Starbucks Coffee Company

National Labor Relations Board - Administrative Judge Opinions

Dec 19, 2008

02-CA-037548 (N.L.R.B. Dec. 19, 2008)

JD(NY)–46–08
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
STARBUCKS CORPORATION d/b/a Case No: 2-CA-37548
STARBUCKS COFFEE COMPANY 2-CA-37599
2-CA-37606
2-CA-37688
2-CA-37689
and 2-CA-37798
2-CA-37821
2-CA-38187
LOCAL 660, INDUSTRIAL WORKERS
OF THE WORLD
Burt Pearlstone and Audrey Eveillard, Esqs.
New York, New York, for the General Counsel
Daniel Nash, Stacey Eisenstein and Nicole Morgan, Esqs.
(Akin Gump Strauss Hauer & Feld, LLP)
Washington, D.C. for the Respondent
Stuart Lichten, Esq.
(Schwartz, Lichten and Bright)
New York, New York, for the Charging Party
DECISION
Statement of the Case
MINDY E. LANDOW, Administrative Law Judge. Commencing on March 14, 2006, Local
660, Industrial Workers of the World (the IWW or 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,
implemented new policies, more strictly enforced old policies, and disciplined and discharged
employees in retaliation for employees’ support of the Union and other concerted, protected
conduct. On June 12, 2007, the Regional Director, Region 2, issued an Order Further
Consolidating Cases, Consolidated Complaint 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

1 Specifically, at various times throughout the hearing Counsel for the General Counsel moved to
amend paragraphs 5(a), 8, 10, 12(b), 12(c), 14(e), 15(b), 17(a), 20, 21, 22 and 23(a), and such motions
were granted. In addition, I reserved ruling on General Counsel’s motions to amend paragraph 11 and
18(b), as discussed below.
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amended answer, again, denying the material allegations of the complaint, as amended, and
reiterating its general affirmative defenses.2
On the entire record, including my observation of the demeanor 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 Second 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 operations,
Respondent derives gross revenues in excess of $500,000 and purchases and receives goods
and supplies valued in excess of $5,000 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 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) operates 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

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
reiterated this request at the close of its case-in-chief. Respondent declined on both occasions, and does
not raise any such claims in its post-hearing brief. It is well-settled that the party raising an affirmative
defense bears the burden of proof. As Respondent has failed to specify those allegations 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 determine 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 alleged
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.
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
credibility. 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 post-hearing brief, Counsel for the General Counsel moved to withdraw paragraphs 8, 13 and
20 of the complaint. This motion is hereby granted.
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(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 four 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 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 manager. 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 “partners,” consisting primarily of
hourly employees known as “baristas” and shift supervisors. Generally, the duties of these two
classifications of employees include preparing beverages, processing 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 (ASM’s).
B. The Industrial Workers of the World and its Attempt to Organize Employees
In 2004, the IWW launched a campaign to organize the employees of Starbucks. On
May 17, 2004, former Starbucks barista Daniel Gross filed a representation petition with the
Board on behalf of the IWW 6 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 actions included leafleting at various Starbucks stores, telephone calls made to
various members of Starbucks management, public statements to the media, the launch of a
Union website and, as discussed below, several large demonstrations outside various
Starbucks facilities. According to the testimony of several Starbucks managers, such
demonstrations were at times disruptive 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 employees. Locally, Wilk, in conjunction with the New York Metro

5 Wilk was on leave during the period from February to July 2004.
6 The Union also refers to itself as the “Starbucks Workers Union.”
7 It is not contended that the IWW represents a majority of employees 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.
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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 suspected conducted standardized
interviews of employees in an attempt to gauge employee satisfaction with their employment
circumstances and to identify possible or likely Union supporters. Employees who expressed a
desire not to affiliate with the IWW were termed “pro-Starbucks” and lists of known Union
supporters as well as “pro-Starbucks” partners were maintained. 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 suspected Union supporter.9 Respondent disseminated what
information 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 conducted 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
questions 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 various unfair labor practice
charges filed by the IWW. As such charges began to be filed, commencing shortly after the
organizing campaign began during the summer of 2004, Wilk became involved with store
managers “both proactively and reactively” 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 challenged 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 related 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 suspected salts will pass through me as we need to ensure that we are being
consistent and fair in our treatment of performance opportunities.”
10 Wilk initially testified that she did not review all termination decisions 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.”
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According to Respondent, the steps taken with respect to the IWW mirrored those taken
in response to protests conducted by non-union groups and were part of an overall effort to
ensure employee safety and minimize disruption to business. In particular, 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” protest in
February 2006, various managerial personnel were present at the store to lend support to the
store employees. Respondent’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 another 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 discussion 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 identified as a likely Union supporter by his District Manager (DM) William
Smith. On April 25, Smith wrote to Wilk that his identification 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 presented 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
composure while working and, in this regard, has pointed to certain instances where it is alleged
that Agins behaved in an insubordinate 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
support for the Union. She thereafter openly participated in a number of Union-sponsored rallies
and protests. At issue herein are 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

11 Alex Diaz, an employee at the 9th Street store, had been identified as a Union supporter.
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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 warning 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 interrogated 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 warnings and prohibiting
Malchi from working at other Starbucks locations.
5. Isis Saenz
Saenz worked as a barista at the 57th Street store for somewhat over one 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. Respondent 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. Pre-Settlement Background Evidence Cited by the General Counsel
As will be discussed below, in March 2006, Respondent entered 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 certain pre-settlement incidents as
background evidence as follows.
1. The Union Announcement at the 9th 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 Livensperger, 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 management. Montalbano
then clocked in, put on union pins and began to work. Approximately twenty 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

12 Among other things, the fliers were in protest of Bender’s discharge. Bender was subsequently
reinstated as a result of the March 2006 settlement.
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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
questioned 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 approached 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 two hours. Employees participating in this event
included Gross, Malchi, Montalbano and DeAnda (as well as Bender). Also present were
members of other community organizations and a NBC television crew. All told, there were
approximately twenty to thirty demonstrators present, wearing Union insignia, chanting, handing
out leaflets and holding signs. DM Smith, along with other managerial 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
demonstration, scheduled for June 18. The police arrived and informed 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
three hours and there were approximately 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 3:00 pm they proceeded to the 9th
Street store where they encountered DM Smith and SM Warner accompanied 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 as 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. According 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 Montalbano, 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, including Ayala, about joining the Union. They decided to make their
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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 management 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. Malchi 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 informed 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 advice 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 remove 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 referred 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 7:00 am and there were several individuals present throughout
the day, handing out fliers. By about 6:00 pm 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 witnesses, 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 Beckman 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 overheard one of the
individuals at the table, who was later identified to him as RD Wendy Beckman, state, “We
should fire them all.” According to Robert Ayala, Quintero told this individual 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.
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Beckman denied making this comment, stating that she would never do such a thing or
behave in such a fashion. Neither 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 settlement agreement with the
Board, settling various unfair labor practice charges previously filed by the Union. Shortly
thereafter, 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 wearing of buttons or pins. The revised policies 14 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 solicited.
Pins
Partners are not permitted to wear buttons or pins that advocate 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 organization 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 image.
F. Post-Settlement 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.

13 Although a number of the allegations of the instant complaint pre-date the settlement agreement, it
was specifically provided therein that: “It does not preclude persons from filing charges, the General
Counsel 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 investigation 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 said evidence.”
14 Starbucks issued a memorandum addendum in April 2006 detailing 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.
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At approximately 2:30 pm 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 employees had been treated
badly by management, that turnover was at 400%, that safety concerns were being ignored and
that paychecks were being tampered with. Britton attempted 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 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 anti-union
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 criticized the dietary value of certain Starbucks products. The Union
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 of 2006,
and was initially picked up by Reuters. Gross, who had been involved in this effort, was quoted.
This in turn, sparked a certain amount of coverage by other media outlets and IWW supporters
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 memoranda 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 Montalbano, and a number of other
employees visited the store and attempted to collect signatures on a petition in support of
Winterscheidt. As Winterscheidt spoke with coworkers, Montalbano 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 behind. 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.

