Starbucks Corporation

373 NLRB No. 21 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, South- ern Regional Joint Board, a/w Service Employees International Union. Case 12–CA–291151 February 14, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On May 17, 2023, Administrative Law Judge Donna N. Dawson issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Coun- sel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 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,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recom- mended Order of the administrative law judge as modified 1 The Respondent asserts that Members Prouty and Wilcox should recuse themselves based on their “past, present, and perceived relation- ships with the Service Employees International Union (SEIU), SEIU Lo- cal Unions, and their affiliates, including Charging Party Workers United.” Members Prouty and Wilcox have determined, in consultation with the Board’s Designated Agency Ethics Official, that there is no ba- sis to recuse themselves from the adjudication of this case. 2 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. The judge indicated that the Respondent’s, regional director, Thomas Langlois, and its human resources manager, Laura Hadjuk, are located in Seattle, Washington, although the record is silent on their work loca- tion. The judge’s statement about their locations does not affect our dis- position of this case. In affirming the judge’s conclusion that the Respondent violated Sec. 8(a)(1) of the Act by threatening employees with reprisals, we find no merit in the Respondent’s contention, raised for the first time on excep- tions, that Store Manager Diron Martinez’ statement did not explicitly threaten employees with reprisals and therefore was lawful under Sec. 8(c), which, the Respondent contends, protects employer statements ab- sent “explicit” threats. First, the Respondent’s contention is untimely raised and thus waived, as it was not argued before the judge. See Yorkaire, Inc., 297 NLRB 401, 401 (1989), enfd. 922 F.2d 832 (3d Cir. 1990). However, even if this argument were properly before us, we would reject it. Sec. 8(c) provides that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” 29 U.S.C. § 158(c). Contrary to the Respond- ent’s contention, then, the text of Sec. 8(c) does not draw any distinction between “explicit” and “implied” threats. Further, the Respondent’s below and orders that the Respondent, Starbucks Corpo- ration, Hialeah, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). “(a) Post at its Hialeah, Florida facility copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 12, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps 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 Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since February 15, 2022.” argument is contrary to the Board’s longstanding approach of finding implicit threats unlawful. See, e.g., New York Paving, Inc., 371 NLRB No. 139, slip op. at 4 (2022) (“Sec[.] 8(c) . . . does not protect an em- ployer’s explicit or implicit threats of reprisal or predictions of future consequences resulting from protected union conduct.”), enfd. 2023 WL 7544999, Case Nos. 22–1266 and 22–1289 (D.C. Cir. Nov. 14, 2023); Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 371 NLRB No. 126, slip op. at 3 fn. 6 (2022) (finding an employer’s statement containing “an implied threat” not protected by Sec. 8(c)). It is also contrary to the Su- preme Court’s view of Sec. 8(c), articulated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). See id. at 618 (statements carrying “any im- plication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him” are threats of retaliation) (emphasis added). 3 We shall modify the judge’s recommended Order in accordance with our decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tices must be posted within 14 days after the facility reopens and a sub- stantial 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 employees by electronic means, the notices must also be posted by such electronic means within 14 days after service by the Region. If the notices to be physically posted were posted electronically more than 60 days before physical posting of the notices, the notices 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Dated, Washington, D.C. February 14, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Cristina Ortega, Esq., for the General Counsel. Jedd Mendelson, Esq., for the Respondent. Michael Schoenfeld, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE DONNA N. DAWSON, Administrative Law Judge. This case was tried remotely in the Zoom for Government platform on June 28 and 29, 2022. The complaint alleges that Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge and other reprisals if they engaged in activities on behalf of the Charging Party Union (hereafter, the Union). The Respondent denied the essential allegations in the complaint. After the trial, the General Counsel, the Charging Party, and the Respondent filed briefs, which I have read and considered. Based on the briefs of the parties and the entire record, includ- ing the testimony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Washington corporation with its principal of- fice and place of business located in Seattle, Washington, oper- ates retail restaurants throughout the United States, including a store at 583 W. 49th Street in Hialeah, Florida, the facility in- volved in this case. