gross limited his availability to 5 days per week. In August
2004, Gross began attending law school and further limited his
availability to 2 days per week, Saturday and Sunday, between
the hours of 12 p.m. and 6 p.m. Between May 2005 and Janu-
ary 2006, Gross acknowledged that he “didn’t work as many
shifts as he had previously.” I found Gross’ testimony about
this issue to be, on whole, needlessly evasive because Respon-
dent was readily able to establish that during the 8-month pe-
riod between May 16, 2005, and January 28, 2006, Gross
worked a total of 25 hours. During the summer of 2005, Gross
was employed elsewhere and he “gave away” virtually all of
his shifts to a coworker who needed the extra income. Gross
did not work any shifts whatsoever between November 13,
2005, and January 28, 2006.
Gross acknowledged that sometime during this period, in the
fall or winter, SM Cannon told Gross that he had not been see-
ing him in the store, and complained that he had been giving
away his shifts. Gross responded that Cannon’s comments
seemed discriminatory to him, but he would not give away any
shifts in the future. After this time, Gross did not give away any
shift for which he was scheduled. It is undisputed, however,
that after Cannon spoke with Gross he did take time off. His
testimony that these leaves of absence would have to be ap-
proved by store management was not rebutted. According to
Respondent, it treated Gross’ requests for time off just as it
would have treated those made by any other employee.
d. Other employees with limited work schedules
As will be discussed below, the General Counsel contends,
in part, that Respondent seized upon Gross’ limited availability
as a pretext to justify his discharge. There was evidence ad-
duced regarding other employee work schedules in an attempt
to show that Gross was treated disparately from other employ-
ees. Respondent, conversely, relied upon evidence to show that
Gross worked less during the relevant period than any other
employee.
As noted above, there are general provisions in the partner
guide about minimum work schedules, but there is no specific
minimum number of hours an employee must work.69 The re-
cord reflects that there are any number of employees who jug-
gle work with other responsibilities requiring flexible sched-
ules. The General Counsel points to Monica Thompson, who
worked at the same store as did Gross, and was a full-time stu-

69 This policy states that “Partners may be expected to make them-
selves available for wok for a minimum number of days or hours per
week, depending upon the store’s need. The inability or failure to in-
crease one’s availability to work may result in separation of employ-
ment.”
dent. During the academic year 2005–2006, Thompson worked
a total of 56 shifts, or an average of approximately 1.5 shifts
per week. Respondent notes, however, that during the period
from May to November 2005 (which Respondent asserts is the
relevant period for the purposes of Gross’ January 2006 evalua-
tion), Thompson worked 98 shifts compared to Gross’ 6.
The General Counsel additionally points to employee Jenny
Robateau’s testimony that she was permitted to go off the
schedule at 36th and Madison during 3 months during the
summer of 2006 without any formal paperwork or request for
leave, and worked at another Starbucks near her home during
this period. In the summer of 2007, she was permitted to take
leave to travel for a period of approximately 1 month. The Gen-
eral Counsel further relies upon the testimony of Sarah Bender
who, beginning in April 2007, worked two shifts per week for a
total of 8–11 hours. As Respondent notes, however, this ar-
rangement lasted for a period of just a few months.
In short, in agreement with Respondent I find that there is
insufficient record evidence to establish that any other em-
ployee consistently worked as few hours as Gross did during
the period from May 2005 up to the date of his discharge.70
e. IWW activity from November 2005 to January 2006
Gross testified that, beginning in about November 2005,
there was a major escalation in IWW activity, much of which
involved him personally. This included the November 18 an-
nouncement and associated leafleting at the Union Square East
store. As has been described above, Gross was prominently
involved in that series of events. The General Counsel also
relies upon testimony that on November 23, Gross signed and
personally delivered a letter registering the Union’s protest
regarding the fact that the managers at the 9th Street store were
not allowing their employees to wear union buttons. Gross was
also one of the organizers of the Black Friday event, spoke
publicly, and moderated the press conference as Ayala and
others spoke to reporters.
In addition, Gross was quoted in a New York Times article
regarding that rally, and Respondent’s CEO, Jim McDonald,
sent a message to employees in response to that article, which
was posted in the stores. During this period, Gross generated
various news releases which also appeared on the Union’s web
site and which featured his name and contact information. In
January 2006, Gross posted a press release comparing the
health insurance Starbucks offered to its employees unfavora-
bly with that offered by Wal-Mart. In January 2006, he was
quoted in various publications, including the New York Sun,
about IWW initiatives in the New York geographic area. It
appears from the record that Respondent made efforts to
counter what it deemed to be negative publicity caused by these

70 Malchi testified that in May 2007 he began working one shift per
week for a period of 4 to 8-1/2 hours. This continued for approximately
1 month. At that time, his store manager informed him that he would
have to pick up at least one more shift, as it did not make sense for him
to work only 1 day per week. Malchi began working one additional
shift per week, but found that his schedule could not accommodate it.
He told his manager that he could not manage the schedule, and he was
told that he could not work only one shift per week. Malchi then de-
cided to resign his position with Starbucks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
press releases, through their own press releases and communi-
cations to employees.
f. Gross’ January 2006 performance review
Under Starbucks’ policy, Gross should have received his
next review on or about November 27, 2005, 6 months after his
prior review. As noted above, however, Gross did not work any
shifts between November 13 and January 28. Thus, Cannon did
not administer this review until January 29, when Gross finally
returned to work. Cannon advised Gross that he would be ad-
ministering the review and directed Gross to prepare coffee
using the French Press method for the meeting. Coffee brewed
in this manner is not on the menu at Starbucks’ retail stores;
however, coffee is sometimes prepared in this fashion to pro-
mote various products sold by Starbucks. Thus, baristas may,
from time to time, prepare coffee according to this method to
market such products.
Gross was unsure of the proportions and brewing time and
asked for information from two coworkers, neither of whom
were certain either. Cannon commented that Gross had been
giving away his shifts and now he could not even prepare a
French Press. Gross prepared the coffee pursuant to Cannon’s
instructions and brought it into the back room. Cannon and DM
Mark Anders were present. The coffee was tasted, and Cannon
asked Gross to recite the four essentials of good coffee, which
he did.71 Gross asked why Anders was present for the admini-
stration of the performance review. According to Gross, Can-
non said that there was a new policy that a district manager
would be present when an employee received either a “needs
expectations” or “exceeds expectations” on a performance re-
view. Gross asked to see the policy in writing. Anders then
stated that there was no policy, it was just a “best practice.”
Cannon then provided Gross with the performance review72
and read through several of the narratives that had been written
with respect to various categories. In this review, Gross had
received ratings of “1” in 9 of the 18 categories in the review,
and had received no “3” ratings. His overall score, 1.4, was
rounded down to a 1.
According to Gross, other than reading from the evaluation
itself, Cannon failed to explain why Gross’ performance was
deemed to have declined so precipitously.
In the evaluation, reference was made to Gross’ lack of
availability for work and its purported effect on his job per-
formance: “Dan does not maintain adequate hours of availabil-
ity. Therefore he is rarely scheduled to work. When he is
scheduled, Dan frequently asks other partners to work his shifts
for him.” It was also stated that because Gross “worked only
infrequently” he “has had little exposure to the seasonal lineup”
and “has not demonstrated that he has kept up his knowledge of
current promotional items.” In this particular key responsibility,
however, Cannon also wrote that “Dan is familiar with our
beverages enough to know the basic standards of recipe and
presentation.” Gross received a “2” in this category.
Gross acknowledges that Cannon made a reference to his
having given away shifts. Gross testified that he reminded Can-

71 These are: water, grinds, proportion, and freshness.
72 The review had an effective date of November 27, 2005.
non that after he had been spoken to about this matter, he had
not given away any more shifts. Anders asked Gross to fill out
a new form designating his availability for work. Gross asked
Anders if he was stating that Gross would have to open up his
availability in order not to get an unfavorable performance
review, and Anders said no. Gross filled out a new form: how-
ever, his availability remained unchanged from what it had
been before.
Other narrative comments relating to those key responsibili-
ties in which Gross’ performance was deemed to need im-
provement include the following: “Dan does not display behav-
iors that would indicate a positive attitude about Starbucks to
partners and customers;” “Dan will communicate regarding
tasks at hand allowing management to know that he is aware of
the need to complete them, but he is not proactive;” “Dan has
not utilized any organizational methods for recognition of other
partners;” “Dan has not been involved with the training of any
new partners or has he made mention of any desire to help them
along.”
As regards Starbucks core competencies, Gross received
scores of “1” or “NI” in the following areas: “Ethics and Integ-
rity—Adheres to Starbucks values, beliefs and principles dur-
ing both good and bad times;” “Personal Learning—Takes
personal responsibility for the continuous learning of new
knowledge, skills and experiences;” and “Interpersonal
Savvy—Builds effective relationships with all people; up,
down and sideways, inside and outside of Starbucks.” Under
performance improvement opportunities Cannon wrote,
“[o]pening his availability to give him exposure to and the op-
portunity to work with new partners and products.”
Gross received ratings of “2” or “ME” in the areas of: de-
liver[ing] legendary customer service . . .; provid[ing] quality
beverages . . .; follow[ing] Starbucks operational policies and
procedures . . .; maintain[ing] a clean and organized workspace
. . .; customer focus . . .; composure . . .; dealing with ambiguity
. . .; decision making . . and [being] results oriented. . . .
Gross signed the review under protest, writing that he
strongly disputed his ratings and suggesting that they be modi-
fied across the board.
Cannon filled out a PAN, electronically recording Gross’
“needs improvement” rating, stating: “Dan did not work fre-
quently enough to warrant a high score. We are hoping that
with an increase of shifts that [Gross] works over the next re-
view period that we can help him bring up his scores by expos-
ing him to promos and partners.”
The only evidence adduced by the General Counsel regard-
ing any change or lack of change in Gross’ work performance
during the period encompassed by the evaluation was as fol-
lows:
Q. Just referring to, I’m going to ask you about two
meetings, January 29th and April 14th, did any of the
managers present say anything to you about why they
didn’t mention anything about your calm exterior de-
meanor.
A. No, they didn’t mention anything about that.
STARBUCKS COFFEE CO. 41
Q. Other than what it says here, did any of the manag-
ers . . . explain to you what they meant by you didn’t dis-
play a positive attitude.
A. No they did not.
Q. With respect to your demeanor and how you han-
dled yourself in the store during times of high volume, did
you change in any way, shape or form between May ‘05
and January ‘06.
A. No.
Q. Once again, the same question about the same two
meetings but about a different category, January 29, 2006,
April 14, 2006, did any of the managers on either or those
occasions explain why you got a number one in category
four on page 1, “Anticipates company and store needs?”
A. No they did not.
Q. Finally, going to page 2, the last category in Section
A, “Maintains regular and consistent attendance, punctual-
ity,” other than what it says on the document and other
that what you’ve already testified to about the two meet-
ings, did you receive any further explanation of why you
got a one in that category? Other than what you’ve already
said, on January 29th or April 14.
A. No.
Q. During the time frame of let’s say May 2005 until
January 2006, were you consistently late?
A. No, I was not.
Q. Do you have a number of no call, no shows?
A. No, I did not.
Q. Did your attendance and punctuality in that regard
change at all from the time you began at Starbucks [until]
January 2006?
A. It did not.73
Thus, Gross offered testimony rebutting the downgrading of
his performance in areas such as composure, his ability to an-
ticipate store needs and his punctuality. It appears undisputed,
however, that Gross did not meet company standards in other
areas such as utilizing existing organizational methods to rec-
ognize coworkers, training new hires and communicating part-
ner morale issues to store management. Respondent presented
no evidence, other than what is contained the evaluation itself
and PAN notice, to establish why Gross’ job performance had
suffered such a decline. Neither Cannon nor Anders, neither of
whom presently work for the Company, testified herein. Re-
spondent presented no evidence that it made any effort to con-
tact these potential witnesses or that they were unavailable.
Respondent argues that the above-performance evaluation
was an accurate assessment of Gross’ job performance and was
not discriminatorily motivated. Respondent points to the fact
that SM Cannon had rated Gross on at least two occasions prior
to January 2006. On the first evaluation, administered by Can-
non 10 days after Gross had publicly announced his support for
the Union, in May 2004, Cannon rated Gross as exceeding
expectations. The review Cannon prepared in May 2005, more
than 1 year after Gross announced his support for the Union