15 Starbucks had implemented a policy whereby managers were not to accept documents from IWW
supporters.
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According to a report of the incident 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 available 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 Winterscheidt 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 action 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 time frame, 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 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 Starbucks. 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.
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5. Work Rules at Issue Herein
The instant complaint alleges various instances of discriminatory 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, Respondent’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 slip-resistant. Ties or bows are optional, but must be in
solid colors. Hats are permitted 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 distraction.
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 dignity.”
The Partner Guide contains a section called “Problem Solving” which addresses
disputes between or among partners as follows:
Starbucks endorses an atmosphere of mutual respect and support. 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 unsuccessful, 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 partner to another in recognition of that
partner’s efforts and contributions to a particular project or goal. Such awards are manifested in
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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 harmonious
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 instructed 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 warning status to “pick up” shifts at other store locations. This policy
is not written in any official manual distributed to employees.
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 obligations thereunder 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 articulated 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 non-customer areas.

16 In late-March 2006, shortly after the settlement agreement was entered into, Smith informed
Montalbano that management had implemented 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.
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There are two union pins at issue here. One is slightly larger than the other, but both are
less than one 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 occurrences, 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 arrived 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 express 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,
however, 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); Macks Supermarkets, 288 NLRB 1082,
1098 (1988)). “The Board has found special circumstances 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 established 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 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 non-discriminatory reasons and that it was not applied to employees
in a discriminatory manner. In support of this contention, Respondent points to its dress code,
as set forth in the Partner Guide, whose purpose is to ensure that that its partners “present a

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.
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clean, neat and professional appearance appropriate of a retailer of specialty gourmet
products.”
The March 2006 settlement agreement sets forth Respondent’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.” Presumably, 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 appearance 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
testified 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
photographs of such employees entered into evidence by the General 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 insignia. United Parcel Service, supra at 597 (citing Nordstrom, Inc. 264 NLRB
698 (1982)).
Moreover, Respondent’s one-button rule apparently applies regardless of whether the
employee is in a selling area or elsewhere 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 factual 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
propaganda items by civilian mechanics employed by a private contractor 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.
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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
Respondent on this issue, I note that proof of discriminatory intent or effect is not central to a
determination of whether an employer has violated Section 8(a)(1) of the Act. Rather, the
standard is whether the employer engaged in conduct which reasonably 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 motive or on whether the coercion actually succeeded or failed. American
Freightways Co., 124 NLRB 146, 147 (1959); Curwood, Inc., 339 NLRB 1137, 1140 (2003).
In conclusion, based upon the foregoing, I find that Respondent has failed to
demonstrate that there were special circumstances 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 designated 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 employees 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 employee material. Later that
day, Malchi noticed that both documents 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 been
removed, while other items of a non-business nature remained 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 information 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, non-business 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 long-standing policy prohibiting the posting
of non-work 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 support 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
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board should be limited to Starbucks partner 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 two weeks of assessing the store after she became
district manager, probably in October 2005. Quintero testified that after Vetrano became district
manager, either at the end of September or beginning of October, she visited the store about
twice per week. Within two 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 witnesses 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 posting occurred at around the time that Union flyers
were being 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 testimony about the nature of the material that was removed from the
bulletin board, and the dates on which this occurred. Moreover, 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 literature. I find,
therefore, that the change in the bulletin board policy 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, provided that an employer’s restrictions are non-discriminatory.
Register-Guard, 351 NLRB No. 70, slip op. at 5 (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 advertising a car. According
to Respondent, managers routinely take down posts that are not Starbucks related. And, as

18 Respondent additionally cites to Gross’s 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.
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 implemented by Vetrano, Quintero
failed 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.
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noted above, Respondent further contends that this policy was enforced well before the Union
announced its support within that store on November 18, 2005.
As an initial matter, the evidence fails to establish that, during the relevant time frame,
Respondent maintained a blanket rule prohibiting the posting of all non-Starbucks related
material. The partner guide in which was in effect during the relevant time frame contains (in
pertinent part) the following provision:
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
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. Further, while Respondent argues that the change predated knowledge 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 majority 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, telephones 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 employees 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 7th Circuit,23 where the circuit distinguished between personal,
non-work related postings on a bulletin 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 disparate treatment of activities or communications of a
similar character because of their union or other Section 7 protected status. However, the Board

21 As noted above, as a result of the March 2006 settlement, Respondent revised this policy to
prohibit the distribution or posting in any work of areas any printed material such as notices, posters or
leaflets.
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).
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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, slip op. at 9, 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 Respondent’s contention that it was neutrally applying a long-
standing rule is not supported by the evidence. Rather, the evidence 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 contention 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 requiring 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 enclosed in glass and Respondent allowed only work-
related notices 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 previously allowed employees to
post notices of a personal nature, notwithstanding a rule requiring that they first obtain
permission to do so. Once union literature began appearing on the bulletin board, it was
selectively removed. Then, the prohibition 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 campaign. 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
managers 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
offered no further clarification of what she meant by that remark.
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The General Counsel has alleged that, commencing in about March 2006, under the
guise of this no-solicitation policy, Respondent has maintained and enforced a rule prohibiting
employees from discussing the Union while allowing them to discuss other subjects which are
unrelated to work. Shift Supervisor Aiesha Mumford testified that in March 2006 she was
temporarily 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. According 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 actions 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 cannot have a conversation about
the Union even when not busy because it is considered solicitation. Quintero added that
employees 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
customer is connected to it. When there are no customers, employees may discuss things that
are going on in the store, and matters such as i-tunes, music, movies and books. Once a
customer comes for service, however, employees are expected to focus on taking care of the
customer.25 Malchi, generally corroborated 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 participated 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

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 “solicitations.”
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.
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Later that month, as Malchi was receiving a final written warning 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 Malchi 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
operations more generally.
According to Montalbano, in April 2006 he and De Anda 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 conversations were solicitation, and would have to stop. Montalbano 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 non-Union partners feel, that it makes them feel uncomfortable at work
when there is talk about the Union. DeAnda asked Smith if he could further define solicitation.
According to 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
replied that Montalbano could not do that, but that he could discuss whatever he wished on
breaks, lunch or before or after work, but not while working at the store. Based upon
Montalbano’s credible demeanor and his detailed account of this aspect 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 conversation.