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find, as Respondent admits, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts Background Respondent’s employees, whom it calls partners, began a na- tionwide union organizational effort at selected stores through- out the country in the Fall of 2021. (Tr. 161–162.) On February 8, 2022, the Union filed a charge with the Board’s regional office in Memphis, Tennessee, alleging that Respondent had violated 1 Williams also noted other security. Id. the Act by firing several employees at one of its Memphis stores for engaging in union activities. (Tr. 129.) The General Counsel issued a complaint in that case, obtained a district court injunc- tion putting the discharged employees back to work pending completion of the unfair labor practice proceeding, and presented the case at trial before a Board administrative law judge. On May 4, 2023, Judge Paul Bogas issued his decision in the case, finding some violations and dismissing other allegations. See administrative law judge decisions on the Board’s public website for Cases 15–CA–290336 et al. On February 8, 2022, the same day the above unfair labor practice charge was filed, Corporate Level Executive Rossann Williams sent a Partner Update message on behalf of Respondent to all of Respondent’s employees throughout the country notify- ing them about “an incident that happened at one of our Memphis stores that I feel is important to share with you.” The message went on to describe the discharges that led to the NLRB charge filed that same day and mentioned above. The Williams message described the discharges as being for violation of safety and se- curity protocols, that is, permitting non-employees into the store after hours.1 The message also stated that the Union had filed a petition to represent the employees at the Memphis store where the discharges took place. (C.P. Exh. 1, Tr. 226–227.) At some point, the nationwide union campaign reached Hia- leah. This case involves alleged statements and events that took place on February 15, 2022, at the Hialeah store, where Will Sua- rez, an employee and shift supervisor, was spearheading the or- ganizing campaign on behalf of the Union among the Hialeah employees. As lead organizer, Suarez disseminated information about the Union to coworkers, answered their questions and con- nected with community allies from the beginning of the cam- paign in January 2022 through the next 3 months. (Tr. 106–107.) Suarez was also the webmaster of an Instagram site titled “Hia- leah Starbucks Workers United” that posted messages about the union campaign. (Tr. 118–120, GC Exhs. 5(a)-(c).) A petition was filed with the Board seeking an election for union represen- tation of the Hialeah employees in late February 2022. (Tr. 107.) The election was held in late April of 2022 and the Union was rejected. (Tr. 108.) The store manager at the Hialeah store in January and through February 15, 2022, was Diron Martinez. His superior was Dis- trict Manager Diago Desme, who is not located in Hialeah. Desme in turn reported to the regional director for the Southeast Region, Thomas Langlois, who is stationed at Respondent’s headquarters in Seattle, Washington. Suarez, Martinez and Desme all testified in this case, as did another Hialeah employee at the time, Rafael Barreras. The Events of February 15, 2022 In connection with the union campaign at the Hialeah store, Suarez was interviewed by Reporter Daniel Rivero of the local National Public Radio affiliate, station WLRN. That interview was broadcast on the morning of February 15 and excerpts ap- peared online at 7 am on February 15. (Tr. 115–117, 165, GC Exhs. 3(a) and (b).) The online article quoted Suarez as stating that a majority of the Hialeah employees had signed authoriza- tion cards on behalf of the Union. The article also specifically mentioned that Respondent had recently fired several employees at one of its Memphis stores for “allowing media organizations” inside the store, but the Union claimed that the discharges were discriminatorily motivated. (GC Exh. 3(a).) STARBUCKS CORP. Sometime in the afternoon of February 15, a reporter and cam- era man from Telemundo TV came into the Hialeah store and spoke with Store Manager Martinez asking to interview people about the unionization effort. (Tr. 188–189.) According to Mar- tinez, this was one of two “unusual” events that day. (Tr. 188.)2 As a result of the presence of the Telemundo TV crew at the Hialeah store on February 15, Martinez contacted Desme, his su- perior, at about 3 or 4 pm, and spoke to him about the matter. (Tr. 261.) Desme told Martinez to tell the Telemundo people that any