73 Of course, the General Counsel’s questions regarding punctuality,
time and attendance fail to acknowledge that Gross worked only mini-
mal hours during this period.
and after Gross had engaged in numerous activities on behalf of
the Union, contained several ratings where Gross had been
found to meet or exceed expectations. As Respondent urges,
these evaluations defeat any contention that Cannon acted with
animus in preparing Gross’ less favorable January 2006 review.
Respondent further argues that, inasmuch as Gross had been
openly engaging in numerous union activities for well over one
year before receiving the January 2006 review, the timing actu-
ally undermines an inference of animus.
Respondent further contends that several of the areas identi-
fied in the January 2006 review as needing improvement had
been raised in prior evaluations. In this regard, earlier reviews
had urged Gross to improve communication with management
and utilize organizational recognition methods to recognize the
contributions of his coworkers. As Respondent notes, between
May 2005 and August 2006, Gross worked fewer hours per
week than any other partner in the district, and did not work at
all between November 13, 2005, and January 28, 2006. Accord-
ing to Respondent, this fact alone justifies Gross’ overall rat-
ings.
Respondent also argues that there is no evidence that Gross
was treated in a disparate fashion from other employees and
cites to several performance evaluations where employees re-
ceived ratings of “1” in those categories where Gross was
deemed to need improvement.
As noted above, the General Counsel apparently does not
contend that the performance review was inaccurate in several
respects. Nevertheless, the General Counsel argues that it is
discriminatory. In support of this argument, the General Coun-
sel relies heavily on comments regarding Gross’ failure to “dis-
play behaviors that would indicate a positive attitude about
Starbucks to partners and customers.” The General Counsel
notes that that was the first occasion where Gross had received
any written remarks about his attitude. The General Counsel
additionally points to the absence of favorable comments re-
garding Gross’ ability to remain calm and steadfast during peri-
ods of high volume, which had earned him ratings of 2 or 3 in
the past.74 The General Counsel further points to the timing of
the review, noting that such remarks came directly after Gross
had engaged in frequent, open and notorious activities on be-
half of the IWW.
As discussed above, to establish that this performance review
is discriminatory, the General Counsel has the initial burden of
establishing a prima facie case that Gross’ union activities were
a substantial or motivating factor in the actions taken by Re-
spondent. Here, the requisite elements of union activity and
employer knowledge clearly exist. In addition, I conclude that
the General Counsel has adduced sufficient evidence of animus
to meet its initial burden. In so finding I concur with the Gen-
eral Counsel that Respondent’s comments about Gross’ atti-
tude, absent any specific explanation by Respondent, constitute
some evidence of an unlawful motive.
The Board has repeatedly held that a reference to an em-
ployee’s “attitude” can be found, in the appropriate context, to
constitute evidence of unlawful motivation. See, e.g., Clima-

74 I note, however, that under Starbucks core competencies, Gross
received a “2” in this area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
trol, Inc., 329 NLRB 946, 946 fn. 4 (1999), and cases cited
therein; Children’s Studio School, 343 NLRB 801, 805 (2004)
(claim that employee was discharged because she did not have
the “right spirit” and for being unwilling to work together as a
team deemed similar to accusing the employee of a bad atti-
tude, which is veiled reference to protected activities).
Respondent argues that Cannon’s reference to Gross’ attitude
does not constitute evidence of animus or pretext. In this re-
gard, Respondent points to Gross’ admission that having a
“good attitude” is a skill relevant and important to the job du-
ties of a barista. As Respondent notes, the record contains evi-
dence that employees with no apparent connection to the Union
have been counseled or received ratings of “1” as a result of a
poor job attitude. Respondent concedes that a vague assertion
that an employee has a “bad attitude” may at times indicate a
veiled reference to union activities, but argues that the Board
has recognized that an employer may reasonably expect its
employees to perform their job functions with a good attitude.
Respondent further argues that the Board has found that rating
employees based on subjective criteria such as “attitude” is not,
by itself, evidence of union animus.
Respondent’s argument here might be more compelling if it
had adduced evidence, either through testimony or even
through specific examples as set forth in Gross’ performance
evaluation, of ways in which his poor attitude had some impact
upon the way he performed his job. Here, there is no such
proof.75 To the contrary, Gross had been found to meet expecta-
tions in areas regarding customer service (including acting with
a “customer comes first attitude”) beverage preparation, the
maintenance of his work space and his adherence to safety,
security and cash handling procedures, among others. Gross
was also rated as meeting expectations in the area of “Customer
Focus—delivering legendary service that meets and exceeds all
customers’ expectations.” I conclude therefore, in the absence
of any explanation to the contrary, that the nonspecific, unex-
plained reference to Gross’ failure to evince a positive attitude
is, in fact, a veiled reference to his union activities, and evi-
dence of animus. I draw a similar conclusion from Respon-
dent’s apparent and unexplained conclusion that Gross failed to
“adhere[ ] to Starbucks values, beliefs and principles during
good and bad times.”
The burden now shifts to the Respondent to show that the
January 2006 performance review was not discriminatory. The
evidence adduced by the Respondent to rebut this prima facie
case consists of the fact that Gross worked minimal hours dur-
ing this period, in conjunction with whatever is contained the
evaluation itself and PAN notice. With regard to Gross’ work
schedule, I note that in the PAN notice Cannon specifically tied
Gross’ lack of hours to his poor work performance. Again,
however, Gross was rated as meeting expectations in virtually
all of the categories relating to customer service and drink