27 The record contains evidence that Malchi also distributed union literature while working. These
instances will be discussed below.
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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 non-work 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
solicitation while they or the partner they are soliciting are working. Respondent further notes
that its managers frequently told employees 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 non-union solicitations and, even if it
could be proven that in certain isolated instances Respondent tolerated partners engaging in
this type of selling, under Register- Guard, supra, slip op. at 10, this would not amount to a
violation of the Act absent evidence of discriminatory enforcement.
With regard to the General Counsel’s argument that Respondent has prohibited mere
talk rather than solicitation, Respondent, citing Washington Fruit and Produce Co., 343 NLRB
1215, 1219 (2004), argues that the Board has recognized that an employee 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, Respondent 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 union 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 support 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 evidence supports the conclusion
that Respondent has consistently interpreted its no-solicitation rule to be the functional
equivalent 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 operations.
The Board has held however, that there is a distinction between 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 employees to join the Union or merely discussing the
Union. Obviously, Respondent can lawfully make customer service a priority, but there is no
direct, probative evidence that employees 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.
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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 . . .” Jensen Enterprises, 339 NLRB 877, 878
(2003). Further, in considering whether communications from an employer to its employees
violate the Act, “the Board applies an objective standard of whether the remark tends to interfere
with the free exercise of employee rights. The board does not consider either the motivation
behind the remark or its actual effect.” Scripps Memorial Hospital Encinitas, 347 NLRB 52
(2006) (quoting Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
Applying those principles here, I find that the credible evidence establishes that social
discussions were allowed among employees while they were working at the bar. Quintero
admitted that when not busy, employees discuss a variety of topics. Further, the testimony of
Malchi and Ayala, which was unrebutted, 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 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 non-work conversation was
permitted there. See also Emergency One, Inc., 306 NLRB 800 (1992) (respondent unlawfully
restricted conversations about the union during work time while permitting other conversations
including those about non-work matters); ITT Industries, 331 NLRB 4 (2000)(respondent’s
instruction not to engage in any discussion of the union with any employee unlawful where
employees were, notwithstanding rule in employee handbook prohibiting all solicitations during
working time, allowed to engage in discussions and solicitation on the production 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 unchallenged by the General Counsel, which prohibited “approaching fellow employees in
the work place regarding activities, organizations 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 employee 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.
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Here, the unrebutted evidence establishes that Respondent does not prohibit, and has
allowed employees to talk generally about non-work matters during work time but has
specifically prohibited employees from talking about the Union under similar circumstances,
regardless of the content of the conversation. Accordingly, by issuing a blanket prohibition
against discussions of the Union while on work time, while allowing employees to talk about
other non-work matters, Respondent has violated 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 prohibited discussions of working
conditions among employees, 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 solicitation, he told Smith that the Act gave employees the right to talk
about wages and working conditions as long as it didn’t interfere with work. Smith stated that
wages are a private issue and Montalbano is not supposed to talk about them.29 Smith testified
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 specifically
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 employees. Accordingly, I find that Respondent’s
suggested interpretation 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 employment violate Section 8(a)(1) of the Act. Flamingo Hilton
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

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 discussion 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 discussions about
wages and working conditions was exhausted prior to asking the specific question regarding whether it
was stated that they were a “private issue.” In any event, as the Board has noted, testimony elicited
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 testimony
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 coworkers, as it would confuse them. Montalbano was instructed to refer inquiries to store
management.
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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 admonishing 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
involved 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 discussing 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 matter 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 announcement 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 employees as well. At some point in late-November, it was announced 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 Malchi replied that he was not, Doran advised him that he was not allowed
in the back room. Malchi asked if this was a new policy, 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 acknowledged 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
manager. 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 testimony about when this change was
implemented.
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There was no rebuttal offered by Respondent to Malchi’s testimony that such a
restriction no longer exists at Union Square East, and has not been in effect since some time in
March 2006.
General Counsel argues that the implementation of this policy was designed to restrict
the access of pro-Union employees 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 designed
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 enforcing 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 monetary error while filling out a deposit form
because she was distracted 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 convince 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 basics” 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 testimony was that Vetrano spoke to
him about enforcing the “back room standards” among other policies such as dress code and
cleanliness standards after about a week and a half after she first reviewed store operations.
However, Quintero subsequently testified that Vetrano, “said we had to follow dress code
policies and standards and stuff like that . . .after they had addressed 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 witnesses on when this rule began to be enforced is, at best, vague.
In agreement with the General Counsel, I find that the restrictions on access to the back
room were enacted with an anti-union 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 specify 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
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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 communicate
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 activity 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 employees to enter the back room. This reversal undermines
Respondent’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 entering the back room of its Union
Square East while off-duty, 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 motivation 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 violation of Section 8(a)(3) under Wright Line,
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, supra; Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999). Proof of an employer's motive can be based upon
direct evidence or can be inferred from circumstantial evidence, based on the record as a
whole. Ronin Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food Services, 343 NLRB
1183 (2004); enfd. mem. 179 LRRM (BNA) 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 employee has engaged in protected activity an inference of unlawful motive is raised.
See McClendon Electrical Services, 340 NLRB 613, fn. 6 (2003) (citing La Gloria Oil, 337 NLRB
1120 (2002), enfd. mem. 71 Fed Appx. 441 (5th Cir. 2003) (Table)). 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

31 As General Counsel further asserts, the cited provisions of Respondent’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 before being allowed behind the
counter. General Counsel argues that the fact that Respondent did not follow its own announced policy is
an indication of unlawful motive.
32 Other alleged violations of Section 8(a)(1) are discussed below.
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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.” Septix Waste, Inc., 346 NLRB 494,
496 (2006); Williamette Industries, 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 preponderance 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, further, issued discipline to them pursuant to such disparate
enforcement, in violation of Section 8(a)(1) and (3) of the Act.
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.
Employees 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 employees. 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 reprimanded 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 one and one-half 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 questioned 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 prohibited distracting jewelry and Quintero then said that the
necklace 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
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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 religious 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. According to Malchi, Vetrano said he could leave. Malchi received
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 conjunction with other
discipline, as described below. Although Malchi testified that Vetrano had told him that he would
not be disciplined for this incident, such testimony is contradicted by Malchi’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 admitted 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 insisted 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 discriminatory treatment. Respondent further contends that Ayala’s
pendant, due to its size, constituted a potential safety hazard, and that both employees were
disciplined for insubordinate behavior.
The evidence establishes that both Ayala and Malchi were open Union supporters who
participated in protests, demonstrations, 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
participation in protected conduct, supports an inference that her Union activities were a
motivating factor in Respondent’s actions toward her. However, in disagreement with General
Counsel 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
consequence of disparate enforcement of Respondent’s dress code. Thus, assuming that I
were to conclude that the General Counsel 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.

33 The corrective action at issue was signed by Quintero and witnessed by ASM Edwin Gomez on
February 17, 2006. It contains a statement to the effect that Malchi refused to sign it.
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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 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 prohibited by the dress code policy, failing to tuck in their shirts
and failing to wear the correct color clothing. In addition, Respondent’s witnesses testified to a
number of instances where employees 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 enforcement,
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
alleged 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 complaint.35
3. Malchi’s Alleged Violations of Respondent’s No Solicitation Rule

34 Although the General Counsel contends in its brief that the stricter enforcement of the dress code
is a violation of Section 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 complaint on numerous occasions during the hearing, and at no
point put the Respondent on notice that it would argue that the overall enforcement 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 Paragraph 18(b) of the complaint. During the hearing, I reserved ruling on 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 General Counsel was contending. After reading the post-hearing briefs, I
find it appropriate to grant the General Counsel’s motion to amend this allegation of the complaint;
however, for the reasons discussed above, I find it to be without merit.
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Certain facts relating to these allegations have been discussed elsewhere in this
decision. For ease of reference, I reiterate them here.
Prior to March 7, 2006, Respondent maintained the following 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 giving 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
working. Malchi said that under the NLRB settlement the old distribution 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 customers 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 telephone 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
warning. He left the store and then returned for his shift. At the time, Quintero told Malchi that he
was on final warning for solicitation and the distribution of materials while working. Malchi 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, Beckman 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 conversations had led to the issuance of a final warning. Beckman told

36 A borrowed partner is an employee who is temporarily assigned to a location other than where he
or she typically works.
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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 conversations 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 working 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 working 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 conversations while
customers need to be served and no matter what the topic if another partner is offended
by the conversation 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
uncomfortable 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
corrective 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
corrective 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
witnessed soliciting/distributing flyers in the store at the bar” and another on April 3 where
“Tomer approached a borrowed partner 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 distributing printed materials concerning a
union party while working at the bar; a March 13 discussion with Vetrano about a complaint

37 Although this corrective action is dated March 7, it encompasses both incidents as described
above.
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received from a borrowed partner (Mumford) regarding Malchi’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 working.38
The warning further provides:
This document serves as notification of your final warning. Please note that further
infractions of our policy regarding solicitation and distribution or of any other Starbucks
policies will result in termination of your employment. As we discussed, while you are on
final warning, you are not permitted to work in stores other than your home store. If you
demonstrate 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 statement of protest to the warning, and
signed it.
The General Counsel alleges that the above-described corrective actions and final
warnings issued to Malchi are unlawful. The General Counsel contends that the discipline
issued to Malchi was based upon a solicitation policy that was both presumptively unlawful and
disparately enforced. Moreover, General Counsel contends that Malchi was prohibited from
borrowing shifts to prevent him from organizing in other facilities, and that Respondent’s “best
practice” is merely a pretext to restrict his movement and contact with employees. General
Counsel points to the fact that there is no written policy restricting partners from borrowing other
shifts when on final warning. General Counsel further points to the fact that Respondent was
apparently willing to give Malchi additional hours at his own store during the time frame 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 permitted 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 time frame
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 evidence 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 . . .”

