372 NLRB No. 93
Starbucks Corporation
372 NLRB No. 93
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Starbucks Corporation and Workers United affiliated
with Service Employees International Union.
Cases 19–CA–289275 and 19–CA–289771
June 20, 2023
DECISION AND ORDER
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN
AND WILCOX
On November 3, 2022, Administrative Law Judge John
T. Giannopoulos issued the attached decision.1 The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party each filed an an-
swering brief.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,3 and conclusions4 and to
adopt the recommended Order.
1 During the hearing, a witness testified to using they/them pronouns
as their personal pronouns. The judge’s decision referred to this witness
using a different set of personal pronouns. It is the Board’s practice to
refer to individuals by the personal pronouns that they indicate they use.
We have therefore corrected this in the judge’s decision.
2 The General Counsel’s answering brief requests that the Board “ad-
monish or otherwise sanction” the Respondent and its counsel for attor-
ney misconduct. Under Sec. 102.177(b) of the Board’s Rules and Reg-
ulations, the Board “has the authority in the proceeding in which the mis-
conduct occurred to admonish or reprimand, after due notice, any person
who engages in misconduct at a hearing,” notwithstanding the separate
disciplinary procedure established under Sec. 102.177(e). Other sanc-
tions, however, require that an allegation of attorney misconduct be filed
with the Division of Operations-Management, which will investigate and
decide whether to institute disciplinary proceedings. See McAllister
Towing & Transportation Co., 341 NLRB 394, 398 fn. 7 (2004), enfd.
156 F. App’x 386 (2d Cir. 2005). We decline to admonish the Respond-
ent or its counsel, or to refer this matter to the Division of Operations-
Management sua sponte.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
4 Employee Rachel Ybarra distributed union buttons in public areas
on two separate instances: in the first instance, while working, Ybarra
gave buttons to a customer who had solicited them; in the second in-
stance, Ybarra gave a bag of buttons to a Starbucks employee while they
were taking their paid break in a customer area. Having observed both
distributions, Store Manager Pam Mariscal spoke with Ybarra and said
that they were not allowed to distribute while on the clock but were
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Starbucks Corporation, Seattle,
Washington, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Dated, Washington, D.C. June 20, 2023
______________________________________
Lauren McFerran,
Chairman
______________________________________
Marvin E. Kaplan,
Member
______________________________________
Gwynne A. Wilcox,
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
welcome to do so outside of company property during their time off. In
response, Ybarra pointed out that the second distribution occurred during
their 10-minute break. Mariscal replied by telling Ybarra, “that is still
considered a company paid-time, so it is not something you should be
doing while on the clock.” The judge concluded that Mariscal’s state-
ments, taken together, violated Sec. 8(a)(1) by prohibiting all union dis-
tribution during paid break periods. In adopting this finding, we empha-
size that an employee would have reasonably understood the prohibition
to improperly extend beyond the selling floor to the entire store, includ-
ing nonpublic areas, like the backroom. See, e.g., Sam’s Club, 349
NLRB 1007, 1009 fn. 11 (2007).
Unlike his colleagues, Member Kaplan would not find that Mariscal’s
initial statement violated the Act. Member Kaplan does not believe that
a reasonable employee would interpret Mariscal’s statement, in the con-
text of Ybarra’s distribution having occurred in a customer area, as es-
tablishing that employees who are off duty could not distribute buttons
in nonwork areas. Member Kaplan also notes that Mariscal correctly
informed Ybarra that they were welcome to engage in union distribution
outside of the store during nonwork hours. Member Kaplan does, how-
ever, agree with his colleagues that Mariscal’s later statement reiterating
that Ybarra’s paid break period was “company time” and that they were
“on the clock” violated the Act. Member Kaplan believes that this state-
ment—in context—would be reasonably understood as a general prohi-
bition against engaging in protected concerted activity during paid break
time, therefore infringing on Ybarra’s Sec. 7 rights.
In addition, we agree with the judge for the reasons he states that the
Respondent violated Sec. 8(a)(1) by telling Ybarra that they must secure
coverage for their shift before testifying pursuant to a Board subpoena
and by threatening to discipline Ybarra if they testified prior to securing
coverage for their shift. Member Kaplan notes that the Respondent pre-
sented no evidence to contradict Ybarra’s credited testimony that estab-
lished these violations.
2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alice J. Garfield, Esq. and Sarah M. McBride, Esq. for the Gen-
eral Counsel.
Marina Multhaup, Esq. (Barnard Iglitzin & Lavitt, LLP), for the
Charging Party.
Renea I. Saade, Esq. Breanne Lynch, Esq. (Littler Mendelson
PC) for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This
case was tried before me on September 13 and 14, 2022, in Se-
attle, Washington.1 After charges were filed by Workers United,
affiliated with the Service Employees International Union (Un-
ion), on August 10, an Order Consolidating Cases, Consolidated
Complaint and Notice of Hearing (Complaint) issued alleging
that Starbucks Corporation (Starbucks or Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the Act).
The unfair labor practice allegations are premised upon state-
ments made by two different Starbucks store managers during an
organizing drive that was occurring at one specific store in Seat-
tle, Washington. Respondent denies the unfair labor practice al-
legations.
Based upon the entire record, including my observation of wit-
ness demeanor, and after considering the briefs filed by the Gen-
eral Counsel, the Union, and Respondent, I make the following
findings of fact and conclusions of law.2
I. JURISDICTION AND LABOR ORGANIZATION
Starbucks is a Washington corporation with a principal place
of business in Seattle, Washington. Roh v. Starbucks Corp., 881
F.3d 969, 972 (7th Cir. 2018). The company is a “prominent
global purveyor of specialty coffee and coffee products” with
thousands of retail locations worldwide. Starbucks Corp. v.
Wolfe’s Borough Coffee, Inc., 736 F.3d 198, 201 (2d Cir. 2013).
In conducting its business operations, Respondent derives annual
gross revenues in excess of $500,000 and it purchases and re-
ceives goods for use within the State of Washington from points
directly outside the state that are valued in excess of $50,000.
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Sections 2(2), (6), and (7) of
the Act. Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
Accordingly, I find that this dispute affects commerce and the
National Labor Relations Board (NLRB or the Board) has
1 All dates are in 2022 unless otherwise noted.
2 Testimony contrary to my findings has been specifically considered
and discredited. Unless otherwise noted, witness demeanor was consid-
ered in making all credibility resolutions.