75 While I do not draw an adverse inference from Respondent’s fail-
ure to produce and question either Cannon or Anders, Respondent still
bears the burden, after the General Counsel has adduced its prima facie
case, of coming forward to show, by a preponderance of the evidence,
that it would have administered this negative performance evaluation to
Gross, notwithstanding his protected conduct.
preparation. I further note that there is unrebutted evidence that
Respondent gave its approval to Gross’ requests for time off
during at least some portion of evaluation period. Based upon
the foregoing, I conclude that Respondent has failed to meet its
burden of coming forward with specific, probative evidence to
establish that it would have evaluated Gross in a substantially
similar fashion notwithstanding his union activities. See
Saginaw Control & Engineering, Inc., 339 NLRB 541, 543
(2003) (poor evaluation was held to be discriminatory where
respondent could not show that it would have administered the
same evaluation even in the absence of union activity).
In reaching this conclusion, however, I am mindful that the
General Counsel has failed to present evidence to show that the
January 29 performance evaluation was inaccurate in certain
respects where Gross’ performance was found not to meet
company standards. In this regard I find that that the prima
facie case established here was a relatively weak one which,
quite possibly, could have been overcome by some direct evi-
dence from the Respondent. In any event, even if I were to
conclude that the General Counsel had failed to adduce suffi-
cient evidence to meet its burden to show that this particular
performance review was discriminatory, I would find, based
upon subsequent events as discussed below, that the General
Counsel has adduced substantial evidence of unlawful motiva-
tion with regard to Gross, relating to later performance evalua-
tions and his eventual discharge.
g. Change of management at the 36th Street store
In March 2006, Cannon was transferred and Jose Lopez be-
came the store manager of the 36th Street store. At about the
same time, Paul Grzegorczyk became district manager. Lopez
testified that, at the time he took over the store, he discussed the
partners and their strengths and weaknesses with Cannon. Lo-
pez acknowledged that Cannon told him that Gross was “in-
volved” with the Union. Lopez testified that, generally, there
was very little discussion of Gross or his union activities among
managers or in e-mails about the Union. Nevertheless, Lopez
was aware that Gross was a spokesperson and organizer for the
IWW. As Lopez testified, all you had to do was pick up a
newspaper and read his name.
According to Lopez, Cannon went through Gross’ January
2006 performance review and also provided him with examples
of conduct which Cannon perceived as disruptive of store op-
erations. According to Lopez, Cannon told him that Gross had
put the wrong beans in the coffee bin, so that customers order-
ing decaffeinated coffee would receive regular and vice versa.
Cannon also purportedly told Lopez that Gross purposefully
made the wrong drinks during the store’s peak periods in an
effort to disrupt operations. I note that none of these examples
of purportedly subversive behavior are documented in Gross’
performance reviews or in any other employment record intro-
duced into evidence by Respondent as part of its defense to the
allegations of the complaint. I find that such misconduct would
have been, at the very least noted and it is more likely than not
that Gross would have been disciplined for such insubordina-
tion. Absent such lack of corroboration, I do not credit Lopez’
hearsay testimony regarding these prior alleged acts of miscon-
duct.
STARBUCKS COFFEE CO. 43
h. The April 14 performance evaluation
Cannon asked Gross to come into the store on April 14, for
an initial meeting with Lopez and Grzegorczyk. As Lopez testi-
fied, he also wanted to go over Gross’ last performance review,
and discuss performance “opportunities” so that he and Gross
“could be on the same page.”
When Gross arrived at the meeting, he was introduced to the
new managers. He had brought along a coworker, Ivan Hican-
pie, and requested to have Hincapie present as a witness. His
request was declined. According to Lopez, Gross then became
“irate,” “slammed his fist on the table really hard and said, ‘this
is insane’” and left the store. Gross concedes that he left the
facility, but testified that he told the managers he was going to
take a moment to consider whether to continue with the meet-
ing without a witness. Gross then went outside to confer with
Hincapie and returned shortly thereafter.
Upon his return, Cannon and Lopez went through a perform-
ance evaluation which had been prepared with an effective date
of November 27, 2005. Cannon read through various catego-
ries. Under both key responsibilities and Starbucks core compe-
tencies, Gross received an average score of 1.5; thus, that was
his average rating on the evaluation as well. According to the
evaluation anything up to 1.5 is deemed to be a “Needs Im-
provement” overall score. In those particular areas which were
deemed to need improvement under key responsibilities, the
comments on the review included the following:
Dan has continued not to display any behaviors that
would indicate a positive attitude about Starbucks to part-
ners and customers.
Dan continues to communicate needs (i.e., 10 minute
slide, trash removal) but does not take the initiative to
complete without direction. He has not taken a proactive
approach to contributing to the “Third Place” environment
during his shifts.
Dan has yet to recognize any partners utilizing organ-
izational methods of recognition (i.e., Green Apron Cards,
MUG, etc.).
Dan continues not to communicate information about
morale or other partner issues to his managers or ASM’s at
any time during the review period.
Dan has not been involved with the training of any
new partners; he has not made mention of any desire to do
so. He has not made attempts to coach or connect with
newer partners other than minimal introductions.
Gross’ score was upgraded to a “2” in the area of “Maintains
regular and consistent attendance and punctuality.” With re-
spect to this issue, it was written that: “Dan, as agreed to during
his last review, has worked all of his shifts as scheduled and has
been on time and in dress code on all occasions.”
As regards the Starbucks core competencies, Gross received
a “1” in the following areas:
Ethics and Integrity—adheres to Starbucks values, be-
lief’s (sic) and principles during both good and bad times.
Personal Learning—Takes personal responsibility for
the continuous learning of new knowledge, skills and ex-
periences.
Decision Making—Makes timely and quality decisions
based on a mixture of analysis, wisdom, experience and
judgment.
Interpersonal Savvy—Builds effective relationships
with all people; up down and sideways, inside and outside
of Starbucks.
As Cannon read through this evaluation, Lopez, who had not
yet worked with Gross, expressed his intention set Gross “up
for success.” Gross asked some questions: for example, he
asked whether, if a barista were to tell him that they felt over-
taxed at the bar, or underpaid, would that be the kind of thing
Gross would have to communicate in order to receive a favor-
able rating; and he was told, “yes.” Gross also asked whether he
would have to promote a belief that unions are inappropriate at
Starbucks to get a favorable rating relating to adhering to Star-
bucks values. There was no response to this inquiry.
Gross stated that the document was inaccurate and clearly
discriminatory and that the Company would have 2 weeks to
remedy the review or the Union would take legal action. He
then left the facility.
There are two versions of this document in evidence. One,
which is the version Gross was given on April 14, is neither
signed nor dated. The other, which was among those documents
produced to the General Counsel pursuant to subpoena, is
signed in the space designated for a manager’s signature and
dated April 3, 2006. This version of the April 14 performance
evaluation includes a final page containing additional material.
Gross’ testimony that he was never shown this page is unrebut-
ted. The additional material is as follows:
Additional Comments Section B—Core Competencies
Dan has demonstrated ineffective decision making. He
has chose to not act in a manner conducive to personal de-
velopment by not proactively taking part in activities that
would increase his performance level. He has not acted on
feedback provided regarding recognition of fellow part-
ners, and acts in a ‘disengaged’ manner when displaying
behaviors that embrace the culture, values and mission of
Starbucks.
Additional Comments Significant Accomplishments
and Performance Improvement Opportunities
Dan has maintained consistent attendance (as sched-
uled). It is still recommended that Dan widen his avail-
ability for continued development in his role. Dan’s lack
of recognition of feedback is a barrier to his ability to be
open to suggestions and finding solutions for further de-
velopment. [Emphasis in original.]
The General Counsel argues that, with one exception, the
April 14 performance review was simply a continuation of the
prior discriminatory review issued to Gross on January 29. The
one difference here is that Gross was noted as having worked
all shifts as scheduled and thereby received a “2” in the area of
attendance and punctuality. Nevertheless, his aggregate score
was insufficient to achieve a “meets expectations” rating.
Respondent argues that the April 14 performance review was
conducted pursuant to its policy to reevaluate employees 90
days after receiving a “needs improvement” performance re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
view. Respondent argues that this was not an adverse employ-
ment action because it failed to raise any performance issues
that had not been previously brought to Gross’ attention during
the January 2006 evaluation and that neither had any impact on
his terms and conditions of employment.76 Respondent asserts
that Cannon’s purpose in holding the meeting was to introduce
Lopez and to provide an opportunity to discuss those areas of
Gross’ performance which had previously been identified as
needing improvement. In the alternative, Respondent asserts
that even if the performance evaluation did constitute an ad-
verse personnel action, the General Counsel has failed to estab-
lish a nexus between Union animus and the discipline imposed.
I agree with Respondent that the record does demonstrate in-
stances where employees have received 90-day interim per-
formance evaluations after receiving a “needs improvement”
review, and do not draw any conclusions from this fact, stand-
ing alone. Nevertheless, for the reasons set forth in connection
with the January 29 review, in particular those similarly non-
specific comments about Gross’ attitude and lack of adherence
to Starbucks values, culture and ethics, I find that there is some
evidence that this review was discriminatorily motivated.
In addition, and of particular note, is the undisputed fact that
Gross was presented with version of this document which omit-
ted commentary on his performance in particular areas where
he was found to need improvement. If the purpose of the re-
view was, in fact, to provide Gross with an opportunity for
improvement, there would seemingly be no valid reason for
failing to provide him with all appropriate feedback. This is
particularly the case with regard to the issue of “availability,”
which as will be seen below, was a recurrent theme. Although
Cannon had previously identified “increasing his availability”
as a performance improvement opportunity, Gross’ testimony
that he had been told that he need not increase his availability
to receive a successful rating in the area of attendance and
punctuality is corroborated by the fact that, in this evaluation,
Gross was deemed as meeting expectations by virtue of the fact
that he worked all scheduled shifts. Now, Respondent was
apparently “recommend[ing]” that Gross increase his availabil-
ity; however, it failed to so advise him. In this regard, I note
that Lopez offered no testimony that Gross had been informed
of this recommendation during his meeting with the managers.
Thus, Respondent has failed to explain how neglecting to
show Gross certain salient comments and recommendations in
connection with his performance evaluation can, in any sense
of the phrase, be deemed to be part of a legitimate effort to “set
[Gross] up for success,” as Lopez asserted. Accordingly, based
upon the foregoing, I find that the April 14 performance evalua-
tion was pretextual. Inasmuch as Respondent has failed to
show, by a preponderance of the credible evidence, that it
would have administered the same evaluation to Gross in the
absence of his protected conduct. I conclude that it is discrimi-
natory. Saginaw Control & Engineering, Inc., supra.

76 As Gross was not due for the semiannual review of his perform-
ance until July 2006, he would not have been eligible for a wage in-
crease until that time.
i. Lopez’ log book
Following the April 14 meeting, Lopez and Gross worked
shifts together on April 15, 22, and 23, all prior to Gross receiv-
ing an April 29 “Update on Performance,” discussed below.
As Lopez testified, he kept a running log of events occurring
at the store. In the log, relevant portions of which are in evi-
dence, there are various notations dealing with Lopez’ interac-
tions with employees, their interactions with each other and
coaching conversations and other discipline administered to
employees. Lopez testified that this log is not complete as it
does not reflect the full measure of his observations about or
coaching conversations with employees.
Between April 14 and 29 there are several notations about
Gross. On April 15, which is the first shift Lopez and Gross
worked together, Lopez wrote:
Interaction with Dan Gross
Dan was friendly with me today. It felt very superfi-
cial. He arrived on time (12pm—4pm) and left exactly at 4
pm.
I had a coaching conversation with Dan regarding his
beard. He claimed that ‘neat was in the eye of the be-
holder.’ When I asked him if he ever reviewed the dress
code policy he stated ‘I don’t recall.’ I reminded him the
expectation was to keep his beard neat moving forward.
I also reviewed the updated policy change with Dan.77
It took him 20 min. to review it. He asked a question re-
garding our new soliciting policy. He then wrote on the ac-
tual memo ‘anywhere in the store’ and then asked me to
sign it. I refused to sign it and I stated that the memo was
very clear. He then said, ‘no problem.’
On Saturday, April 22, the next shift worked with Gross, Lo-
pez’ log reads as follows:
Dan worked 12-4, arrived clean shaven and seems (acts) very
positive. He assigned a till and displayed good cust. service
skills. He sampled pastrys. *Side Note: Aislynn mentioned
that her and Dan were going to the apple store together to
purchase a laptop. Dan was supposed to assist her in picking
up the right lap top.*
On April 23, the only notation regarding Gross relates to Lo-
pez’s observations of his interaction with a coworker named
Charles and his having overheard Charles tell Gross that he will
call him later.78
j. The April 29 update on performance
The next time Lopez and Gross worked together was April
29. At the beginning of Gross’ shift, Lopez summoned him into
the office and Gross was given an “Update on Performance”
which is dated April 27 (the “Update”). Lopez testified that he
drafted this memorandum based upon his observations of