38 It appears from the record that this reference was to Malchi’s conversation with borrowed partner
Schwartz.
39 When asked what the rationale for this “best practice” was, Beckman stated: “Why would we want
to send a person with performance issues to another location?”
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The corrective action form dated March 7 references two situations, one involves
Malchi’s distribution of Union related materials in a work area, on work time. 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. 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 non-
admissions clause. Holding 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.
General Counsel further contends that Respondent discriminatorily restricted Union-
related solicitations while allowing others to take place. In support of this contention, the
General 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 circulated 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 coworkers at his store, and distributed CD’s of his band to customers and
coworkers.
It is true that the General Counsel adduced evidence of certain 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 General Counsel’s burden
of proving that Respondent discriminated against Union-related solicitations while consistently
tolerating other types of solicitation for non-Union matters during in work areas during work time.
Notwithstanding the foregoing, I find that the March 7 corrective 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 performance of their job
responsibilities or otherwise disrupted operations at the store, I accordingly conclude that to the
extent Respondent 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 discriminatory rules adopted as a
result of union campaign is unlawful).
Although Respondent argues that it lawfully issued discipline to Malchi for distribution of
written materials while working, 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. Further, 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. Accordingly, 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 conduct. See Mid-Mountain Foods, Inc. 291 NLRB 693, 699
(1988).
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Similarly, I find that the final warning issued to Malchi on May 13 is unlawful in that it
relies, in significant part, on Malchi’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); Mid Mountain Foods, supra. By
Respondent’s own admission, its restriction on Malchi’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, non-discriminatory reasons for its prohibition on Malchi’s working at other
Starbucks locations. Accordingly, I find that such restrictions were also discriminatory and in
violation of Section 8(a)(1) and (3) of the Act, as alleged.40
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
Respondent rely, for varying reasons, on the assumption that Agins was not identified as a
Union supporter until the public declaration at the 9th Street store on May 28, 2005. As I have
noted above, however, Smith identified Agins as a likely Union adherent 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 Respondent, 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 volume of customers due to a local street fair. At the time there
were three employees on duty: Agins, ASM Tanya James42 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

40 General Counsel’s Motion to amend paragraph 11 of the complaint is granted. General Counsel
has made it clear that this allegation of 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 literature 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
activity.
42 James was an ASM for approximately three years. She commenced working at the 9th Street store
in April 2005. She was promoted to store manager in May 2007.
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assistance 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 blenders 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, “this is bullshit.” At
that point James told Agins that he needed to keep his composure 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 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 discussion 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
discharged 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 understaffed, which perhaps led to his
frustration? I think we need to figure all of that out. Assuming it was a ‘one off’ my
recommendation 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 preparing 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 insubordinate 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 Corporation. Therefore, this corrective action serves as a final warning that
the aforementioned behavior, if repeated will result 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 administration of the warning witnessed
by another manager, in apparent contravention to Respondent’s usual practice, as documented
elsewhere in the record.43

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.
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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 Respondent alleging, among other
things, that Respondent had unlawfully refused to allow employees to wear buttons expressing
their support for the Union. By that time, employees at the Union Square East store had been
wearing buttons without incident, but Smith had continued to insist that employees at his store,
including Montalbano, remove such buttons on pain of 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 during 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 identified 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 company-sponsored event intended to
promote its bottled water product. Agins was there, along with his father, who was wearing 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 acknowledged
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 became then became heated. There are essentially two segments to the narrative
presented by the witnesses 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 intervened 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 401K 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
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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 action.
Montalbano told Agins to calm down and Malchi pulled him away and he went to sit down.
Sometime later, James approached 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
business, 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 during 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’ pre-trial
affidavit does not make reference to any profanity 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 ten to fifteen 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 getting 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 escorted Yablon out. The group remained at the store for
approximately ten 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 acknowledged that both men had raised their voices and used profanity.
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.
According 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
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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 profanity.
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
speaking 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
disrespecting 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
condiment bar, fixed his coffee and then left the facility.
In contrast to the testimony of the General Counsel’s witnesses who assert that Agins
then sat at the table with them until they left some ten 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 understand.” 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 beginning of the week, and usually
people are on their laptops, 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?
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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 customer 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 ordinary 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
General 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 hand-written 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 prepared 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 hearsay.
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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 register, where they talked for a few
minutes. A customer arrived 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 talking, 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 became 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 remember 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
extremely 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 customers
who are disturbed.” Joe’s friends stepped in to try to pull him back physically, but he was
resisted them.
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 disruption, 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 approximately 10 more minutes and then
left. 45

44 I note that Smith testified that Wilk had requested, and was provided 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.
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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 incident 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. Warner
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 Montalbano
to act as his witness, but his request was denied. Montalbano 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. 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.” According 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,
_________________________
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.
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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 Action Notice (PAN)
memorandum to document his termination. Warner indicated that Agins would be ineligible for
rehire for the following reasons: “Partner was insubordinate and threatened 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, 245 NLRB 814 (1979), his conduct was not sufficiently egregious to lose
the protection of the Act. Alternatively, 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 conduct protected by the Act, it has met its it has met its burden under Wright Line of
demonstrating that it would have discharged 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
sufficiently egregious to remove it from the protection of the Act. Noble Metal Processing, Inc.,
346 NLRB 795 (2006) quoting Sanford Hotel, 344 NLRB 558 (2005). The Board has
acknowledged 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 disrespectful comments
toward a supervisor while engaging in otherwise 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 employee 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 Felix Industries, Inc., 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 support Montalbano in his federally-protected
right to wear a Union button at work. Three days earlier, the NLRB Regional Office had issued a

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.
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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, protected 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 comments toward Agins’ father during the company’s bottled water
promotion, and argues that such comments were of a personal 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 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
question, and the reliability of other evidence proffered by the Respondent. I find that certain of
General Counsel’s witnesses, in particular Malchi and Montalbano, were shading their testimony
in an apparent attempt to protect Agins, particularly insofar 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 respect to certain details. I find, however, that
these inconsistencies would be characteristic of witnesses testifying truthfully, from their best

48 Compare Scooba Manufacturing Co., 258 NLRB 147, 149 (1981), enf. denied 694 F.2d 82 (5th Cir.
1982)(per curiam) cert. denied, 466 U.S. 926 (1984). In Scooba Manufacturing, 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 employee’s work performance and absenteeism.
Before leaving the supervisor’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 Section 8(a)(1) of the Act. The Fifth Circuit denied
enforcement of the order, concluding that the employee’s conduct was not concerted because the
employee was not acting on behalf of her fellow employees and because she had never discussed
unionization with her coworkers. The court concluded that her remark was “the product of a purely
personal dispute.” 684 F. 2 82, 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 Manufacturing. In that case there was neither a history of collective
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.
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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’ testimony, 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 offered 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 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 approached
Yablon to and told him to “leave it alone,” he finished preparing his coffee and left the facility. I
find that James subsequently came over to admonish Agins, but he remained seated with the
group, and did not use profanity or make threatening gestures toward James. I further find that
Agins and the others remained in the store for a period of some ten 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 purports to describe Agins’ misconduct, and,
for the reasons discussed 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 Respondent 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 demonstrated an inability to
maintain his composure while working. 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 customer. Agins’ voice became so loud
that others in the store turned their heads to see what was happening. On more than