3 Transcript citations are denoted by “Tr.” with the appropriate page
number. Citations to the General Counsel, Respondent, and Administra-
tive Law Judge exhibits are denoted by “GC,” “R,” and “ALJ” respec-
tively. Transcript and exhibit citations are intended as an aid only. Fac-
tual findings are based upon the entire record and may include parts of
the record that are not specifically cited.
4 I take judicial notice of the record, including the transcripts, in the
underlying representation proceeding in Case 19–RC–287954 (R-Case
Transcript). Kansas City Terminal Elevator Co., 260 NLRB 611, fn. 1
(1982), enfd. 697 F.2d 269, 270 (8th Cir. 1983) (Board takes official
jurisdiction pursuant to Section 10(a) of the Act.
II. FACTS
A. General Background
Respondent operates a retail store in Seattle, Washington lo-
cated at 101 Broadway East, in the Capitol Hill neighborhood of
the city. This store, known as Store #304, is situated at the corner
of the intersection of East Denny Way and Broadway. Pam
Mariscal (Mariscal) is the store manager at Store #304. At the
time of the hearing, she had worked as the manager of this store
for just under three years.3 (Tr. 60–61, 187, 240, 282)
On December 20, 2021, the Union filed a petition to represent
the employees working at Store #304. The next day, the Re-
gional Director for NLRB Region 19 scheduled a video confer-
ence hearing to be held on the Union’s petition starting on
Wednesday, January 12. The hearing lasted four days.4 Because
Starbucks contested the appropriateness of the single-store unit
sought by the Union, the company bore the burden of proof at
the hearing to show that a unit limited to Store #304 employees
was not appropriate. Hilander Foods, 348 NLRB 1200, 1200
(2006) (a single-facility unit is presumptively relevant and the
burden of rebutting this presumption falls on the party arguing in
favor of a multi-facility unit). Starbucks called four witnesses at
the representation hearing including Mariscal, who testified on
January 12 and January 13.5 The company rested its case at the
end of the day on Friday, January 14. Because of the Martin
Luther King Jr. Day holiday, the hearing did not resume again
until 9:00 a.m. on Tuesday, January 18. When the hearing re-
sumed, the Union called two witnesses in support of its position;
one of those witnesses was Rachel Ybarra (Ybarra), a barista
who worked at Store #304. Ybarra started working for Starbucks
in April 2020, spending their first 6 months at various stores in
the Seattle area, before settling at Store #304. (Tr. 122–123; R.
3; ALJ. 4–5)
During the representation proceeding, Store #304 was de-
scribed as a “lobby store,” meaning that it has limited lobby area
seating, as opposed to a “café lobby” store, which has a large
lobby and specific café seating.6 Whatever customer seating that
existed in Store #304 was actually removed from the store in the
Fall of 2021 because of safety concerns.7 Starbucks considered
the lack of customer seating to be temporary, but as of the date
of the representation hearing the company did not have any cur-
rent plans to restore the customer seating in Store #304.8 Ryan
Lawrence (Lawrence), a Starbucks manager, testified that Store
notice of the record in the underlying representation proceeding); Spring
Valley Farms, Inc., 274 NLRB 643, 643 (1985) (administrative law
judge takes judicial notice of the decision and the transcript in the prior
representation proceeding).
5 During her testimony in this matter, Mariscal said that she provided
testimony at the representation proceeding on Thursday, January 13 and
Friday, January 14. (Tr. 284, 295) However, the transcript in Case 19-
RC-287954 shows that she actually testified on January 12 and January
13; she did not testify on January 14. See R-Case Transcript, at 3, 26,
198, 201, 257, 385.
6 R-Case Transcript, at 120, 556.
7 R-Case Transcript, at 366–367, 430–431.
8 R-Case Transcript, at 431, 441–444.
STARBUCKS CORPORATION
3
#304 is “a café where customers would come in, get their bever-
age, and leave.” (Tr. 188)
The layout of Store #304 resembles a large rectangle. Cus-
tomers enter from one corner of the store into an “L” shaped
lobby. The store has a long counter/bar, with patrons standing
on one side of the counter and employees working “the line” on
the other side. The area closest to the lobby is the hand-off sta-
tion, where employees hand drinks off to customers. Next to the
hand-off station is the area where baristas make drinks, known
as the bar. Adjacent to the bar are the cash registers where cus-
tomers place their orders. Directly behind the counter, in the
employee work area and along the wall, are ovens, which are
used to reheat items, and a set of refrigerators. The employee
work area behind the counter is about six feet long. Between the
back wall and the counter is a “little bit” of walking space where
the employees work. (Tr. 273). At the far corner of the em-
ployee work area, along the back wall and around the corner, is
a set of double swinging doors that lead to the back room. The
back room is a shared space used by both employees and man-
agement. It contains additional refrigerators, freezers, a dish-
washing area, various electronic equipment, and a desk for the
store manager. Employees have lockers in the back room to store
their personal belongings and the area contains a small table with
a few chairs; employees place their personal items on the table
and use the chairs to sit down during breaks. The back room also
contains an employee bathroom. (Tr. 76, 132–133, 147, 170,
242, 271–275, 324)
An election was ultimately held for the Store #304 employees
and the tally of ballots issued on March 22. Out of approxi-
mately thirteen eligible voters, ten employees voted. Nine voted
to be represented by the Union, no employee voted against union
representation, and one ballot was challenged.9 On March 30,
the Union was certified as the collective-bargaining representa-
tive of the baristas and shift supervisors employed at Store #304.
(ALJ. 6)
B. Complaint paragraphs 4(a) and 4(b)
Complaint paragraphs 4(a) and 4(b) allege that on or about
January 14, Respondent: (1) threatened employees with disci-
pline if they attended an NLRB hearing pursuant to a subpoena
without first securing coverage for their shift; and (2) and in-
formed employees that a subpoena does not excuse them from
work. These allegations involve statements made to Ybarra re-
garding their subpoena to testify at the NLRB representation pro-
ceeding in January 2022.