77 It appears from the timing and the context that this is a reference
to the new policies adopted pursuant to the March 2006 settlement
agreement.
78 Charles Polanco, an IWW supporter, was employed at the 36th
Street store during this period of time.
STARBUCKS COFFEE CO. 45
Gross’ work performance. The document states, in relevant
part:
This document will serve as a summary of recent con-
versations regarding your progress towards the areas of
opportunities identified in your last performance review. . .
[Your] inadequate attendance record largely contributed to
your inability to demonstrate several of the key responsi-
bilities and core competencies of your barista position. For
instance, you did not demonstrate initiative in the follow-
ing areas:
Engaging in legendary, positive interactions with part-
ners and customers at all times;
Participating in active sampling and demonstrating an
understanding of all promotions;
Communicating to the management team on enhancing
the customer experience;
Contributing to a positive work environment by exhib-
iting behaviors such as distributing green apron cards and
MUG awards to your co-workers.
These are just some examples of the behaviors that you
will need to exhibit to be considered as meeting the expec-
tations of your role as barista.
Dan, it is my intention to set you up for success and to
provide you with the tools and resources you need to excel
in your role. To date, I have not seen a marked improve-
ment in the areas listed above. However, I am committed
to working with you so that you can fulfill all of the areas
of opportunity identified in your performance review. To
that end, we will set your next performance review for
July 29, 2006, or as soon after that date as possible. This
will give you the full benefit of time to demonstrate im-
provement. . . scheduling your performance review for
July 2006 will give you a full six months to improve your
availability and work on the areas identified above. At that
time we will evaluate your performance and determine
your performance status. Please note that it is extremely
important for you to demonstrate acceptable performance
in all the key responsibilities and core competencies of
your position and that your failure to improve in the areas
indicated above will result in the termination of your em-
ployment with Starbucks.
Upon reviewing the document Gross demanded to know who
wrote it. Lopez stated that he had authored it, and Gross asked
whether he would be willing to testify under oath to such effect.
Gross was asked to sign the document, and refused.
Lopez recorded this meeting in his log as follows:
Daniel Gross arrived at the store on time. I sat him down at
the MWS to review and explain his new performance date. I
began to explain to him why we are moving forward with this
new date (7/29/06). My key points were that this date will
benefit him due to the amount of hours worked that six month
period (slightly over 25 hours). He read the entire document
and refused to sign it. He stated, ‘It’s my right not to sign it.’
He then asked me ‘who composed the document.’ I told him
that the document was from me, he then nodded his head and
asked ‘Will you say that in a court of law?’ I then ended the
conversation and repeatedly asked him if he had any ques-
tions regarding the document/review date or areas of opportu-
nity that were listed on the document. He said no, and at that
point the conversation was over (I gave him his copy). I inten-
tionally planted us in front of the camera’s view (12:10 pm).
The document was clearly visible through this conversation.
He also reviewed the document during his 10 min. break
(2:04 pm). Dan’s demeanor changed after this conversation.
He was not as friendly with me. After Dan punched out he
said goodbye to everyone on the floor except for myself. I did
tell him to have a good weekend (he didn’t respond).
Thus, as of the time Lopez administered the update to Gross
he had worked with him on only three occasions. As docu-
mented in Lopez’ log for that period of time, Gross displayed
some initial resistance to Lopez’ directive that he trim his
beard, but had complied as of the next time he returned to
work. He engaged in some legal gamesmanship with Lopez
over the new no-solicitation policy, but eventually let the mat-
ter drop. He acted in a friendly manner toward Lopez, seemed
“positive,” displayed good customer service skills, sampled
pastries, and offered to assist a coworker in a nonwork matter.
This description of Gross’ conduct fails to comport in signifi-
cant part with the update where he was specifically found to be
lacking in positive interactions with customers and partners,
and had allegedly failed to participate in the sampling and pro-
motion of products, among other things. In fact, there is not one
instance where Lopez noted inadequate performance in any the
areas outlined in the update. Further, Lopez failed to identify
from his experiences supervising Gross any other particular
instance which would substantiate his assessment of such per-
ceived work deficiencies at this particular point in time or to
explain the disparity between the observations recorded in his
log, and the assessment of Gross’ work performance as re-
flected in the update.
As such, I conclude that the update is pretextual and, accord-
ingly, constitutes persuasive evidence of Respondent’s unlaw-
ful motive with regard to its future actions toward Gross. See
Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir.
1995) ([W]hen the employer presents a legitimate basis for its
actions which the fact finder concludes is pretextual . . . the
factfinder may not only properly infer that there is some other
motive, but “that the motive is one that the employer desires to
conceal—an unlawful motive . . . .”) (quoting Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966)).
I additionally find, that by issuing this document, which is
tantamount to a negative performance evaluation, Respondent
has violated Section 8(a)(1) and (3) of the Act.
k. Additional log entries regarding Gross’ conduct
at and outside of work
On May 6 Lopez noted the following:
Charles hung around after his shift and waited for Dan to ar-
rive. They sat down in the care area and exchanged a few
words before Dan punched in for his shift. Daniel was not as
friendly with me as he was in the past. I intentionally men-
tioned the cash reward to him and other partners in a group
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
setting.79 Daniel had no comment but the rest of the partners
were excited to hear that. Dan was assigned to do a coffee
tasting, as he did (Columbia w. esp. brown) as he was able to
describe. Dan continued his shift and left exactly on time.
Lopez also made a notation about one of Gross’ coworkers,
named Willy, who had a substantial cash shortage, and further
wrote, “Willy went out of his way to tell me that Dan called
him at home to discuss his cash shortage problem. Dan offered
his advice, which was, ‘You don’t have to sign any documents.’
Willy wanted no part of that discussion and told him, ‘thanks,
but no thanks.’”
l. Lopez speaks with Gross about contacting
partners outside work
Lopez testified that on about May 12, 2006, two partners ap-
proached him separately and complained that Gross had been
contacting them outside of work, making them uncomfortable.
One of the employees, Jenny Robateau, testified herein.
Robateau testified that Gross made about five or six attempts
to contact her outside of work, by calling her on her cell phone
or speaking with her directly, asking if she had any problems
with Lopez. Robateau reported these conversations to Lopez
and told him that they were a “little annoying.” Lopez in-
structed Robateau to fill out an incident report, which she did.
This report was not introduced into evidence.
The reports from Gross’ coworkers are recorded in Lopez’
log book. On May 10, Lopez wrote: “Willy approached me and
told me that he feels really uncomfortable when Daniel calls
him at home to discuss Union activities. He does not want him
to call him at home.” Similarly, on May 12, Lopez noted that,
“Jenny and I sat down and discussed her future transfer (5/20).
She also brought up the fact that Dan calls her outside of work
to discuss Union info. She stated that she wants no part of those
discussions and feels very uncomfortable.”
According to Gross, he was working his shift on May 13
when Lopez called him into the back room. Lopez stated that
he had gotten complaints from two partners that Gross had
harassed them, and he was not to call Starbucks workers on the
telephone any more to talk about Starbucks. Gross asked for
their names, and Lopez refused to provide that information.
Gross asked Lopez what would happen if he were to continue
to call employees to talk about Starbucks and Lopez stated that
“we would be back here again.”80
Lopez testified that, after the baristas in question approached
him about this matter, he sat Gross down in the back room and
“asked him about it.” Lopez asserted that he told Gross that it
was his right to call whomever he wishes after work, and he
cannot monitor that, but if a partner claimed harassment, then