49 As noted above, Agins’ pre-trial 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, 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.
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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 performance 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
performance. 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 performance evaluation, employees
are rated in the following area: “Composure – Remains calm, maintains perspective and
responds in a professional manner when faced with tough situations.” There is no evidence that
Agins received unfavorable ratings in any of these areas. Nor was there any prior
documentation 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 conclude, therefore, that Respondent’s post-hoc characterization of
Agins’ interpersonal difficulties as reflected in his work performance 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 introduced into evidence by
Respondent which purports to describe Agins’ alleged misconduct on November 21. As noted
above, James’ initial incident report was never placed into evidence 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 perspective by an unknown author.
Although I give the contents of this document no weight as regards its description of Agins’
misconduct, I find that its creation and maintenance by the Respondent 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 statement 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 believe would have been included in any
original account of events. Moreover, the December 5 statement fails to corroborate James’
testimony regarding Agins’ conduct as he attempted to follow Yablon to the door, testimony
which Respondent cites extensively in its brief and relies heavily upon.52 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 doubtful that the diminutive James

51 As is discussed below, employees are evaluated every six 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).
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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, corresponds 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 two 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 Respondent’s account of Agins’
purported misconduct and find it to be overstated.
As the General Counsel’s witnesses testified, and Respondent has admitted, after
Yablon left, the group continued to sit undisturbed for a period of ten minutes. I find it inherently
improbable that, had Agins continued to be disruptive, insubordinate and profane, as has been
described, his fellow IWW supporters 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 record 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 personnel 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
personnel, 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 Yablon
was admonished or disciplined in any way for his participation 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
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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 conduct 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 engaging 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 “admittedly impulsive and unwise conduct is so severe that it outweighs
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 employer’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 addressed 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
discussion or importune use of profanity to take place there. I nevertheless 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 demonstration in support of employees’
Section 7 rights, and was initiated by Yablon’s apparent reaction to this concerted, protected
conduct. I also note that the earlier insult also stemmed from protected conduct. On whole, I do
not find the fact that some personal comments were made is sufficient to counterbalance the
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
disruptive conduct which included some use of profanity. However, 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 conduct or otherwise
inappropriate references, usually directed toward a superior. See The Tampa Tribune, supra,
slip op. at 3, fn. 17 (and cases cited therein).

53 The Tampa Tribune, 351 NLRB No. 96, slip op. at 3 (2007).
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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 misconduct was sufficient to cause him to lose the protections of the Act. In that
instance, however, the employee’s actions involved certain factors not present in the instant
case. In particular, 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 excused as an
emotional outburst provoked by the respondent’s reaction to his protected conduct. Here, by
contrast, the evidence shows that Agins was goaded, at least initially,54 and that his outburst
was relatively brief. Moreover, there is record evidence that other employees of Respondent
have used profanity, racial or ethnic slurs or other inappropriate language in a variety of
circumstances and that, at times, they have been dealt with less harshly.55 Thus, while I do not
condone Agins’ conduct 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 complaint allegations were eventually settled with
a non-admission clause, however, and no specific finding of unfair labor practices can be found.
Moreover, Yablon’s comments to Agins, while provocative in the colloquial sense, have not
been alleged to be unlawful.

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 numerous 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 Respondent’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, egregious 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 employee 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
employees were terminated only after repeated incidents of inappropriate behavior, 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 including: (1) time and attendance infractions; (2) cash-handling infractions; (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 following 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.
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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 example, in Network Dynamics Cabling, 351 NLRB No. 98, slip op. at 7, (2007), the
Board held that an employee’s outburst, which occurred in the context of protected conduct,
was provoked by certain comments made by a supervisor. Although these comments were not
alleged as an unfair labor practice, the Board found that the element of provocation existed
because the supervisor’s comments clearly sought to interfere with the employee’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 alleged as an unfair labor practice, was held to weigh in favor of protection.
However, in The Tampa Tribune, supra, the Board, citing 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 retaining the Act’s protection. 56
Here, I conclude that the absence of a finding of legally proscribed conduct does not
weigh against continued protection. The employees’ protected conduct was initiated to protest
employer rules that were, at the time, subject to outstanding allegations 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 Wireless, 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 finding of “provocation,” I find that the overall
context of the discussion creates mitigating factors which would lead me to conclude that this
factor weighs only slightly against continued protection under the Act.
In sum, I find that while the first factor weighs against continued protection under the Act,
this is counterbalanced by both the subject matter of the discussion, which implicates core
Section 7 rights as well as nature of the outburst which, while certainly 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 concerted 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 argues 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. General Counsel therefore
urges, in the alternative, that an analysis be conducted under Wright Line. Respondent, too,

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.
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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 surrounding 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 Starbucks management. I note that Respondent’s avowed contention
that Respondent was unaware of Agins’ union support until some time after the May 14 incident
is contradicted by the record evidence. Agins was pinpointed as a likely Union supporter almost
one month prior to that date, as described above.
Respondent’s motive is further called into question by varying, and at times contradictory
testimony regarding the responsibility for the decision to discharge Agins. The record fails to
support Respondent’s assertions that the decision to discharge 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 regard, I give no weight to Respondent’s
attempt to adduce hearsay testimony through Smith regarding what Warner may have meant by
such comments. 57
Moreover, the inference that antiunion animus was motivating 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 composure and emotional outbursts
from early on in his employment.” As has been discussed above, there is no probative evidence
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 contrary. 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 one 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

57 According to Wilk, the notation at issue was brought to her attention 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.
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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 reason 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 occasions 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 discharge, and I have found that such conduct retained the
protections of the Act, it is a foregone conclusion that Respondent cannot carry its burden of
proving that the discharge was for neutral non-discriminatory 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 Respondent’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 Respondent, 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 during the summer of 2005. It
is undisputed that she was an open Union supporter, one of the initiators of the public
announcement 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 demonstration.
Approximately 15 members and supporters of the Union congregated outside the store that
evening. Among others, this group included Saenz, Gross, Fostrum, Bender and Montalbano.
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 General Counsel and Respondent.

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.”
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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
overheard 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 chanting, 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 conversation with McDermet. Schroeder told McDermet that he
operated 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 preparing 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 individuals, including Saenz,
Fostrum and Schroeder, began following him.61 Saenz testified that Fostrum was the closest to
McDermet, about four 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.” According to the testimony of General Counsel’s witnesses, this comment was made
by a stranger who had joined the demonstration 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 report 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 continued 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 Dan Lewis, who did not testify herein. When McDermet reached

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 five feet.
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Madison Avenue he turned left and proceeded toward 28th Street. At that time, Saenz was still
part of the group following 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 followed, 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 conversation. McDermet, who recognized Schroeder from their discussion
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 attempted 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 transpired 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 following 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’s role in those occurrences. According to Wilk, P&AP
manager Steven Bova conducted an investigation which included speaking with Lewis and DM
Tracey Bryant, who had been present in the store on that evening. None of these individuals
testified herein and no report of the company’s investigation was placed into evidence.
DM Veronica Park testified that it was brought to her attention 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 interviewed to ascertain whether her account corresponded with McDermet’s and; if so, Wilk
recommended that Saenz be terminated 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 the rally in question, to which Saenz answered in the
affirmative. 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 situation
and Saenz conceded that there were a lot of people chanting and he may have felt that way.

63 According to Respondent, this was the first opportunity they had to meet with Saenz, as she had
not reported for work for several scheduled shifts in the interim. Saenz, when asked about this, testified
that she had been ill and had tried to call in but could not get through. In any event, Respondent does not
contend that Saenz’s failure to report to work or call in was a factor in her discharge.
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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 someone 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’s 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 separated Saenz’s 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 following McDermet as he left the facility or how far she may have
gone while following him. On cross-examination, Park admitted 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 engaged in protected,
concerted activity and union activity during picket line conduct. General Counsel argues that the
circumstances of Saenz’s 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 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 employee 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’s conduct was not protected 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.