1. Ybarra’s subpoena
When Mariscal testified by videoconference at the represen-
tation hearing on January 12 and 13, she did so from a location
known as the Starbucks Seattle support center; she was not at
Store #304. While Mariscal was occupied with the representa-
tion hearing, another store manager named Halley Hagar (Hagar)
covered Mariscal’s management shifts at Store #304. Hagar was
the manager presence at the store in Mariscal’s absence and
9 I take judicial notice of the election date and results. Rockwell Au-
tomation/Dodge, 330 NLRB 547, 547 fn. 4 (2000) (Board takes admin-
istrative notice of the tally of ballots in related representation proceed-
ing).
served as Mariscal’s point of contact for the store over the week-
end. Hagar was a manager at a nearby store known as Olive
Way.10 It is unclear how long Hagar had been a store manager,
but one Starbucks official testified that Hagar was the person he
would think of as the manager of the Olive Way store. (Tr. 65,
110, 221–222, 252–253, 284–285, 293)
The Union subpoenaed Ybarra to testify on its behalf at the
representation hearing. Ybarra’s subpoena is dated December
22, 2021, and calls for them to appear on January 13, at 9:00
a.m., or on any adjourned or rescheduled day, to testify. Not-
withstanding the subpoena’s date, Ybarra did not receive the
subpoena from the Union until January 10; they received it by
email. Because Starbucks did not rest its case until late in the
day on Friday, January 14, the Union did not call any of its wit-
nesses in the representation hearing, including Ybarra, until Jan-
uary 18. Ybarra was the Union’s second and final witness.11 (Tr.
62–63, 134, 180–181; GC. 4, 6)
On January 14, Ybarra was working the morning shift at Store
#304, and Hagar was still covering for Mariscal as the store man-
ager. Ybarra had a conversation with Hagar that day about the
NLRB subpoena they had received. The conversation occurred
behind the counter in the work area, while they were standing
near the ovens. Ybarra said that a coworker named Justin was
also present. (Tr. 65–66, 95, 110, 132–133; R. 2)
According to Ybarra, they had forgotten that Monday, January
17 was a public holiday and believed they needed to take the day
off to testify at the representation hearing. Ybarra discussed the
matter with Justin, and they agreed it would be best to speak with
Hagar for clarification. Ybarra said that they approached Hagar
to let her know that they had received a subpoena and would be
testifying at the NLRB hearing on a day they were scheduled to
work, likely January 17. Ybarra asked Hagar what they needed
to do to make sure it was okay for them to be off work that day
in order to attend the hearing pursuant to the subpoena. In re-
sponse, Ybarra testified Hagar told them that, according to Star-
bucks policy, a subpoena is not a protected reason to miss work
and Ybarra needed to find someone to fill in for their shift in
order to avoid being disciplined. Ybarra said that they acknowl-
edged what Hagar had told them about needing to find coverage,
and the conversation ended. Ybarra understood Hagar’s re-
sponse to mean that, if she attended the hearing without finding
coverage for her shift, they would be disciplined. (Tr. 67–68,
94–95, 134–136, 141–142)
After the conversation, Ybarra wrote a note to themself about
what occurred using a note app on their phone. The note reads
as follows:
1/14–9:45 am I told a support manager covering for Pam that I
would not be able to come to work on Monday, possibly Tues-
day as well in order to be at a hearing. She said–”following
corporate policy a subpoena doesn’t remove your responsibil-
ity to find coverage for a shift.” Corporate policy apparently
requires you to find coverage or show up for the shift, unless
calling out sick.
10 Hagar is an admitted Section 2(11) supervisor. (Tr. 16–17; GC.
1(k))
11 R-Case Transcript, at 547, 604.
4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ybarra said they drafted the note as soon as they could, probably
within an hour of the conversation, either during one of their
breaks, or immediately after work.12 According to Ybarra, they
intended the note to accurately capture what Hagar said reflect-
ing what Ybarra felt, at the time, were the important details of
the conversation. (Tr. 67, 72–73, 135, 139; GC. 5)
In an effort to impeach Ybarra’s testimony about Justin also
being present, while questioning Ybarra, Respondent pointed to
a statement in a February 2022 affidavit Ybarra provided during
the underlying investigation where they said, “I mentioned what
had happened to Justin . . . who was one of the other workers
who was involved in the union organizing campaign.” (Tr. 164).
In response, Ybarra said the sentence in the affidavit was a result
of them trying to over clarify that Justin had an understanding of
what occurred because he was both present during the conversa-
tion with Hagar and that they also discussed what had happened
again later.13 The employee schedule for the day shows that both
Ybarra and Justin were working together during the morning
shift on January 14 when the conversation with Hagar occurred.
(Tr. 159–164; R. 2)
Ybarra ultimately testified at the representation hearing on
January 18. They were already scheduled to be off work that
day, so there was no need for Ybarra to be excused from work.
(Tr. 73–74, 112, 136)
2. Respondent’s written policies
Ryan Lassiter, who works as a Starbucks district manager, tes-
tified that the only company policy regarding subpoenas is the
one found in the Starbucks employee handbook, known as the
partner guide. The relevant section of the Starbucks employee
handbook/partner guide reads as follows:
Jury and Witness Duty
Serving on a jury is a fundamental responsibility of citizenship.
If summoned to serve on a jury or if subpoenaed to testify as a
witness, the partner should immediately provide the manager a
copy of the summons or subpoena and make arrangements
with the manager for the time away from work.
Starbucks will pay the partner for any scheduled workdays or
shifts missed as a result of jury or witness duty. The partner
should contact the Partner Resources Support Center at (888)
SBUX411 (728 9411) if selected to serve on a jury and the trial
is anticipated to exceed the known work schedule. (R. 9, p. 55)
Employees receive a copy of the partner guide when they are first
hired, and can also request another one if needed; the guide is
also available electronically. Ybarra received a copy of the em-
ployee handbook when they were hired. (Tr. 122–123, 191, 309;
R. 3)
Lassiter also testified as to his understanding of the subpoena
policy in the partner guide saying, “you are to inform your next
level supervisor to arrange coverage of your scheduled shift, and
we would pay a . . . replacement for that time missed from work.”
12 Ybarra’s work schedule for January 14 shows that they were sched-
uled to take a break that day at 10:15 a.m., and their workday ended at
noon. (R. 2)
13 Justin no longer works for Starbucks. (Tr. 179). He did not testify
in this matter.
(Tr. 310). Lassiter was asked by Respondent if an employee
could be in violation of the company’s policy even though they
took time off to testify in a hearing, and he replied “yes.” (Tr.
310) As an example, Lassiter referred to an incident when a
barista was found to be a “no call/no show” for failing to show
up for a scheduled shift without notifying anyone they would be
absent from work. (Tr. 310–311)
Regarding the jury duty/subpoena policy, Starbucks manager
Lawrence testified that the purpose of the policy is to outline how
the company will accommodate any scheduled request for jury
duty or a court subpoena, and that the policy allows “people to
have an excused absence if they’re summoned . . . for jury ser-
vice or subpoenaed to testify in a legal proceeding.” (Tr. 202).