79 Inasmuch as Gross had received a “NI” rating on his last perform-
ance review, he would have been ineligible to receive this cash award.
The General Counsel has suggested that Lopez was deliberately at-
tempting to provoke Gross by this comment.
80 According to Gross, Lopez also complained that when Gross en-
tered the store that day, he failed to greet Lopez and that such conduct
was a violation of Starbucks guiding principles and was not creating a
positive work environment. Gross replied that he had never heard of
such a policy, and his failure to greet Lopez was in protest of the April
29 update.
its his responsibility to address that. After some initial evasive-
ness, Lopez admitted that that he knew Gross had been calling
these partners about the Union, and that Robateau had told him
that Gross had been repeatedly calling her about joining the
Union. Lopez further described his meeting with Gross in his
log. His log entry for May 13 reads as follows:
Dan and I had a conversation regarding calling partners at
home. Partner[s] recently approached me and told me that
[they] felt uncomfortable with Daniel Gross calling them at
home (or cell). Dan told me that maybe someone else called
them and used his name (which wasn’t the case). I also men-
tioned to him that these actions weren’t creating a work envi-
ronment (which was classified as an opportunity during his
last review.) He didn’t agree with me because he wanted to
know which partners approached me. I was not going to tell
him.
The complaint alleges that Lopez unlawfully prohibited em-
ployees (in this case, Gross) from discussing the Union while
off duty. According to both Gross and Lopez, Lopez did not
specifically mention the word “union” but made a more general
reference to Starbucks. In both his log and testimony Lopez
admitted, however, that he knew that Gross had been calling
employees to discuss the Union. Moreover, it would have been
apparent to Gross, or to any other employee for that matter,
what Lopez was referring to when he admonished Gross that
his actions weren’t creating a good work environment, which
was, as Lopez noted, an area in which Gross previously had
been told he must improve his performance.
It is well established that employees are entitled to discuss
unions and solicit for unions on nonworking time, unless the
employer can show that it needs to limit the exercise of that
right in order to maintain production or discipline. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), Peyton
Packing Co., 49 NLRB 828, 843–844 (1943), enf. 142 F.2d
1009 (5th Cir.), cert. denied 323 U.S. 730 (1944). It follows
therefore, that employees have, at the very least, the same Sec-
tion 7 right to discuss union matters or working conditions
outside of work, where issues of production or discipline are
not directly implicated. Further, The Board has found that un-
ion solicitations do not lose their protected status simply be-
cause a solicited employee rejects them, or feels bothered or
harassed by them. Frazier Industrial Co., 328 NLRB 717, 718–
719 (1999), enfd. 213 F.3d 750 (D.C. Cir. 2000). Even persis-
tent and repeated union solicitations do not constitute harass-
ment if the soliciting employee does not act in an offensive or
threatening manner. Frazier Industrial, supra; RCN Corp. 333
NLRB 295, 300 (2001). See also Consolidated Diesel, 332
NLRB 1019, 1020 (2000), enfd. 263 F.3d 345 (4th Cir. 2001).
Here, there is no such evidence of threatening behavior or of
harassment. Accordingly, by counseling Gross that his off-duty
interactions with employees (which all knew were union re-
lated) did not contribute to a good working environment (which
had been identified as an area in which Gross was expected to
improve his performance), Lopez engaged in conduct which
has a reasonable tendency to restrain the exercise of Section 7
rights and Respondent thereby violated Section 8(a)(1) of the
Act.
STARBUCKS COFFEE CO. 47
m. The allegedly unlawful discharge of Gross
(1) Evidence adduced by Respondent regarding
Gross’ work performance
ASM Tiffany Scott had worked with Gross on several occa-
sions between May and August 2006. According to Scott, Sat-
urdays tend to be slow days, so employees use this occasion to
clean the store. According to Scott, Gross’ performance was
“mediocre” in that he did not take initiative, and always had to
be asked to do things. Scott acknowledged that Gross per-
formed his assigned tasks, but did them very slowly.
On one occasion, as Lopez was cleaning the baseboards, he
received a telephone call and asked Scott to finish the task.
Gross approached her and asked Scott if that was what she got
paid to do, she was so much better than that, she should not be
cleaning floors. Scott replied that they were all baristas, and
there was no task too little or big for anyone. Scott reported
Gross’ comments to Lopez.
According to Scott, she typically would meet with Lopez
every Monday to discuss barista performance. Other than the
one specific incident described above, Scott could not recall
any discussion with Lopez regarding Gross’ job performance.
Respondent additionally adduced testimony about Gross’ job
performance from Robateau, who worked with Gross on sev-
eral occasions in 2006. Robateau initially testified that Gross’
job performance was “satisfactory, a little average.” Under
further questioning from Respondent, Robateau then stated that
Gross was not very knowledgeable about things in the store,
and he did not clean during “down times.” Robateau asserted
that rather than clean, Gross would take breaks or sample prod-
ucts. Robateau further asserted that Gross performed his tasks
slowly, seemed obnoxious and not productive and that his
knowledge of drinks was limited.
Robateau recounted a conversation with Gross about the is-
sue of cleaning and stocking. He told her that it was not part of
her job description to clean, and she was doing more work than
she had to.
On cross-examination, counsel for the General Counsel ad-
duced testimony that Robateau is a full-time college student
who works at the 36th Street store during the academic year,
and who is allowed to work at a Starbucks location near her
home during the summer months. She additionally took an
extended leave in the summer of 2007 to study abroad. Thus,
the General Counsel asserts, Robateau is the recipient of fa-
vored treatment by Respondent, which would tend to color her
testimony. During her cross-examination, Robateau addition-
ally acknowledged that employees are expected to tell a man-
ager when they leave the floor for their breaks. I note that there
is no evidence, or assertion from Respondent, that Gross took
unauthorized breaks during his shift.
Lopez testified that he believed that Gross’ comments to
Scott, as described above, did not help to create a good work
environment in the store. In addition, Lopez testified that
Gross was not enthusiastic and did the “bare minimum.” He
failed to check the duty roster and had to be reminded of daily
tasks, or else he would not do anything. Lopez further testified
that Gross was not enthusiastic. By way of example, Lopez
cited a basic trash run. Gross would take out one bag of trash at
a time rather than putting all the trash in the bin at one time, as
other partners did. Thus, while it took other employees 10 min-
utes to do a trash run, it would take him 25–30. Lopez stated
that he had to remind Gross to clean the blender pitchers every
time he made a Frappuccino. He took a long time to wash
dishes rather than just giving them a quick rinse and placing
them in the sanitizer. According to Lopez, there were also a few
times where he made an incorrect beverage during a peak pe-
riod on a Saturday. He had to be reminded to get caught up
with new promotional material. On cross-examination, Lopez
admitted that there is no reference in his log regarding the need
to remind Gross of daily tasks, Gross’ failure to consult the
duty roster, his method of removing trash or washing dishes,
doing the “bare minimum” or making drinks incorrectly. A log
entry dated July 22 notes that Gross spearheaded a coffee tast-
ing.
Respondent also relies upon the undisputed fact that Gross
failed to open up his availability beyond Saturdays and Sun-
days. He requested many Sundays off, so he rarely worked both
shifts on a weekend. Thus, between April 14 and August 5,
when he was discharged, Gross worked only five Sundays.81
(2) The July 15 demonstration and Allison Marx incident
Evan Winterscheidt, a shift supervisor at a Starbucks facility
located at 14th Street and 6th Avenue (the 14th Street store)
and member of the IWW had been suspended, pending investi-
gation, for engaging in an altercation with a coworker. On July
15, 2006, Gross was among a small group of union members
who picketed at the store to protest the discipline.82 DM Allison
Marx was at a meeting at the time and was called about the
demonstration. She, together with DM Karen Schueler came
down to the facility.83 As Marx and Schueler approached the
entrance to the store, Gross stepped forward and identified
himself as Daniel Gross, asking, “Are you Allison Marx?”
Marx relied in the affirmative and Gross said, “It would be very
bad for you to fire Evan Winterscheidt.” He repeated that
statement several times, as his voice became louder and he was
pointing at Marx.84 Marx told Gross not to threaten her, and
entered the store.
Later that evening the police were called and told the dem-
onstrators that they were required to have a permit for the type
of picket sign they were carrying. The demonstration dis-
banded. Sometime during this evening Gross called Marx at her
company-issued cell phone number. He left a message, stating
that any action taken against Winterscheidt would be met with
a “swift response.”

81 Respondent acknowledges that Lopez granted Gross’ requests for
time off, and asserts that this is consistent with how it treats other part-
ners.
82 The demonstrators were carrying signs that said, “Unlawful Firing
at Starbucks,” “Stop Union busting at Starbucks,” and “IWW.” They
were chanting, “Reinstate Evan.”
83 Marx did not testify. According to Respondent, she is on medical
leave and unavailable due to the recommendation of her physician.
84 According to Schueler’s testimony, at one point Gross’s finger
was within six inches of Marx’s face. In the statement she later pre-
pared for Respondent, however, Schueler stated that she had entered the
store ahead of Marx, and did not explain how she came to observe
Gross’ gestures.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
Marx reported Gross’ comments to Wilk, who met and ob-
tained statements from both Marx and Schueler. Both managers
reported that they had felt distressed and threatened by Gross’
behavior and comments, and Wilk referred the matter to the
P&AP department for further investigation. The matter was
assigned to investigator Marc Stella.
Stella first spoke with Marx and obtained a voluntary state-
ment from her about the event. During Gross’ shift on July 29,
2006, he was asked to meet with Stella and DM Grzegorczyk.
At the outset of the interview, Gross requested a union witness,
and his request was denied. Stella presented Gross with a “Con-
sent to Interview” form. In relevant part this form states that, by
signing the form, an individual is acknowledging that Starbucks
may continue the interview for as long as necessary; that the
individual is free to leave but that failure to cooperate may
result in disciplinary action. Gross refused to sign the docu-
ment, and Stella read it to him. Then Stella commenced the
interview. He asked Gross if he recalled a conversation with
Marx on July 15, to which Gross answered in the affirmative.
Gross admitted to stating, “Don’t fire Evan” but stated that he
could not recall saying anything else, such as “It will be very
bad for you.” Gross was asked if he had blocked the door to the
facility and stated that he had not, and could provide witnesses
that would attest to that. Stella asked Gross if he had touched
Marx and Gross said that he had not and that if such an allega-
tion surfaced he would sue Starbucks for slander.85 Gross was
asked if he had been spoken to by the police about the incident,
and he stated that he had not. Stella asked Gross if he could
recall anything else from the event, and Gross stated that he
could not. On several occasions during the interview, Gross
asserted his right to organize and protest in support of a fellow
employee. According to Stella, he reminded Gross that their
conversation was about his interaction with Marx, not his right
to organize. Stella requested that Gross write a statement about
his interaction with Marx, and Gross stated that he would not
do so without a union lawyer present. Stella advised Gross that,
in that case, the matter would be reviewed based upon the facts
that were known, without Gross’ explanation as to what had
occurred. Stella said that a determination on the matter would
be made by partner resources.
The General Counsel has alleged that Stella unlawfully inter-
rogated Gross on this occasion. In assessing whether an unlaw-
ful interrogation has occurred, the Board looks to see “whether
under all the circumstances the interrogation tends to restrain,
coerce or interfere with rights guaranteed by the Act.” Ross-
more House, supra. Here, I do not agree with the General
Counsel that Stella’s questioning of Gross met that standard. As
an initial matter, Gross was a well-known and outspoken union
supporter, who was engaged in a public demonstration during
the relevant period. Moreover, I credit Stella that he limited his
inquiries to Gross’ specific interaction with Marx rather than