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 Section 8(a)(1) of the Act. The test for
determining 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); enf’d 760 F.2d 1006 (9th
circuit 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 occasion 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
(3rd Cir. 1977), i.e., “whether the misconduct is such that, under the circumstances existing, it may
reasonably tend to coerce or intimidate employees in the exercise of the rights protected under the Act.”
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It is undisputed that Saenz was discharged because of her conduct on October 26. This
took place during a rally conducted 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’s 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 disrespectful and threatening conduct toward a regional vice
president 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 sidewalk. Moreover, there is no evidence that any on-duty employees 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 demonstrators, none of whom were working at the time either.
Accordingly, I find that the first factor, the place of the alleged misconduct, weighs in favor of
protection.
The second factor, the subject matter of the discussion, similarly 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 outgrowth 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 the
fact that Saenz was part of group that followed McDermet down the street calling out comments
which Respondent characterizes 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 comments 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 testimony 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, individually, she did follow him for more than one city block. Although it
is entirely understandable that McDermet may well have found the situation to be intimidating,
on balance I do not find, however, that Saenz’s 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 follow 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.
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While it appears that Saenz did address McDermet in a disrespectful manner,
Respondent points to no situation where such impertinence has been found sufficient to remove
an employee 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 outburst” militates in favor of continued
protection for Saenz.
As regards the fourth factor, whether the outburst was provoked 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’s 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
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 Respondent unlawfully issued negative performance evaluations on
January 29, April 14, April 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 unlawful 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 discussed below.
a. Respondent’s Process for Evaluating Employees
Generally, employees are evaluated every six months and are rated on a scale of 1 (“NI”
or Needs Improvement), 2 (“ME” or Meets Expectations) or 3(“CE” or Consistently Exceeds
Expectations) in a number of designated areas which are, in turn, aggregated into one of two

66 Similarly, under the Wright Line analysis urged by Respondent, I would find that a violation of the
Act has occurred. The General Counsel has established the requisite elements of Union activity and
knowledge. 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’s
disrespectful comments and tone of voice as a pretext to discharge her because in this instance, the
personnel records offered into evidence clearly demonstrate numerous examples of disparate treatment.
That is: Respondent 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 non-discriminatory reason for its decision
to discharge Saenz, I would find that it had failed to meet its burden of proof in this regard.
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sections. Section A is entitled “Key Responsibilities”67 and Section B is lists attributes called
“Starbucks Core Competencies.” Each numerical grade may be accompanied by a narrative
description. The scores for each section 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%
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 ten areas designated as “Key Responsibilities” as follows:
Delivers legendary customer service to all customers by acting with a “customer comes
first” attitude and connecting 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 promote the culture, values and mission
of Starbucks. Maintains a calm exterior presence during periods of high volume or
unusual events to maintain a clean and comfortable store environment.
Anticipates customer and store needs by constantly evaluating environment and
customers for cues. Communicates 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 accomplishments by using existing
organizational methods.
Contributes to positive team environment by recognizing alarms or changes in partner
morale and communicating them to the management team.
Assists with new partner training by positively reinforcing successful performance and
giving respectful and encouraging coaching as needed.
Maintains regular and consistent attendance and punctuality.
In addition, there are eight enumerated Starbucks Core Competencies, as follows:

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.
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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 priorities.
6. Decision Making – Makes timely and quality decisions 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 accomplishment and identifies certain “performance improvement
opportunities,” these being, “setting personal goals for continued growth” and “increase bean
knowledge.” At that time, the manager administering the review was Beth Jamison, an individual
who does not appear to have a role in any other decisions 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
average rating in terms of Key Responsibilities a 2.75 rating in Starbucks Core Competencies.
For the review period, Gross’ overall rating was evaluated as a 3 (or consistently exceeds
expectations). 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: “pursuing
further knowledge of Starbucks culture and product (i.e. community involvement, coffee
knowledge (coffee master?))” and “communication with new management.” In its brief,
Respondent points to other narrative comments made by Cannon made in conjunction with
Gross’ scores in the Key Responsibilities 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 opportunity 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
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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 organizational 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.”
Cannon’s comments in other areas of the review are not fully legible, 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 knowledge and tenure which allows
him to assist others when they are unsure.” Cannon identified Gross’ performance improvement
opportunities to include, “further[ing] his coffee knowledge 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 six months, Gross limited his availability
to five days per week. In August 2004, Gross began attending law school and further limited his
availability to two days per week, Saturday and Sunday, between the hours of 12:00 p.m. and
6:00 p.m. Between May 2005 and January 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 Respondent was readily able to establish that during the eight-
month period 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 seeing 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 approved 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
adduced regarding other employee work schedules in an attempt to show that Gross was
treated disparately from other employees. Respondent, conversely, relied upon evidence to
show that Gross worked less during the relevant period than any other employee.
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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
record reflects that there are any number of employees who juggle work with other
responsibilities requiring flexible schedules. General Counsel points to Monica Thompson, who
worked at the same store as did Gross, and was a full time student. 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 evaluation),
Thompson worked 98 shifts compared to Gross’ six.
General Counsel additionally points to employee Jenny Robateau’s testimony that she
was permitted to go off the schedule at 36th and Madison during three 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 one month. General 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 arrangement 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 employee 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
announcement and associated leafleting at the Union Square East store. As has been
described above, Gross was prominently involved in that series of events. 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 unfavorably with that offered by Wal-Mart. In January 2006,

69 This policy states that, “Partners may be expected to make themselves available for wok for a
minimum number of days or hours per week, depending upon the store’s need. The inability or failure to
increase one’s availability to work may result in separation of employment.”
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 one 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 one day per
week. Malchi began working one additional shift per week, but found that his schedule could not
accommodate it. He told him manager that he could not manage the schedule, and he was told that he
could not work only one shift per week. Malchi then decided to resign his position with Starbucks.
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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 press releases, through their own
press releases and communications to employees.
f. Gross’ January 2006 Performance Review
Under Starbucks policy, Gross should have received his next review on or about
November 27, 2005, six 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 administering 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 promote 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
administration of the performance review. According to Gross, Cannon 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 review. 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 nine 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 performance: “Dan does not maintain adequate hours of availability.
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 Cannon 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

71 These are: water, grinds, proportion and freshness.
72 The review had an effective date of November 27, 2005
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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: however, his availability remained unchanged from what it had been
before.
Other narrative comments relating to those Key Responsibilities in which Gross’
performance was deemed to need improvement include the following: “Dan does not display
behaviors 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 Integrity – Adheres to Starbucks values, beliefs and principles
during 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 opportunity to work with new partners and products.”
Gross received ratings of “2” or “ME” in the areas of: deliver[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 modified across the board.
Cannon filled out a PAN, electronically recording Gross’ “needs improvement” rating,
stating: “Dan did not work frequently enough to warrant a high score. We are hoping that with an
increase of shifts that [Gross] works over the next review period that we can help him bring up
his scores by exposing him to promos and partners.”
The only evidence adduced by the General Counsel regarding any change or lack of
change in Gross’ work performance during the period encompassed by the evaluation was as
follows:
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 demeanor.
A: No, they didn’t mention anything about that.
Q: Other than what it says here, did any of the managers . . . explain to you what they
meant by you didn’t display a positive attitude.
A: No they did not.
Q: With respect to your demeanor and how you handled yourself in the store during
times of high volume, did you change in any way, shape or form between May ’05 and
January ’06.
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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, punctuality,” other than what it says on the document and other
that what you’ve already testified to about the two meetings, 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 anticipate 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 recognize coworkers, training new hires and
communicating partner 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. Respondent presented no evidence that
it made any effort to contact 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 Cannon ten 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 one year after Gross announced his support for the