According to Lawrence, the policy’s purpose is to ensure the
company is able to continue to operate and still allow the em-
ployee to attend their scheduled court proceeding. Lawrence
said that the policy advises an employee to inform their immedi-
ate manager as soon as they learn they have scheduled jury duty
or receive a subpoena, with as much notice as possible so the
company “can make arrangements to allow that space.” (Tr.
202). Finally, Lawrence said that being absent because of jury
duty or a subpoena is considered an excused absence so long as
the company is given notice of the reason. (Tr. 202–203, 214)
3. Analysis
I found Ybarra to be a credible witness. Along with assessing
their demeanor during the trial, and reviewing their testimony in
light of the record evidence, I note that they were still employed
by Starbucks at the time of the hearing, thereby testifying against
their pecuniary interest. Advocate South Suburban Hospital, 346
NLRB 209, 209 fn. 1 (2006) enfd. 468 F.3d 1038, 1047 (7th Cir.
2006) (judge properly relied upon a number of factors in as-
sessing credibility including the witness’s demeanor and her sta-
tus as a current employee testifying against her pecuniary inter-
est). And Ybarra’s testimony about what occurred during their
conversation with Hagar on January 14 was unrebutted.14
Therefore, I credit Ybarra’s testimony that, believing they
needed to take the day off on January 17 to testify, and forgetting
the day was a holiday, Ybarra spoke to Hagar during work on
January 14. They were behind the counter near the ovens, and
in the presence of Justin, who was also working that morning.
Ybarra told Hagar that they had been subpoenaed to testify at the
NLRB hearing, would not be able to come to work on Monday,
possibly Tuesday, and wanted to make sure it was okay for them
to be off work to attend the hearing. In reply, Hagar told Ybarra
that her subpoena was not a protected reason to miss work and
following corporate policy a subpoena did not remove Ybarra
from the responsibility of finding coverage for her shift. There-
fore, if Ybarra was absent from work they needed to find
14 Hagar was not called as a witness and did not testify. While Re-
spondent said that she no longer worked at Starbucks, the company did
not subpoena Hagar and there is no evidence that Hagar was somehow
not available to testify if she had been called as a witness by any party.
(Tr. 99–100)
STARBUCKS CORPORATION
5
coverage for their shift to avoid discipline.15 Ybarra acknowl-
edged what Hagar said about finding coverage for their shift, and
the conversation ended.
The Board has found that imposing potentially burdensome
conditions on an employee as a prerequisite for attending a hear-
ing pursuant to an NLRB subpoena constitutes a violation of
Section 8(a)(4) and 8(a)(1) of the Act. Fitel/Lucent Technolo-
gies, Inc., 326 NLRB 46, 54–55 (1998). In Fitel/Lucent Tech-
nologies, an employee named Joel Snyder had received a sub-
poena to testify at an NLRB hearing.16 Snyder was close to his
limit on absences under the company’s no fault absenteeism pol-
icy, so he spoke with Roddy Clifton, the vice president for hu-
man resources, asking how the company handled subpoenas, and
inquiring as to whether missing work to testify would be counted
against him. Clifton replied saying that, if Snyder missed work
to testify, his absence would be grounds for a write-up, as Snyder
would have exceeded the company’s policy limit regarding ab-
sences. But, Snyder had the option of having someone work in
his place or taking a vacation day to testify. Because Snyder did
not have any leave available, he found someone to cover his shift
and was not penalized for being absent to testify at the hearing.
The Board found that the company’s conduct towards Snyder
constituted a violation of the Act, notwithstanding the fact the
employer claimed that it was neutrally applying its no-fault ab-
sentee policy and trying to accommodate Snyder by suggesting
how he could appear at the hearing without incurring an addi-
tional absence chargeable to his record. Fitel/Lucent Technolo-
gies, 326 NLRB at 54. Citing prior precedent, the Board found
that “by imposing the potentially burdensome conditions that
Clifton imposed on Snyder as prerequisite to his attending the
hearing pursuant to Board subpoena, that he exchange shifts”
with someone else, the employer violated Section 8(a)(4) and
8(a)(1) of the Act. Id. (citing U.S. Precision Lens, Inc., 288
NLRB 505 fn. 3 (1988) and Walt Disney World Co., 216 NLRB
836, 837–838 (1975)). The Board noted that a violation was
warranted “even though the impediments Clifton had created to
Snyder’s compliance with the subpoena had been put in place in
neutral application of the Company’s existing no-fault policy on
absenteeism, had not necessarily intended to discourage him
from participating in a Board hearing and had not resulted in dis-
parate treatment.” Id. at 55. Once the company was informed
that Snyder was under an NLRB subpoena, its obligation was to
let Snyder “attend the hearing without imposing conditions.” Id.
The same analysis is applicable here. Once Hagar was informed
that Ybarra was under Board subpoena, her obligation was to let
Ybarra attend the hearing without any preconditions.
Respondent cannot argue that Hagar was simply applying the
company’s neutral attendance and/or subpoena policy, as the
Board rejected a similar claim in Fitel/Lucent Technologies. Id.
15 I believe the fact that Ybarra’s note ends by saying “Corporate pol-
icy apparently requires you to find coverage or show up for the shift,
unless calling out sick” bolsters Ybarra’s testimony that Hagar said they
would be disciplined if they did not find coverage for their shift. Hagar
was trying to impress upon Ybarra that, unlike calling out sick, a sub-
poena was not an excused absence. Therefore, if Ybarra did not find
coverage for their shift, her unexcused absence would subject them to
discipline.
16 Facts taken from Fitel/Lucent Technologies, 326 NLRB at 51.
See also Walt Disney World Co., 216 NLRB 836, 837–838
(1975) (employer’s attendance rules and policies cannot limit or
restrict an individual’s obligations to respond to a Board sub-
poena). Also, the impediments imposed by Hagar did not con-
stitute a neutral application of Respondent’s policies. As Law-
rence testified, so long as an employee provides the company
with notice for the reason behind the absence, Starbucks consid-
ers being absent from work because of a subpoena an excused
absence. This is exactly what Ybarra did; they notified Hagar
about the subpoena as the reason behind their potential absence
from work the next week. While Respondent faults Ybarra for
failing to notify the company about the subpoena and their po-
tential testimony earlier than January 14, Starbucks did not rest
its case in the representation hearing until that day. It is therefore
reasonable that Ybarra, who was the Union’s last witness at the
hearing, would have waited until they could give a reasonable
estimate of when they were needed to testify before seeking
guidance from company management. Once Hagar learned that
Ybarra was under Board subpoena, her obligation was to let
Ybarra “attend the hearing without imposing conditions.”