85 According to Stella’s testimony, he also asked Gross if he had
pointed at Marx, if he had pointed a finger in her face or if it had been
perceived in that fashion and Gross stated that he did not recall. I note
however, that Stella’s written account of the interview which was made
shortly after it occurred does not reflect that he asked Gross whether he
had pointed at Marx.
Gross’ general union activities during that evening. Marx had
lodged a complaint regarding Gross’ conduct, and Stella was
investigating it. I find that it was appropriate, as part of this
investigation, to ask Gross whether he made the statements and
other gestures attributed to him. Further, it appears that the
Respondent made a reasonable effort to prevent the discussion
from broadening into inquiries about Gross’ other union activi-
ties. Accordingly, under all the circumstances, I do not con-
clude that Stella’s questioning of Gross rose to the level of an
unlawful interrogation. See, e.g., Bridgestone Firestone South
Carolina, 350 NLRB 526, 528–529 (2007).
The General Counsel further has alleged that by advising
Gross that his failure to cooperate in an investigation of alleged
misconduct might lead to disciplinary action taken against him,
Stella unlawfully threatened Gross with discharge. I do not
agree with the General Counsel that Gross was, in this instance,
threatened with discharge for engaging in protected conduct.
While it is true that the alleged misconduct took place in the
overall context of protected activity, Stella’s admonition to
Gross referred to his cooperation in an investigation of specific
allegations of threatening behavior leveled by Marx and, not to
his protected conduct generally. Accordingly, I recommend that
this allegation of the complaint be dismissed.
(3) Gross’ written warning for the Marx incident, final
performance evaluation- and discharge
(a) The warning for the Marx incident
Lopez, Grzegorczyk, and Partner Resources Manager Varino
met with Gross during his next scheduled shift, August 5. Lo-
pez informed Gross that Respondent had completed his investi-
gation into the July 15 incident and determined that Gross had
engaged in inappropriate threatening behavior toward Marx. He
was presented with a corrective action which stated that Gross
had “aggressively confronted the DM when she tried to enter
the store” and “threatened her by pointing at her face and say-
ing repeatedly, ‘It would be very bad for you to fire Evan’” The
corrective action cited Gross for a “clear violation of our guid-
ing principle to treat each other with respect and dignity.”
It is undisputed that Gross’ interaction with Marx, for which
he was disciplined, took place during a concerted employee
protest of the suspension of a fellow employee. As such, Gross’
conduct on this occasion is evaluated under the four factor
analysis of Atlantic Steel, supra.
As to the first factor, the place of the incident, Gross was off-
duty, on a public sidewalk and not in proximity to any on-duty
employee. This factor weighs in favor of protection. The sub-
ject matter of the discussion arose in the context of a concerted
demonstration of support in response to discipline issued to a
fellow employee and union member. All the indicia accompa-
nying the protest concerned themselves with this issue or sup-
port for the IWW generally. Gross’ comments to Marx per-
tained specifically to this concerted, protected activity. Thus,
the second Atlantic Steel factor similarly weighs in favor of
protection. Regarding third factor, the nature of the incident,
Gross’ conduct on this occasion is, in my view, is not suffi-
ciently opprobrious to cause him to lose the protection of the
Act. It may well be the case that Marx interpreted his manner
and comments as threatening, as Schueler testified. Neverthe-
STARBUCKS COFFEE CO. 49
less, although Gross was confrontational, his comments were
sufficiently ambiguous so as not to rise to the level of a threat
against Marx, nor did he use profanity or otherwise engage in
egregious conduct. See, e.g., Fairfax Hospital, 310 NLRB 299,
300 (1993) (employee who threatened supervisor with “retalia-
tion” uttered in a heated exchange regarding the respondent’s
unlawful no-solicitation rule found to retain the protections of
the Act). While Gross apparently repeated his comments, but
they were uttered as Marx was entering the facility and there-
fore not sustained over any significant period of time. Accept-
ing as the truth the fact that Gross pointed his finger at Marx, I
find that insufficient to establish that his conduct was of a char-
acter which would render it unprotected. I find, therefore, that
the third Atlantic Steel factor militates toward continued protec-
tion. Finally, although the Union demonstration occurred in a
context where unfair labor practices had occurred, they did not
involve Winterscheidt’s suspension and the incident in question
was not directly provoked by any unfair labor practices which
have been found here. Accordingly, this factor tends to weigh
against protection. In conclusion, I find that, while Gross was
apparently aggressive and challenging in his interaction with
Marx, his actions failed to rise to a level which would cause
him to lose the protection of the Act.
Accordingly, I find that by issuing Gross a written warning
for the Marx incident, Respondent violated Section 8(a)(1) and
(3) of the Act.
(b) The final performance review and discharge
At this meeting, Gross was also presented with a final per-
formance review. Its effective date is August 5, 2006. Gross
received an aggregate score of 1.4 under key responsibilities
(receiving six scores of “1”) and an overall rating of 1 in Star-
bucks core competencies.86 Among the comments included in
the evaluation are the following:
Dan does not display any behaviors that promote the
culture[,] values and mission of Starbucks. Dan performs
only the bare essential functions of the barista position
when directed, but he does not participate in the life of the
store [or] actively contribute to a positive store environ-
ment or say anything positive about the culture, values and
mission of Starbucks either to customers or fellow part-
ners.
Dan can perform basic barista tasks when directed, but
he does not take any initiative to anticipate customer and
store needs. He seems to be focused on doing the bare
minimum, and makes little effort to create a positive ex-
perience for customers or his fellow partners. He has not
taken a proactive approach to create the ‘Third Place Envi-
ronment’ by communicating issues to his management
team (i.e. blown light bulbs, music volume, inven-
tory/small wares needs etc.).
Dan does not utilize our existing organizational meth-
ods to recognize any partners (i.e. Green Apron cards,
MUG awards, star skills, etc.).

86 Gross’ average score for this component of the evaluation was ac-
tually 1.25, but his score was rounded down to the nearest whole inte-
ger.
As stated above, Dan does not contribute to a positive
team environment in any way. He does not contribute to
the life of the store or to creating a positive work experi-
ence for his fellow partners. In fact, some partners have
specifically asked not to be scheduled with Dan because
they do not feel comfortable working with him. He has not
communicated any partner morale issues to his Store
Manager.
Dan has not been involved with the training of any
new hires, which would be expected of a 3 year tenured
partner. Dan does not take the limited opportunities he has
had to provide positive reinforcement and coaching to new
partners, for example in operational areas and regarding
new products (retail, entertainment, beverage or food.).
Since his last performance review in January 2006
when his poor attendance was identified as a critical area
for improvement, Dan has not opened up his availability.
Although he has worked more shifts than before his Janu-
ary review, he has not consistently worked even the two
days he has availability, frequently requesting Sundays
off. Dan has met the expectation of working both Saturday
and Sunday only five times since his January review. So
while he has worked with slightly higher frequency, his at-
tendance has not improved to a satisfactory level.
As regards Starbucks core competencies, Gross received the
following ratings:
Customer Focus (2); Ethics and Integrity (1); Composure
(1); Personal Learning (2); Dealing with Ambiguity (2); Deci-
sion-Making (1); Interpersonal Savvy (1); Results Oriented (2).
The evaluation additionally contained the following corre-
sponding “Comments on Core Competencies:”
1. Dan is generally polite to customers but he does not
seek ways to provide legendary service and exceed all cus-
tomers’ expectations.
2. Dan does not demonstrate commitment to Starbucks
values, beliefs and principles. Dan has also received a cor-
rective action for an incident in which he displayed poor
judgment when he verbally threatened DM Allison Marx
on July 15, 2006, which resulted in the police recommend-
ing that she file a police report.
3. Dan when meeting other partners has not at times
remained in a calm and respectful manner demonstrating
patience and resilience at all times.
4. Dan has not learned new skills; he has not taken per-
sonal responsibility to pursue his own development within
the company, but has instead blamed others for his lack of
growth within Starbucks.
5. Dan has adapted to shifting priorities or changes in
role when working, he slides to secondary positions and
completes assignments.
6. Dan does not demonstrate the level of experience
and judgment expected of a partner of his tenure in recog-
nizing warning signs or signals before problems emerge.
He seems content to do the bare minimum required and
does not display initiative or act proactively to improve the
environment for customers or fellow partners. Dan also re-
ceived a corrective action for an incident in which he dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
played poor judgment when he verbally threatened DM
Allison Marx on July 15, 2006, which resulted in the po-
lice recommending that she file a police report.
7. Dan does not connect with or show an interest in his
peers or management team.
8. Dan has demonstrated that he can be good at figur-
ing out the processes necessary to getting things done. He
does not, however, display leadership in coaching or men-
toring other partners to do the same.
Lopez presented Gross with his final review, and read the
comments. He then informed Gross that he was being dis-
charged. Gross responded that the “process is not over” and that
he “looked forward to this being played out.”
(c) The decision to discharge Gross
Lopez testified that the decision to discharge Gross was
solely his. When asked by counsel for the General Counsel if
he had spoken with any other managers prior to reaching this
decision, Lopez stated that he had “informed” DM Grze-
gorczyk, who had left the decision entirely up to him. Accord-
ing to Lopez, the termination decision was based upon “all
performance.” The factors which entered into this determina-
tion included Gross’ failure to come in both days on the week-
end; the fact that he requested days off; his overall attitude and
the fact that he did the bare minimum—if he was not asked to
do something, he did not do it. Lopez additionally testified that
he viewed Gross’ comments to Scott as an attempt to under-
mine him.
Wilk similarly testified that Lopez made the decision to fire
Gross. However, under questioning from counsel for the Gen-
eral Counsel, it became apparent that others were involved in
this process. Wilk acknowledged that she had been consulting
with Lopez throughout his tenure at the store. Prior to the ad-
ministration of Gross’ final performance review, Lopez met
with Wilk, DM Grzegorczyk, and Partner Resources Manager
Varino. According to Wilk, Lopez stated that he wanted to
discharge Gross, and the group concurred. Wilk also testified
that there were two meetings regarding the decision to dis-
charge Gross, and she was uncertain whether Lopez had at-
tended both. Wilk testified that when she saw the final per-
formance review, she did not change any ratings, but made
changes to the content and the way it was worded because she
felt that Lopez could have gotten a little more specific.
In addition to the managerial personnel involved in the meet-
ings described above, Wilk testified that she spoke with other
company personnel including McDermet and company legal
counsel to keep them apprised of developments.
Wilk initially testified that while the Marx incident had been
incorporated into the final review, in her opinion, the rating
would have been the same regardless of the incident. In later
testimony, when asked whether the Marx episode was one of
the incidents which had led to Gross’ discharge, Wilk replied in
the affirmative.
I do not credit testimony that Respondent left the decision to
discharge Gross entirely up to Lopez. I find it highly improb-
able that such a decision would have been entrusted to a store
manager with less than four months experience directly super-
vising this employee, given the long history and probable legal
ramifications involved. Moreover, although I found that Wilk
was a reluctant witness on this issue, it is apparent that numer-
ous other managerial personnel, as well legal counsel, were
involved in the discussion. I doubt that the involvement of these
high-level officials was simply to “rubber stamp” a determina-
tion made by a low-level manager with regard to this prominent
union supporter.
(4) Analysis and conclusions
There is no doubt that Gross was an active supporter of the
Union and that this activity was well known to Respondent. In
fact, it would be fair to say that Gross was frequently a “thorn
in the side” of Respondent during the course of events in ques-
tion. Acknowledging this, Respondent makes several argu-
ments in an attempt to undermine the General Counsel’s prima
facie case under Wright Line.
Respondent also argues that even if the General Counsel
could demonstrate that Starbucks’ communications and conduct
in response to anticipated or actual union activity somehow
constituted evidence of general animus toward the Union, the
existence of such general animus, by itself, cannot sustain the
General Counsel’s burden with regard to Respondent’s decision
to discharge Gross. Thus, Respondent argues that there is no
nexus between the decision to discharge Gross and his union
activities and, therefore, the General Counsel cannot sustain a
prima facie case under Wright Line.87
Respondent argues that there is no evidence of Lopez har-
bored any animus toward Gross for his union activities. In par-
ticular, Respondent cites to Robateau’s testimony that Lopez
was “very respectful” toward Gross, as he was toward other
employees. Respondent further argues that the performance
evaluations placed into evidence by the General Counsel show