73 Of course, General Counsel’s questions regarding punctuality, time and attendance fail to
acknowledge that Gross worked only minimal hours during this period.
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Union 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 actually undermines an inference of animus.
Respondent further contends that several of the areas identified 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. According to Respondent, this fact alone justifies Gross’ overall ratings.
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
received 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, General Counsel relies heavily on comments
regarding Gross’ failure to “display behaviors that would indicate a positive attitude about
Starbucks to partners and customers. “ General Counsel notes that that was the first occasion
where Gross had received any written remarks about his attitude. General Counsel additionally
points to the absence of favorable comments regarding Gross’ ability to remain calm and
steadfast during periods of high volume, which had earned him ratings of 2 or 3 in the past.74
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 behalf 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 Respondent. 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 General Counsel that Respondent’s comments about Gross’
attitude, absent any specific explanation by Respondent, constitute some evidence of an
unlawful motive.
The Board has repeatedly held that a reference to an employee’s “attitude” can be
found, in the appropriate context, to constitute evidence of unlawful motivation. See e.g.
Climatrol, 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 attitude, 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 regard, Respondent points to Gross’ admission that

74 I note, however, that under Starbucks Core Competencies, Gross received a “2” in this area.
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having a “good attitude” is a skill relevant and important to the job duties of a barista. As
Respondent notes, the record contains evidence 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 expectations
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, unexplained reference to Gross’ failure to evince a positive
attitude is, in fact, a veiled reference to his Union activities, and evidence of animus. I draw a
similar conclusion from Respondent’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 during 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 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 evidence from the Respondent. In any
event, even if I were to conclude that the General Counsel had failed to adduce sufficient
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

75 While I do not draw an adverse inference from Respondent’s failure 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.
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adduced substantial evidence of unlawful motivation with regard to Gross, relating to later
performance evaluations and his eventual discharge.
g. Change of Management at the 36th Street Store
In March 2006, Cannon was transferred and Jose Lopez became 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. Lopez acknowledged that Cannon told him that Gross
was “involved” 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
operations. According to Lopez, Cannon told him that Gross had put the wrong beans in the
coffee bin, so that customers ordering 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 introduced 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
insubordination. Absent such lack of corroboration, I do not credit Lopez’s hearsay testimony
regarding these prior alleged acts of misconduct.
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 testified, 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 Hicanpie, 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 meeting without a witness. Gross then went outside to confer with
Hincapie and returned shortly thereafter.
Upon his return, Cannon and Lopez went through a performance evaluation which had
been prepared with an effective date of 11/27/05. Cannon read through various categories.
Under both Key Responsibilities and Starbucks Core Competencies, 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 Improvement” 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 partners and customers;
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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 organizational 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 respect 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, belief’s (sic) and principles during
both good and bad times.
Personal Learning – Takes personal responsibility for the continuous learning of new
knowledge, skills and experiences.
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 overtaxed at the bar, or underpaid,
would that be the kind of thing Gross would have to communicate in order to receive a favorable
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 Starbucks
values. There was no response to this inquiry.
Gross stated that the document was inaccurate and clearly discriminatory and that the
company would have two 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 4/3/06. 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 unrebutted. The additional material is as follows:
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Additional Comments Section B –Core Competencies
Dan has demonstrated ineffective decision making. He has chose to not act in a manner
conducive to personal development by not proactively taking part in activities that would
increase his performance level. He has not acted on feedback provided regarding
recognition of fellow partners, 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 scheduled). It is still recommended that Dan
widen his availability 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
development. (Italics 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
review. Respondent argues that this was not an adverse employment 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 adverse personnel action, the
General Counsel has failed to establish a nexus between Union animus and the discipline
imposed.
I agree with Respondent that the record does demonstrate instances where employees
have received 90 day interim performance evaluations after receiving a “needs improvement”
review, and do not draw any conclusions from this fact, standing 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 omitted commentary on his performance in particular areas
where he was found to need improvement. If the purpose of the review 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

76 As Gross was not due for the semi-annual review of his performance until July 2006, he would not
have been eligible for a wage increase until that time.
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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 availability; 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
evaluation 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 discriminatory. Saginaw Control &
Engineering, Inc., supra.
i. Lopez’s Log Book
Following the April 14 meeting, Lopez and Gross worked shifts together on April 15, 22
and 23, all prior to Gross receiving 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 evidence, there are various notations dealing with Lopez’s
interactions 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 April 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 superficial. 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 beholder.” 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 regarding our new soliciting policy. He then wrote on the actual 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, Lopez’s log reads as follows:

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.
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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 Lopez’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 two 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 Gross’ work performance. The document states,
in relevant part:
This document will serve as a summary of recent conversations 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 responsibilities and core competencies of your barista position. For instance,
you did not demonstrate initiative in the following areas:
Engaging in legendary, positive interactions with partners 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 exhibiting 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 expectations 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
improvement 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
improvement. . . 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

78 Charles Polanco, an IWW supporter, was employed at the 36th Street store during this period of
time.
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improve in the areas indicated above will result in the termination of your employment
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 questions regarding the
document/review date or areas of opportunity that were listed on the document. He said
no, and at that point the conversation was over (I gave him his copy). I intentionally
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 documented in Lopez’s log for that period of time, Gross displayed
some initial resistance to Lopez’s 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 matter 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 non-work matter. This description of Gross’ conduct fails to
comport in significant 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 promotion 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 perceived 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 reflected in the Update.
As such, I conclude that the Update is pretextual and, accordingly, constitutes
persuasive evidence of Respondent’s unlawful 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.
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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 arrive. 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 mentioned the cash reward
to him and other partners in a group 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 approached 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 instructed 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’s 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

79 Inasmuch as Gross had received a “NI” rating on his last performance review, he would have been
ineligible to receive this cash award. The General Counsel has suggested that Lopez was deliberately
attempting to provoke Gross by this comment.
80 According to Gross, Lopez also complained that when Gross entered 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.
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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 its his responsibility to address that. After some initial
evasiveness, 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 mentioned to him that these actions weren’t creating a
work environment (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 employees (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 non-working 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 Section 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 union solicitations do not lose their protected status simply because 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 persistent and repeated union
solicitations do not constitute harassment 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
related) 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.
m. The Allegedly Unlawful Discharge of Gross
(1) Evidence Adduced by Respondent Regarding Gross’ Work Performance
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ASM Tiffany Scott had worked with Gross on several occasions between May and
August 2006. According to Scott, Saturdays 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
performed 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 several 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 products. 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 issue 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 adduced 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,
General Counsel asserts, Robateau is the recipient of favored treatment by Respondent, which
would tend to color her testimony. During her cross-examination Robateau additionally
acknowledged that employees are expected to tell a manager 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 minutes 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 period 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
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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 tasting.
Respondent also relies upon the undisputed fact that Gross failed to open up his
availability beyond Saturdays and Sundays. 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 15th 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
investigation, 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 demonstrators that they were
required to have a permit for the type of picket sign they were carrying. The demonstration
disbanded. 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.”
Marx reported Gross’ comments to Wilk, who met and obtained 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 statement 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 “Consent 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 document, and Stella read it to him. Then Stella

81 Respondent acknowledges that Lopez granted Gross’ requests for time off, and asserts that this is
consistent with how it treats other partners.
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 prepared 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.
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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 allegation 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 interrogated Gross on this
occasion. In assessing whether an unlawful 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.” Rossmore 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 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
activities. Accordingly, under all the circumstances, I do not conclude 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

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.
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Lopez, Grzegorczyk and Partner Resources Manager Varino met with Gross during his
next scheduled shift, August 5. Lopez informed Gross that Respondent had completed his
investigation 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 saying repeatedly, ‘It would be very bad for you to fire Evan’”
The corrective action cited Gross for a “clear violation of our guiding 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
subject 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
accompanying the protest concerned themselves with this issue or support for the IWW
generally. Gross’ comments to Marx pertained 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
sufficiently 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.
Nevertheless, 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 “retaliation” 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
therefore not sustained over any significant period of time. Accepting as the truth the fact that
Gross pointed his finger at Marx, I find that insufficient to establish that his conduct was of a
character which would render it unprotected. I find, therefore, that the third Atlantic Steel factor
militates toward continued protection. 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 performance review. Its effective
date is August 5, 2006. Gross received an aggregate score of 1.4 under Key Responsibilities
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(receiving six scores of “1”) and an overall rating of 1 in Starbucks 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 environment or say anything positive about the culture, values and mission
of Starbucks either to customers or fellow partners.
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 experience for customers or his
fellow partners. He has not taken a proactive approach to create the “Third Place
Environment” by communicating issues to his management team (i.e. blown light bulbs,
music volume, inventory/small wares needs etc.)
Dan does not utilize our existing organizational methods to recognize any partners (i.e.
Green Apron cards, MUG awards, star skills, etc.)
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 experience 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 January 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 attendance 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); Decision-Making (1); Interpersonal Savvy (1); Results Oriented (2).
The evaluation additionally contained the following corresponding “Comments on Core
Competencies:”
1. Dan is generally polite to customers but he does not seek ways to provide legendary
service and exceed all customers’ expectations.