Fitel/Lucent Technologies, 326 NLRB at 54.
Because the evidence shows that the preconditions set by Ha-
gar were specifically counter to Respondent’s policies, it could
be inferred that Hagar may have been actually trying to discour-
age Ybarra from participating in the representation proceeding.
Sunbelt Enterprises, Inc., 285 NLRB 1153, 1171 (1987) (depar-
ture from consistent past practice is evidence of discriminatory
motive); McClain & Co., 358 NLRB 1070, 1071 (2012) (em-
ployer’s deviations from its handbook procedures is evidence of
animus); Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 645 (7th
Cir. 2013) (significant, unexplained, or systematic deviations
from established policies or practices can be probative circum-
stantial evidence of unlawful intent). That being said, because
the Complaint only alleges a violation of Section 8(a)(1) of the
Act, it is unnecessary to inquire into Hagar’s actual motive for
requiring Ybarra to find coverage for their shift to avoid being
disciplined. Budrovich Contracting Co., 331 NLRB 1333, 1343
(2000) (motive is not an essential element of an 8(a)(1) viola-
tion). Accordingly, by setting preconditions on Ybarra’s ability
to testify pursuant to a Board subpoena, requiring them to find
coverage for their shift to avoid discipline, I find that Starbucks
violated Section 8(a)(1) of the Act. Fitel/Lucent Technologies,
Inc., 326 NLRB 46, 54–55 (1998);17 Winn-Dixie Stores, Inc., 128
NLRB 574, 578–579 (1960) (employer’s statements to employ-
ees, attempting to persuade them to not honor Board subpoenas,
a violation of Section 8(a)(1) of the Act).
C. Complaint paragraphs 4(c) and 4(d)
Complaint paragraphs 4(c) and 4(d) allege that on or about
17 In Fitel/Lucent Technologies, the Board found that the employer
independently violated both Section 8(a)(1) and Section 8(a)(4) of the
Act by imposing potentially burdensome conditions as prerequisites for
employee attendance at a Board hearing pursuant to subpoena. 326
NLRB 46, fn. 3 (1998) (Board member Hurtgen noting his agreement
that the respondent violated Section 8(a)(1) of the Act but not passing on
the Board majority’s finding that the conduct also violated Section
8(a)(4)).
6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
January 27, Respondent: (1) counseled an employee for giving
union buttons/pins to a customer who had expressed interest in
them; and (2) instructed an employee to refrain from giving un-
ion buttons/pins to customers in the future while at work. Both
of these allegations involve Ybarra handing out union buttons to
individuals inside Store #304.
1. Ybarra gives out union buttons in the store
During the campaign to unionize Store #304, Ybarra kept a
union button pinned to their apron; Starbucks employees wear a
green store-clerk type apron while working. On January 26, Jen-
nifer Popkin (Popkin), a regular customer who manages a comics
and games store located two doors down the street, came into
Store #304 for a cup of coffee. Ybarra was working and gave
Popkin some union buttons. Popkin, Ybarra, and Mariscal testi-
fied about what occurred that day. Sometime later, Ybarra also
gave a bag of union pins to a coworker inside the store. Mariscal
and Ybarra testified about this incident. (Tr. 32–33, 75, 148,
158, 165, 171, 242–244, 173–175)
a. Popkin’s testimony
According to Popkin, she was a regular customer at Store
#304, coming in multiple times a week, and sometimes more
than once a day. In January 2022, Popkin knew that the employ-
ees at Store #304 were trying to unionize, as it was common
knowledge in the neighborhood. And, as a store regular, she also
knew Ybarra. (Tr. 33–35, 39, 45–46)
Popkin testified that on January 26 she walked into Store #304
to get a coffee and had a conversation with Ybarra. Popkin was
standing a few feet in front of one of the registers, while Ybarra
was behind the counter. Popkin asked if Ybarra had any flyers
or promotional stuff regarding the union drive that Popkin could
put in her store. Ybarra replied saying that they had buttons.
Popkin asked for some buttons saying she would take them back
to her store and put them out for her employees. Ybarra then left
the counter, walked to the back room, and returned with a small
handful of union buttons which they gave to Popkin. Popkin es-
timated that it took Ybarra about 20 to 30 seconds to walk to the
back room and return with the union buttons. The buttons were
small campaign pins that said “Starbucks” along the top, and
“Workers United” along the bottom, with a star separating each
word. In the middle of the button is an image of a hand holding
what appears to be a to-go coffee cup/bottle. (Tr. 36, 39–40, 47,
49, 51; GC. 2)
Popkin took the buttons back to her store, put them on a center
console, and told her employees that the buttons were available
for them to take. Popkin said there were no other customers in
line at Store #304 when Ybarra gave her the buttons, and while
there might have been customers waiting for a to-go order, she
did not believe that there anyone else was in the store at the time
other than herself and two or three other workers standing behind
the counter in the barista area. According to Popkin, the incident
occurred sometime in the early afternoon. (Tr. 38–40, 51)
b. Mariscal’s testimony
Mariscal testified that she was working with Ybarra behind
18 Throughout Mariscal’s testimony the transcript reads union “pens”
or “pen” instead of “pins” or “pin.” The transcript is corrected
the counter in late January when Ybarra gave a union button to
Popkin. Mariscal said she was standing about five or six feet
away from Ybarra when she observed Ybarra leave the line, walk
to the back room, come back, and give Popkin a button across
the counter.18 Mariscal thought that Popkin was waiting to pick
up her mobile order at the time, but was not exactly sure. Maris-
cal did not believe that Ybarra said anything to their coworkers
when they left to retrieve the buttons, nor did they ask anyone to
cover their position. Mariscal could not remember Ybarra’s spe-
cific job assignment at the time of the interaction, but said it was
likely that they were working in the customer service position.
Mariscal said that the incident happened in the morning, and
there were five or six employees working behind the line. Ac-
cording to Mariscal, she did not hear what was said between
Ybarra and Popkin because it was busy and pretty loud in the
store. During the time it took for Ybarra to walk to the back
room, return, and give the buttons to Popkin, Mariscal did not
observe any customers that were left unattended, nor were there
any customer complaints about what occurred. (Tr. 242–244,
269–271, 276, 290)
Mariscal said that she did not speak with Ybarra immediately
after the incident, because she was unsure of the company’s pol-
icy regarding the situation and said that she wanted to speak with
her leader first. Mariscal testified that she only remembered hav-
ing one discussion with Ybarra about passing out buttons, and
that the conversation occurred after a second incident when
Ybarra gave a bag of buttons to someone in the store while on
their 10-minute break. (Tr. 244, 267, 279–280)
Regarding the second incident, Mariscal could not remember
the exact date it occurred, but said it happened in January and
that she believed it occurred within a couple of days after Ybarra
gave the union buttons to Popkin, possibly even the next day.