87 In support of this assertion, Respondent relies upon Wegman’s
Food Markets, Inc., 351 NLRB 1073, 1078 (2007), and Allied Me-
chanical Services, 346 NLRB 326, 330 (2006). In Wegman’s Food
Markets, the administrative law judge found that an antiunion video
shown to employees, which was not alleged to be unlawful, did not
establish a nexus between union animus and the discharge in question.
In particular, the judge found that there was nothing in the video which
suggested that the respondent’s hostility toward the union was such that
it was willing to violate the law by discriminating against employees to
keep the union out. Such a circumstance is clearly distinguishable from
the instant case, where there is substantial evidence of unlawful con-
duct alleged, and as I have found, proven by the General Counsel. In
addition, in that case, the judge found that the employee in question had
not been engaged in union or concerted activity protected by the Act or
that the respondent had any knowledge or reason to believe that he had.
Rather, the employee in question was discharged because he was a
marginal employee who failed to adequately perform the duties of three
different positions and who had had previously been warned about
making disrespectful comments toward his supervisors and, moreover,
had taken a dismissive attitude toward the many disciplinary actions
taken against him. Id. Thus the circumstances presented there are inap-
posite here. In Allied Mechanical Services, supra, the Board declined to
find that the respondent harbored animus toward one employee on the
basis of its treatment of another employee and further refused to impute
general animus based upon the fact that the respondent had been
obliged to reinstate a number of union members and give them backpay
based upon prior antiunion conduct. Again, for a number of reasons, the
circumstances presented there are different from those found here.
STARBUCKS COFFEE CO. 51
that most employees who receive “needs improvement” per-
formance ratings separate their employment before the end of
the next 6-month review cycle, and that they are frequently
discharged within a matter of weeks. Respondent contends that
its lack of animus toward Gross is documented by the fact that
it not only allowed him to remain employed through the next
review cycle despite his failure to improve his performance, it
extended his review period specifically to give him additional
time to improve. Respondent contends that, unlike other part-
ners, Gross never took steps to improve his work performance.
Thus, it is contended, the General Counsel cannot establish that
Gross was treated less favorably than other partners.
Respondent further contends that animus cannot be inferred
based upon the timing of Gross’ discharge. In this regard, Gross
clearly engaged in open and substantial union activities
throughout 2004, 2005, and 2006, including conspicuous par-
ticipation in multiple large-scale protests and “actions” against
the company in 2004 and 2005, for which he received no disci-
pline. Respondent asserts that the timing actually proves to the
contrary: had Starbucks wanted to discharge Gross based upon
his union activity, it could have done so much earlier. Respon-
dent has a point here, however the General Counsel convinc-
ingly argues that there was a particular escalation of union ac-
tivity beginning in November 2005 which was not only deemed
disruptive by Respondent, but was highly publicized. Thus, an
argument can fairly be made that the timing of the downgrading
of Gross’ performance corresponds to the escalation and, more-
over, supports the General Counsel’s theory of the case.
As I have noted above, I do not credit the testimony of Re-
spondent’s witnesses that it was Lopez who, single handedly,
made the decision to discharge Gross. Moreover, even if I were
to credit such an assertion, I find that the evidence does estab-
lish that Lopez harbored animus toward Gross’ protected con-
duct. For example, Lopez specifically admonished Gross about
calling coworkers outside of work. I note that other managers
frequently told employees that what they did on their own time
was their own business. Not so with Lopez, who made it clear
that he felt that such (protected) attempts to communicate with
coworkers about the Union did not create a good working envi-
ronment. And, as noted above, I have found that the April 29
“Update on Performance” constitutes persuasive evidence of
animus, whether this emanated from Lopez individually or
Respondent institutionally. And, as has been discussed above, I
infer animus generally from the commission of various unfair
labor practices, some of which were aimed at Gross individu-
ally.
Thus, I have found that the General Counsel has made out a
prima facie case that Gross’ protected conduct was a substantial
or motivating factor in his discharge. Accordingly, the burden
now shifts to the Respondent to establish, through a preponder-
ance of credible evidence, that it would have discharged Gross
notwithstanding his Union and other concerted protected con-
duct. Wright Line, supra. Respondent makes a number of argu-
ments in this regard.
Respondent contends that due to Gross’ lack of availability
and overall performance it would have discharged him regard-
less of his union activity: “Indeed, it is difficult to imagine any
employer retaining an employee who rarely worked and who,
when he did, exerted little effort and encouraged co-workers to
follow his lackluster example.” In this regard, Respondent
points to the testimony of Scott and Robateau, which was es-
sentially unrebutted by the General Counsel. Indeed, it may be
fair to say that the picture that emerges of Gross’ work per-
formance, in general, is one of an employee who worked infre-
quently, whose primary goal was to organize employees on
behalf of the IWW and was otherwise disengaged from the
Starbucks employee culture. Nevertheless, Respondent has
pointed to no incident where Gross was insubordinate, refused
to follow work instructions or engaged in misconduct while on
the job. Similarly, there is no evidence that he was unable to
perform the job responsibilities of a barista. In fact, his per-
formance evaluations reflect that his drink preparation and
customer service skills were deemed adequate in every circum-
stance. There is no documentation of assertions, raised at the
hearing that he deliberately tried to sabotage customer service
by preparing and serving the wrong beverage to customers.
Respondent further asserts that, on multiple occasions, Gross
was given express feedback into those areas of his performance
which needed improvement and that he made no effort to ad-
dress such deficiencies. In particular, Respondent points to the
express request, made in January 2006 and again on April 14,
that Gross increase his “availability and hours in the store.”
Respondent concedes that Gross stopped giving away shifts
after Cannon raised the issue with him, but also points to the
fact that Gross continued to request Sundays off between April
and August 2006, and worked only five Sundays during this
period of time.
The issue of Gross’ overall availability is a complicated one.
It is true that Gross worked less than any other employee during
the relevant period. Nevertheless, I credit Gross’ unrebutted
testimony that Anders told him he would not have to increase
his “availability”: that is, commit to working more days or
hours, to improve his performance review. In this regard, I note
that in his April 14 review, Gross received a “meets expecta-
tions” rating notwithstanding the fact that his availability had
not changed. It is also the case that Respondent’s recommenda-
tion, as set forth in the April 14 review, that Gross increase his
availability, was never presented to him. Thus, there is no evi-
dence that Gross was ever informed that he had to increase his
availability to receive a favorable performance review. More-
over, Respondent apparently approved all of his requests for
time off. As has been noted above, there is no documentation in
any of his performance reviews, or other probative evidence,
that Gross’ actual hours of work, or his lack of “availability,”
compromised his ability to prepare drinks or serve customers in
an adequate fashion. I therefore find that Respondent’s reliance
upon the fact that Gross worked very few hours is pretextual
because there is no probative evidence that his restricted work
schedule concretely impacted his ability to perform the basic
functions of a barista, or otherwise disrupted the operations of
the store.
Additionally, in its brief, Respondent asserts that that, “Gross
took every opportunity to undermine his managers’ authority
and store morale generally.” In support of this contention, Re-
spondent relies upon the testimony offered by Scott and Ro-
bateau, which has been described above. In this regard, relying
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
upon Fredon Corp., 323 NLRB 564, 569 (1997), Respondent
argues that Gross’ situation is indistinguishable from other
cases where the Board has recognized that an employer does
not violate the Act where it terminates a vocal union supporter
upon his refusal to improve his work performance. Further,
Respondent cites to other situations where employees have
been terminated for refusal to accept feedback, lack of initiative
and bad attitude.
As an initial matter, I note that Gross’ conversations with
coworkers about work assignments and wages generally is
concerted activity. Here, there is no evidence that Gross sought
to prevent employees from completing their tasks or otherwise
interfered with their work assignments. While certain of Gross’
coworkers may not have welcomed such comments, the Board
has held that other employees do not have to “accept” an invita-
tion to engage in concerted activity for the invitation to be pro-
tected. Whittaker Corp., 289 NLRB 933, 934 (1988). More-
over, although Respondent apparently maintains a rule that
such conversations are not permitted, I have found that such a
rule had been applied in a discriminatory fashion and further
conclude that such brief conversations, absent evidence of
workplace distraction, are protected conduct. Waste Manage-
ment of Arizona, supra. Thus, to the extent Respondent relies
upon Gross’ workplace discussions of terms and conditions of
employment with his coworkers to justify its decision to dis-
charge him, to cite these conversations as proof that he failed to
create a positive work environment or to impugn his “attitude”
about his employment, such reliance evinces an unlawful mo-
tive.
Respondent additionally relies in significant measure upon
Gross’ final performance review in support of its determination
to discharge Gross. However, it is apparent that in various areas
where Gross’ performance was rated inadequate or needing
improvement, concerted, protected conduct is cited. Thus, ac-
cording to the narrative which accompanies the ratings in at
least two Starbucks core competencies, Gross’ interaction with
Marx is specifically referred to as a reason for the “1” rating
received in these categories. In addition, under one “Key Re-
sponsibility” rating where Gross received a “1” it is asserted
that “[Gross] does not contribute to the life of the store or to
creating a positive work environment for his fellow partners. In
fact, some partners have specifically asked not to be scheduled
with Dan because they do not feel comfortable working with
him.” There are no examples of this cited in the evaluation and
I note that neither Scott nor Robateau testified that they had
made such a request. Respondent points to no other evidence to
support this assertion and the only record evidence which ap-
pears to relate whether employees felt uncomfortable working
with Gross involves his attempts to contact them outside of
work to discuss the Union, conduct which is protected under
the Act.88