86 Gross’s average score for this component of the evaluation was actually 1.25, but his score was
rounded down to the nearest whole integer.
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2. Dan does not demonstrate commitment to Starbucks values, beliefs and principles. Dan
has also received a corrective 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 recommending 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 personal 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 recognizing 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 received a
corrective 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
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 figuring out the processes necessary to
getting things done. He does not, however, display leadership in coaching or mentoring
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 discharged. 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 Grzegorczyk, who had left the decision
entirely up to him. According to Lopez, the termination decision was based upon “all
performance.” The factors which entered into this determination included Gross’ failure to come
in both days on the weekend; 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 undermine him.
Wilk similarly testified that Lopez made the decision to fire Gross. However, under
questioning from Counsel for the General 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 administration 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 discharge Gross, and she was
uncertain whether Lopez had attended both. Wilk testified that when she saw the final
performance 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 meetings described above, Wilk
testified that she spoke with other company personnel including McDermet and company legal
counsel to keep them apprised of developments.
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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 improbable that such a decision would have been entrusted to a store
manager with less than four months experience directly supervising 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 numerous 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 determination 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 question. Acknowledging this,
Respondent makes several arguments 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

87 In support of this assertion, Respondent relies upon Wegman’s Food Markets, Inc., 351 NLRB No.
61, slip op. at 6 (Nov. 29, 2007) and Allied Mechanical Services, Inc., 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 conduct 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 inapposite 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.
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Respondent argues that there is no evidence of Lopez harbored any animus toward
Gross for his Union activities. In particular, 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 that most employees who receive “needs improvement” performance ratings separate
their employment before the end of the next six-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
partners, 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 participation in multiple large-scale
protests and “actions” against the company in 2004 and 2005, for which he received no
discipline. 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.
Respondent has a point here, however the General Counsel convincingly argues that there was
a particular escalation of Union activity 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, moreover, supports the General Counsel’s theory of the case.
As I have noted above, I do not credit the testimony of Respondent’s witnesses that it
was Lopez who, singlehandedly, made the decision to discharge Gross. Moreover, even if I
were to credit such an assertion, I find that the evidence does establish that Lopez harbored
animus toward Gross’ protected conduct. 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 environment. 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 individually.
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 preponderance of credible
evidence, that it would have discharged Gross notwithstanding his Union and other concerted
protected conduct. Wright Line, supra. Respondent makes a number of arguments in this
regard.
Respondent contends that due to Gross’ lack of availability and overall performance it
would have discharged him regardless 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 essentially unrebutted by the General
Counsel. Indeed, it may be fair to say that the picture that emerges of Gross’ work performance,
in general, is one of an employee who worked infrequently, whose primary goal was to organize
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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
performance evaluations reflect that his drink preparation and customer service skills were
deemed adequate in every circumstance. 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 address 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 expectations” rating notwithstanding
the fact that his availability had not changed. It is also the case that Respondent’s
recommendation, as set forth in the April 14 review, that Gross increase his availability, was
never presented to him. Thus, there is no evidence that Gross was ever informed that he had to
increase his availability to receive a favorable performance review. Moreover, 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,
Respondent relies upon the testimony offered by Scott and Robateau, which has been
described above. In this regard, relying upon Fredon Corp., 323 NLRB 564, 569, 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 invitation to engage in
concerted activity for the invitation to be protected. Whittaker Corp., 289 NLRB 933, 934
(1988). Moreover, 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
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further conclude that such brief conversations, absent evidence of workplace distraction, are
protected conduct. Waste Management 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 discharge 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 motive.
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, according 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
Responsibility” 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 appears 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
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 performance 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 disagree with Respondent that this performance evaluation demonstrates a
neutral, non-discriminatory basis for Gross’ discharge. 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 specific guidelines in this regard,
and routinely approved his requests 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 demonstrates 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 conclude that by discharging Gross,
Respondent has violated Section 8(a)(1) and (3) of the Act.

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.
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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, Respondent 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 non-work nature, including materials relating to
the Union.

(c) Prohibiting off-duty employees employed at Respondent’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 pro-Union button at any given time.
(e) Promulgating and maintaining a rule prohibiting employees from talking about the
Union while allowing other nonwork-related discussions.
(f) Promulgating and maintaining a rule prohibiting employees from talking about terms
and conditions of employment.
4. By the following acts and conduct, Respondent has violated 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 allowing 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,
April 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 unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate 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 expunge from its files
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any unlawful discipline issued to or reference to such discipline issued to Tomer Malchi or
performance evaluations or discipline issued to Daniel Gross as is consistent with my findings
herein, notify these employees that it has done so and that it will not rely upon these warnings
or other disciplinary memoranda. 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 supplemental
compliance proceeding, if necessary.
Having found that Respondent has discriminatorily discharged employees, I recommend
that it offer them reinstatement 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 Retarded, 283 NLRB 1173
(1987). The Respondent shall remove from its files of these employees any reference to their
discharges 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 described 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 Coffee Company, its officers,
agents, successors, and assigns, shall
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 non-work nature, including materials relating to
the Union.

(c) Prohibiting off-duty employees employed at Respondent’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 pro-Union button at any given time.
(e) Promulgating and maintaining a rule prohibiting employees from talking about the
Union while allowing other nonwork-related discussions.
(f) Promulgating and maintaining a rule prohibiting employees from talking about terms
and conditions of employment.

89 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
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(g) Disciplining employees pursuant to an unlawful rule prohibiting employees from
talking about the Union while allowing 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 because 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 effectuate 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 talking
about the Union while allowing other nonwork-related discussions, 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, April 29 and August 5, 2006 and a
corrective action issued to him on August 5, 2006, within 3 days notify 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 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 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.
(d) Within 14 days from the date of the Board’s Order, remove 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 additional 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 records, 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.
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(f) Within 14 days after service by the Region, post at its facilities 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 conspicuous 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 employees 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 insofar as it alleges
violations of the Act not specifically found herein.
Dated, Washington, D.C., December 19, 2008.
____________________
Mindy E. Landow
Administrative Law Judge

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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(NY)–46–08
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 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 benefit 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 bulletin board to post material of a non-work nature, including 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 or enforce a rule prohibiting you from wearing more than one pro-
Union button at any given time.
WE WILL NOT prohibit you from discussing the Union while allowing other non-work related
discussions.
WE WILL NOT prohibit you from talking about terms and conditions of employment with your
coworkers.
WE WILL NOT discipline you for talking about the Union while allowing other non-work 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, restrain or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
JD(NY)–46–08
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,
April 29 and August 5, 2006 and a corrective action issued to him on August 5, 2006, WE WILL
within three days thereafter notify Gross in writing that this has been done and that the
employment evaluations and discipline 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 enjoyed.
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 Joseph Agins, Jr., Isis Saenz and Daniel Gross and 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
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.