Mariscal testified that, on the day of the incident, she was stand-
ing close to the entrance when somebody Mariscal did not rec-
ognize walked into the store. This person did not approach the
counter to order a drink or try to pick up a mobile order. Instead,
the individual and Ybarra exchanged some type of hand signal;
the person then sat in the corner. Shortly thereafter, Ybarra took
their 10-minute break and Mariscal saw they walk to the back
room, come back with a big bag of buttons, talk to the person in
the lobby and give them the bag of buttons. All this happened
while Ybarra was on their 10-minute break. Mariscal did not
recognize the person who took the bag of buttons from Ybarra,
and Ybarra never told her that the person was actually another
Starbucks employee. (Tr. 245–246, 267–269, 279–280, 301)
As for her discussion with Ybarra, Mariscal testified that it
occurred after she witnessed Ybarra hand the bag of buttons to
the person in the store. Mariscal said that she pulled Ybarra
aside, and they went to the back room; just the two of them were
present. Mariscal characterized the interaction as “just a conver-
sation” and denied raising her voice or using a harsh tone. (Tr.
246). According, to Mariscal, during the conversation she said
that Ybarra could not be handing out things to customers, other
than their food/beverage order, while on work time. Mariscal
said that Ybarra could pass out buttons outside of the store or
accordingly. The transcript is also corrected to include Case Number
19–CA–289771 on the cover page.
STARBUCKS CORPORATION
7
work on their free time, and they could hand the buttons out to
friends, family, whoever, but it was not appropriate to do this
while on the floor and working while Ybarra is on the clock.
When asked what words she specifically remembered telling
Ybarra during this meeting, Mariscal testified that, during the
meeting, Ybarra said that she was on a 10-minute break when
they handed off the bag of buttons to the person in the store and
Mariscal replied saying “that is still considered a company-paid
time, so it is not something you should be doing while on the
clock.” (Tr. 249). After this January 2022 discussion, Mariscal
said that she could not recall having any other conversations with
Ybarra about distributing buttons in the workplace. (Tr. 244–
249, 269)
In an effort to refresh Mariscal’s recollection as to the exact
date this conversation occurred, Respondent showed Mariscal a
text message exchange between Mariscal and her district man-
ager Johnna Turvin. The text message includes a photograph
taken by Mariscal showing two Ziplock bags full of union but-
tons sitting on top of the small table that employees use in the
back room; Ybarra’s backpack is on the floor. Mariscal texted
Turvin the picture with the statement “Rachel is passing these
out to customers. Before I have a conversation. What do you
think?” Turvin replied, tagging the picture with a double excla-
mation point, and writing “That doesn’t feel right but let me
check with nica and jim.”19 Mariscal responded with a thumbs-
up emoji and said “Okay.” Mariscal’s phone showed that the
message exchange with Turvin happened on January 26. (Tr.
138, 296–300, 305; R. 13)
Mariscal said that she sent the text message to Turvin because
she felt what Ybarra was doing during work time was inappro-
priate, so she wanted to get some additional guidance as to
whether she needed to have a conversation with Ybarra. Accord-
ing to Mariscal, she was not motivated in any way by the fact
Ybarra was engaging in union activity at the time, nor was she
responding to Ybarra’s union activity. (Tr. 301–302)
c. Ybarra’s testimony
Ybarra testified that she was working on January 26 in a cus-
tomer service/support position, which is also referred to as “CS.”
The CS position is considered floating support and is a mobile
position. The barista in this role performs various tasks to assist
their coworkers including brewing coffee, making pour-overs,
cleaning, and restocking the line. According to Ybarra, Popkin
came into the store that day and said that she liked the pin Ybarra
was wearing. Ybarra replied by telling Popkin a friend of theirs
made the pins, that they had some in their locker in the back room
and offered to get some for Popkin. Popkin said yes, so Ybarra
went to the back room, grabbed a handful of buttons from bags
that she kept in their locker, and gave them to Popkin who said
thank you. Ybarra said that her conversation with Popkin oc-
curred at the register, while Popkin was placing an order, and
that business in the store was slow at the time. Ybarra estimated
that it took them no more than 30 to 45 seconds to walk to their
locker, get the buttons, and give them to Popkin. Ybarra further
said that Mariscal was working at the time and standing next to
19 Mariscal testified that “Nica” is a Starbucks regional director, and
the record shows that “Jim” is legal counsel for the company. (305–306)
them when the incident occurred. Ybarra did not say anything
to Mariscal or their coworkers that they were going to the
backroom, explaining that they did not believe they needed to
say anything because Mariscal was standing right next to her and
saw what happened. According to Ybarra, Popkin usually comes
into the store sometime in the late morning or afternoon. (Tr.