88 As the General Counsel notes, in his log entry on May 13, 2006,
Lopez essentially admitted that the union solicitations he discussed
with Gross, in his view, were directly related the issue of creating a
good work environment. This corresponds to the language used in
Gross’s final performance review.
Thus, I find that in several areas where Gross’ performance
was found to be unsatisfactory, his protected conduct was cited
as a basis for such a conclusion. Moreover, the final perform-
ance review echoes prior commentary regarding Gross’ failure
to adhere to Starbucks values and beliefs, which I have found to
be a veiled reference to his protected conduct. I therefore dis-
agree with Respondent that this performance evaluation dem-
onstrates a neutral, nondiscriminatory basis for Gross’ dis-
charge. Rather, I concur with the General Counsel that the
evaluation is, in and of itself, direct evidence of Respondent’s
unlawful motive.
Thus, as described above, Respondent has pointed to Gross’
attendance, his lackluster work performance, and his overall
attitude in supporting its determination to discharge him. I have
evaluated these claims above. Respondent has failed to come
forward, however, with sufficient probative evidence to rebut
the General Counsel’s strong prima facie case. While Gross
may not have been a model employee, the record demonstrates
that he was proficient in preparing beverages and customer
service. His cash-handling skills were adequate. He worked
infrequently, but as I have noted, Respondent gave him no spe-
cific guidelines in this regard, and routinely approved his re-
quests for time off. In the areas where his performance was
found lacking, protected activity was often cited as the basis for
such a conclusion. Moreover, substantial evidence demon-
strates that Respondent’s downgrading of Gross’ performance
in several critical areas was pretextual. On whole, therefore,
Respondent has not established that the perceived deficiencies
in Gross’ job performance would have been a sufficient basis
for discharge, absent protected conduct. Accordingly, I con-
clude that by discharging Gross, Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Starbucks Corporation d/b/a Starbucks
Coffee Company is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party, Local 660, Industrial Workers of the
World (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the following acts and conduct, Respon-
dent has violated Section 8(a)(1) of the Act:
(a) Prohibiting employees from discussing the Union while
off duty.
(b) Discriminatorily prohibiting employees at Respondent’s
Union Square East store to use a company bulletin board to
post items of a nonwork nature, including materials relating to
the Union.
(c) Prohibiting off-duty employees employed at Respon-
dent’s Union Square East store from entering the back of the
store.
(d) Implementing and enforcing a rule prohibiting employees
from wearing more than one prounion button at any given time.
(e) Promulgating and maintaining a rule prohibiting employ-
ees from talking about the Union while allowing other non-
work-related discussions.
(f) Promulgating and maintaining a rule prohibiting employ-
ees from talking about terms and conditions of employment.
STARBUCKS COFFEE CO. 53
4. By the following acts and conduct, Respondent has vio-
lated Section 8(a)(1) and (3) of the Act:
(a) Disciplining Tomer Malchi pursuant to an unlawful rule
prohibiting employees from talking about the Union while al-
lowing other nonwork-related discussions.
(b) Discriminatorily preventing Malchi from working shifts
at other Starbucks locations.
(c) Issuing negative employment evaluations to Daniel Gross
on January 29, April 14 and 29, and August 5, 2006.
(d) Issuing a written warning to Daniel Gross on August 5,
2006.
(e) Discharging employees Joseph Agins Jr., Isis Saenz, and
Daniel Gross.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I shall recommend that Respondent, to the extent it has not
done so, rescind and give no further effect to its work rules
found unlawful herein, and that Respondent remove from its
files any unlawful discipline issued to or reference to such dis-
cipline issued to Tomer Malchi or performance evaluations or
discipline issued to Daniel Gross as is consistent with my find-
ings herein, notify these employees that it has done so and that
it will not rely upon these warnings or other disciplinary memo-
randa. I further recommend that Respondent make Gross
whole for any failure to increase his compensation due to
unlawful performance evaluations issued to him, and that the
precise amount to be awarded to Gross be determined in a sup-
plemental compliance proceeding, if necessary.
Having found that Respondent has discriminatorily dis-
charged employees, I recommend that it offer them reinstate-
ment and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent shall remove
from its files of these employees any reference to their dis-
charges and shall thereafter notify them in writing that this has
been done and that the discharges will not be used against them
in any way.
The Respondent shall also post an appropriate notice, as de-
scribed in the order herein.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended89
ORDER
The Respondent, Starbucks Corporation d/b/a Starbucks Cof-
fee Company, New York, New York, its officers, agents, suc-
cessors, and assigns, shall

89 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1. Cease and desist from
(a) Prohibiting employees from discussing the Union while
off duty.
(b) Discriminatorily prohibiting employees at Respondent’s
Union Square East store to use a company bulletin board to
post items of a nonwork nature, including materials relating to
the Union.
(c) Prohibiting off-duty employees employed at Respon-
dent’s Union Square East store from entering the back of the
store.
(d) Implementing and enforcing a rule prohibiting employees
from wearing more than one prounion button at any given time.
(e) Promulgating and maintaining a rule prohibiting employ-
ees from talking about the Union while allowing other non-
work-related discussions.
(f) Promulgating and maintaining a rule prohibiting employ-
ees from talking about terms and conditions of employment.
(g) Disciplining employees pursuant to an unlawful rule pro-
hibiting employees from talking about the Union while allow-
ing other nonwork-related discussions.
(h) Discriminatorily preventing employees from working
shifts at other Starbucks locations.
(i) Issuing negative employment evaluations to or written
warnings to employees because they support the Union or be-
cause of their other concerted, protected activities.
(j) Discharging employees because of their support for the
union or their other concerted, protected activities.
(k) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the Board’s Order, remove from its
files all discipline issued to Tomer Malchi on May 13, 2006,
pursuant to an unlawful rule prohibiting employees from talk-
ing about the Union while allowing other nonwork-related dis-
cussions, and within 3 days notify Malchi in writing that this
has been done and that the discipline will not be used against
him in any way.
(b) Within 14 days of the Board’s order, remove from its
files those employment evaluations issued to Daniel Gross on
January 29, April 14 and 29, and August 5, 2006, and a correc-
tive action issued to him on August 5, 2006, within 3 days no-
tify Gross in writing that this has been done and that these
evaluations or other disciplinary memoranda will not be used
against him in any way. Respondent shall also make Gross
whole for any loss of compensation he may have suffered as a
result of the above-noted disciplinary performance evaluations
in the manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of the Board’s Order offer
Joseph Agins Jr., Isis Saenz, and Daniel Gross full reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
Respondent shall also make Agins, Saenz and Gross whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in the
remedy section of this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cilities in New York, New York, copies of the attached notice
marked “Appendix.”90 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since November
19, 2005.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found
herein.
Dated, Washington, D.C., December 19, 2008.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

90 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT prohibit you from discussing the Union while
off duty.
WE WILL NOT discriminatorily prohibit employees at our Un-
ion Square East store from using a company bulletin board to
post material of a nonwork nature, including materials relating
to the Union.
WE WILL NOT discriminatorily prohibit our off-duty employ-
ees at our Union Square East store from entering the back of
the store.
WE WILL NOT implement or enforce a rule prohibiting you
from wearing more than one prounion button at any given time.
WE WILL NOT prohibit you from discussing the Union while
allowing other nonwork-related discussions.
WE WILL NOT prohibit you from talking about terms and con-
ditions of employment with your coworkers.
WE WILL NOT discipline you for talking about the Union
while allowing other nonwork-related discussions.
WE WILL NOT discriminatorily prevent you from working
shifts at other Starbucks locations.
WE WILL NOT issue written warnings or negative employment
evaluations to you because you support the Union or because of
your other concerted, protected activities.
WE WILL NOT discharge you because of your support for the
Union or your other concerted, protected activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL remove from our files any discipline issued to
Tomer Malchi pursuant to a discriminatory rule prohibiting
employees from talking about the Union and WE WILL, within
three days thereafter, notify him in writing that this has been
done and that the discipline will not be used against him in any
way.
WE WILL remove from our files employment evaluations to
Daniel Gross January 29, April 14 and 29, and August 5, 2006,
and a corrective action issued to him on August 5, 2006, WE
WILL within 3 days thereafter notify Gross in writing that this
has been done and that the employment evaluations and disci-
pline will not be used against him in any way and WE WILL
Gross whole for any loss of earnings and other benefits suffered
as a result of the aforementioned performance evaluations.
WE WILL offer Joseph Agins Jr., Isis Saenz, and Daniel Gross
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Joseph Agins Jr., Isis Saenz, and Daniel
Gross whole for any loss of earnings and other benefits suffered
as a result of their discharge, less any net interim earnings, plus
interest.
WE WILL within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of Jo-
seph Agins Jr., Isis Saenz, and Daniel Gross and within 3 days
STARBUCKS COFFEE CO. 55
thereafter notify them in writing that this has been done and
that the discharges will not be used against them in any way.
STARBUCKS CORPORATION D/B/A STARBUCKS COFFEE
COMPANY