76–77, 142–150, 170, 321–329; GC. 3)
Ybarra said that the next day, when Mariscal came into work
at around 8 a.m., she called Ybarra into the back room. Mariscal
told Ybarra that they were not allowed to give out pins while they
were at work on company time/work time and on Starbucks
property. Ybarra said that Mariscal either said work time or
company time; whichever it was, Ybarra understood Mariscal
was saying that they could not hand out buttons to customers
while on paid time—while at work on the clock. Ybarra per-
ceived Mariscal’s tone to be very harsh during this conversation
and said that nobody else was present during the discussion ex-
cept the two of them. (Tr. 78, 156–158)
During direct examination by the General Counsel, Ybarra did
not testify about giving a bag of buttons to anyone. Instead, it
was during questioning by Respondent on cross examination that
Ybarra testified about the event, saying that, one day while she
was on her ten minute break, she gave a bag of buttons to a Star-
bucks coworker. Ybarra said that the episode occurred sometime
after she gave the union buttons to Popkin, and that Mariscal was
present when it happened. Ybarra testified that, on the day in
question, a Starbucks coworker from another location, who was
organizing their own store, entered Store #304. Ybarra was on
her ten minute break and gave the person a bag of buttons. Af-
terwards, Ybarra said that Mariscal followed her into the back
room and when Ybarra went to sit down, Mariscal asked Ybarra
why she had to have this conversation with her again. Ybarra
asked what Mariscal was talking about saying that they were on
their 10-minute break. In reply, Mariscal said that Ybarra was
“still on company time.” (Tr. 175) Ybarra never told Mariscal
that the person they handed the buttons to was a Starbucks
coworker. (Tr. 173–175)
On redirect examination by the General Counsel, when asked
about the date of this incident, Ybarra said “I think it was late
May . . . [l]ate May or early June.” (Tr. 177) Ybarra further
testified that the coworker who received the buttons was not
someone who regularly came into Store #304 and the person had
not previously worked at the store. Finally, Ybarra said that the
bag of union buttons they gave their coworker were larger than
the ones depicted in the photograph taken by Mariscal, and that
the bag contained a variety of different types of pins. (Tr. 177–
178, 330)
d. Other items baristas have given to customers
In the past, baristas at Store #304 have given customers items
that were not sold by Starbucks including brochures and stickers;
they have also exchanged $2 bills with customers. Ybarra testi-
fied that there was an occasion in about March 2021 when baris-
tas passed out some left-over Valentine’s Day stickers to the
daughter of a particular customer over the course of a couple
8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
weeks. Some of the baristas also saved $2 bills they received as
tips and would exchange the bills with a customer who collected
them. Baristas also handed out resource booklets to customers
who seemed to need help and were encouraged to do so by man-
agement. This material contained social services information
listing places where people in need could go for food or a
shower. (Tr. 79–82, 167–169)
Mariscal testified that she did not know employees were ex-
changing $2 bills with anyone. Regarding the resource booklets,
Mariscal said that they were provided by outreach workers, pur-
suant to a company program, and contained information for the
homeless community showing public resources that are available
for people to receive food, water, and other items. As for passing
out stickers, Mariscal acknowledged that one of the Store #304
employees brought in holiday themed stickers that were kept
keep in a work area. Mariscal said they would place the stickers
on cups to “spread holiday cheer.” (Tr. 250). She denied seeing
employees handing out stickers directly to customers. (Tr. 249–
250, 302–304)
e. Employee handbook rule on solicitation/distribution
Respondent’s partner guide contains the following rule regard-
ing solicitation/distribution:
Soliciting/Distributing Notices
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
non partners in stores or on company premises during working
time or the working time of the partner being solicited. The
only exception that may apply is when a partner is engaged in
distribution or solicitation related to a Starbucks sponsored
event or activity.
Persons not employed by Starbucks are at all times prohibited
from selling, soliciting, distributing or posting written materials
on company premises. If inappropriate solicitation occurs in a
store by a non partner, a partner should politely ask the non
partner to stop or leave the store.
As discussed earlier, the partner guide is distributed to all em-
ployees when they are hired and is also available electronically.
(Tr. 122–123, 191; R. 5, R. 9, p. 36)
2. Analysis
I believe that Popkin, Ybarra, and Mariscal were all trying to
be truthful and testified as to the best of their recollection about
what occurred regarding Ybarra handing out union pins. To the
extent that their testimonies differed, I credit the testimony of
Popkin, who was an unaffiliated neutral witness and whose cred-
ibility was not impeached. Accordingly, I find that on January
26 Popkin came into Store #304, as she regularly does, to get a
coffee; it was sometime in the early afternoon. There were no
customers in line, and virtually nobody else was in the store other
than Popkin and a few workers standing behind the counter.
Popkin knew about the organizing drive, and as she was standing
20 I credit Ybarra’s testimony that they perceived Mariscal’s tone to
be harsh during their conversation. Having seen Ybarra pass out union
pins twice, and after seeking guidance from her superiors, Mariscal
in front of the register, she asked whether Ybarra had any flyers
or promotional items regarding the union drive that Popkin could
take back with her to put out in her store. Ybarra, who was stand-
ing behind the counter near one of the registers, said that they
had some buttons. Popkin said she would take the buttons and
leave them out for her employees. Ybarra then left the counter,
went to the back room, and returned about 30 seconds later with
small handful of union buttons which they gave to Popkin. Pop-
kin took the buttons. When Popkin returned to her store she put
the union pins out and told her employees they were available if
anyone wanted to take one.
As for Ybarra giving a bag of union buttons to a coworker,
there was a discrepancy between the testimony of Ybarra and
Mariscal as to when the incident occurred and whether there
were two conversations involving union buttons or only one.
Otherwise, the testimony about what was actually said was sim-
ilar. After a review of the record, I believe the evidence supports
a finding that there was only one conversation, as testified by
Mariscal, and that it occurred after the second incident, which
happened during the last week of January 2022. Mariscal’s tes-
timony about the second incident was more detailed than the tes-
timony of Ybarra, who testified about the matter in passing, only
after it was raised by Respondent on cross-examination. Also, I
believe that if the second incident had occurred in May, four
months after the first incident with Popkin, and if it was the sec-
ond time Mariscal had discussed this issue with Ybarra, there
would have been some documentary evidence concerning the
matter and showing that it happened in May. There was no such
evidence. The only documentary evidence introduced by the
parties about Ybarra passing out union buttons was the January
2022 text message exchange between Mariscal and Turvin. Ac-
cordingly, I believe the record supports a finding that, a few days
after the incident with Popkin, during the last week of January
2022, Mariscal and Ybarra were working together when a Star-
bucks employee from another location entered Store #304.
Ybarra knew the person was a coworker who was organizing
their own store, but Mariscal did not know the individual was a
Starbucks employee. The individual and Ybarra exchanged ges-
tures or hand signals, and when Ybarra was on their 10-minute
break they went to the back room, retrieved a bag of buttons, and
gave the bag to their coworker who was standing in the lobby.
Mariscal saw what occurred and called Ybarra into the back
room. Mariscal told Ybarra that they were not allowed to give
out buttons/pins while they were at work on Starbucks property
and on paid time, while they were on the clock, but that they
could do this outside the store on their free time. Ybarra pro-
tested, saying that they were on their 10-minute break when the
incident occurred. Mariscal replied by saying that their break
time “is still considered a company-paid time, so it is not some-
thing you should be doing while on the clock.”20 (Tr. 249)
Restrictions against “employee solicitation and distribution of
materials during non-work time and in non-work areas is pre-
sumptively invalid ‘absent a showing by the employer that a ban
is necessary to maintain plant discipline or production.’” United
wanted Ybarra’s conduct to stop and she impressed this upon Ybarra af-
ter calling them into the back room for a one-on-one meeting.
STARBUCKS CORPORATION
9
Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 914 (2004) (quoting
Eastex, Inc. v. NLRB, 437 U.S. 556, 571 (1978)). “In the case of
retail marketing establishments, including public restaurants,
however, the Board has held that solicitation and distribution
may be prohibited on the selling floor at all times.” Beth Israel
Hosp. v. NLRB, 437 U.S. 483, 493 (1978). That being said, an
employer cannot issue a blanket restriction prohibiting solicita-
tion and/or distribution during an employee’s paid break time.
Wireways, Inc., 309 NLRB 245, 245, 249 (1992) (because the
employer did not repudiate its unlawful conduct, the Board finds
respondent violated Section 8(a)(1) by prohibiting distribution
on company paid break-time). Valmont Industries, Inc. v. NLRB,
244 F.3d 454, 469 (5th Cir. 2001) (“An employer must permit
solicitation during meals, breaks, and other nonworking time,
even if the employee remains ‘clocked in’ during such times.”).
Here, Mariscal’s statement to Ybarra that they could not pass
out buttons/pins during their company paid breaks is presump-
tively invalid. Starbucks offered no evidence of special business
circumstances that would justify such a prohibition.21 And, Re-
spondent cannot point to its employee handbook to forego a vi-
olation. Mariscal never referenced the partner guide in her dis-
cussion with Ybarra and the partner guide does not define break
time or working time. Therefore, it does not negate Mariscal’s
unlawful definition of employee working time which, according
to Mariscal, includes paid breaks. Accordingly, by instructing
Ybarra that they could not pass out union buttons and pins during
her company paid break-time, Respondent violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Workers United, affiliated with the Service Employees In-
ternational Union, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By informing employees that they cannot testify pursuant
to an NLRB subpoena without first securing covering for their
shift, Respondent violated Section 8(a)(1) of the Act.
4. By threatening employees with discipline if they testify
pursuant to an NLRB subpoena without having securing cover-
ing for their shift, Respondent violated Section 8(a)(1) of the
Act.
5. By prohibiting all union solicitation or distribution during
company paid break periods, Respondent has violated Section
8(a)(1) of the Act.
6. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative actions, as further set forth in the
Order below, designed to effectuate the policies of the Act. The
21 Because Mariscal’s statement prohibited all solicitation/distribu-
tion on behalf of the union during company paid breaks, there is no need
to determine whether Starbucks qualifies as a public restaurant or
whether the lobby area in Store #304 is a considered a sales area. In fact,
these issues were not briefed by any of the parties.
Respondent shall be required to post the attached notice in Eng-
lish in accordance with J. Picini Flooring, 356 NLRB 11 (2010)
and Durham School Services, 360 NLRB 694 (2014).
In the Complaint, the General Counsel seeks a notice reading
as an additional remedy. A notice-reading is a special remedy
generally imposed where the violations are particularly numer-
ous and egregious, where the respondent is a recidivist violator,
or where other compelling circumstances exist. Amerinox Pro-
cessing, Inc., 371 NLRB No. 105, slip op. at 2 (2022) (notice-
reading remedy appropriate where violations are numerous and
serous); Holiday Inn Express Sacramento, 366 NLRB No. 118,
slip op. at 1 (2018) (the need for a notice reading found to be
“particularly compelling” to counteract the employer’s “flagrant
disregard” of an earlier notice reading which signaled the com-
pany had no intention to adhere to the law). In its brief, the Gen-
eral Counsel’s argument supporting its request for a notice read-
ing remedy is limited to a footnote, and relies upon the allega-
tions in Complaint paragraphs 4(a) and 4(b) regarding Ybarra’s
subpoena to testify in the NLRB representation proceeding.
(GC. Br. at 18) However, I do not believe that the unfair practice
violations found in this matter warrant a notice-reading remedy.
I note that, in Fitel/Lucent Technologies, 326, NLRB 46, 55–56
(1998), where a similar violation occurred, the Board did not or-
der a notice-reading remedy. The same is true in U.S. Precision
Lens, Inc., 288 NLRB 505 (1988), Walt Disney World Co., 216
NLRB 836 (1975) and Winn-Dixie Stores, Inc., 128 NLRB 574
(1960). Because the General Counsel has not shown that the
Board’s standard remedies are insufficient to remedy the unfair
labor practices found herein, I find that a notice-reading remedy
is not necessary.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended22
ORDER
Respondent Starbucks Corporation, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from
(a) Informing employees that they cannot testify pursuant to
an NLRB subpoena without first securing coverage for their
shift.
(b) Threatening employees with discipline if they testify pur-
suant to an NLRB subpoena without having secured coverage for
their shift.
(c) Prohibiting all union solicitation or distribution during
company paid break periods.
(d) 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 effectu-
ate the policies of the Act
(a) Within 14 days after service by the Region, post at its
Store #304, located at 101 Broadway East, Seattle, Washington,
22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
copies of the attached notice marked “Appendix.”23 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 19, after being signed by the Respondent’s authorized rep-
resentative, 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. In ad-
dition to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, text message,24 posting
on an intranet or an internet site, and/or other electronic means,25
if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respond-
ent 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 Store #304 at any time since January 14,
2022.
(b) Within 21 days after service by the Region, file with the
Regional Director for Region 19 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT inform employees that they cannot testify pur-
suant to an NLRB subpoena without first securing coverage for
their shift.
WE WILL NOT threaten employees with discipline if they testify
pursuant to an NLRB subpoena without having secured coverage
for their shift.
WE WILL NOT prohibit all union solicitation or distribution dur-
ing company paid break periods.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
STARBUCKS CORPORATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-289275 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
23 If the facilities involved in these proceedings are open and staffed
by a substantial complement of employees, the notice must be posted
within 14 days after service by the Region. If the facilities involved in
these proceedings are closed or not staffed by a substantial complement
of employees due to the Coronavirus Disease 2019 (COVID-19) pan-
demic, the notice must be posted within 14 days after the facilities reopen
and a substantial complement of employees have returned to work. If,
while closed or not staffed by a substantial complement of employees
due to the pandemic, the Respondent is communicating with its employ-
ees by electronic means, the notice must also be posted by such electronic
means within 14 days after service by the Region. If the notice to be
physically posted was posted electronically more than 60 days before
physical posting of the notice, the notice shall state at the bottom that
“This notice is the same notice previously [sent or posted] electronically
on [date].” 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
24 See R-Case transcript at 208, 276, 281, 624–626 (noting that the
manager for Store #304 communicates with employees by email and text
message).
25 The representation proceeding transcript shows that the manager
and employees at Store #304 use a Facebook group for purposes of se-
curing coverage for available shifts. See R-Case transcript at 101, 208–
210, 571–573, 577–578, 580–581, 622.