interview requests had to go through appropriate chan- nels from the Respondent’s media department and to give them the appropriate phone number and email address. (Tr. 262.) Martinez relayed that information to the Telemundo crew, who then went outside and set up their camera and equipment in an adjacent parking lot. (Tr. 188–190, 210–212.)3 Desme considered the Suarez media contacts about union ac- tivity at Hialeah significant because, at 4:29 pm on February 15, he sent an email to Regional Director Langlois and Resources Manager Laura Hadjuk, as well as Respondent’s press depart- ment, notifying them of the visit to the Hialeah store “by a cam- era crew from Telemundo asking our store manager Diron Mar- tinez and SSV Will Suarez for an interview in regards (sic) to” the WLRN internet article discussed above. (Tr. 282–284, GC Exh. 6.) Desme also included a link to the WLRN site for the article. Ibid. Desme’s email is illuminating. Desme notified his superiors in Seattle that the Telemundo crew initially told Martinez that it wanted to interview Martinez and Suarez, which Desme could only have learned from Martinez. This shows that Martinez was not fully candid when he testified about the Telemundo crew first asking him about interviews because he did not specifically men- tion Suarez as someone Telemundo wanted to interview; he simply mentioned himself and “baristas” generally as subjects of the proposed interview See Tr. 189, 199.4 The email also makes clear that Martinez knew about the WLRN interview of Suarez that appeared online on the morning of February 15 because Martinez obviously told Desme about it later in the day. In fact, Desme admitted that Martinez “[p]otentially, yeah” told him that the media was there to discuss the news article about the union- ization campaign at the Hialeah store. (Tr. 280, 308, GC Exh. 6.) The Exchange Between Martinez and Suarez Suarez arrived at the Hialeah store at about 4:30 p.m., in ad- vance of his normal starting time of 5 p.m. (Tr. 121.) Before going inside, Suarez encountered and spoke with the Telemundo 2 The other unusual event that occurred on February 15, according to Martinez, was that two customers came into the store and posted union literature on the Hialeah store’s community bulletin board, which was contrary to Respondent’s policy permitting only the posting of commu- nity-related material. He asked the customers, whom he did not iden- tify further, to take the material down, but they did not. He did nothing further to cause the material to be taken off the community bulletin board. (Tr. 203–204.) Martinez notified his superior, Desme, about this unusual event, as he did about the visit of the Telemundo TV crew. (Tr. 264–266.) 3 Desme also instructed Martinez to notify employees about Respond- ent’s media policy. (Tr. 262.) He testified that Martinez told him that Martinez did tell the employees about the media policy. (Tr. 263–264.) But I do not credit the latter testimony in part because it was unreliable hearsay. Moreover, although Martinez testified that he did indeed talk to the employees at the store on February 15 (Tr. 190–192), I cannot credit that testimony because, as I discuss more fully later in this reporter and agreed to a requested interview. He told the reporter that he was going inside to deposit his belongings and would re- turn outside to talk to him. (Tr. 122.) As he walked inside the store and towards the back, Martinez approached Suarez and said, “Hey, Willie boy, looks like you’ve become quite a celeb- rity around these parts.” (Tr. 123–124.) Martinez then asked Suarez to clock in early because he wanted to talk to Suarez. Suarez replied that he had something to do and when Martinez repeated his request, Suarez responded that he did not have to discuss union business with Martinez. At that point, Martinez told Suarez, “I just don’t want this to turn into another Mem- phis,” to which Suarez replied, “don’t worry, I’ve done my re- search. Why? Is anybody going to get fired?” Martinez re- sponded, “no, nothing like that.” Then Suarez asked, “am I good to go?” and Martinez said, “yes.” Suarez then went outside to do the interview with Telemundo, which dealt with unionization at the store and was done on non-work time. When the interview was completed, Suarez went back into the store to begin his shift. (Tr. 124–125.) The above is based on the direct, detailed, candid, and reliable testimony of Suarez, who was, when he testified, still an em- ployee of Respondent testifying against its interests, which en- hances his credibility. Indeed, the above testimony by Suarez survived strong cross-examination. Moreover, in significant re- spects, Suarez was corroborated by employee Rafael Barreras, who was also present during the exchange between Martinez and Suarez and testified prior to Suarez at the hearing. Barreras heard Martinez say he did not want the matter to turn into another Memphis and he heard Suarez say that he did not have to talk to Martinez about the Union. See (Tr. 67–69.) I also found Barre- ras to be a credible witness who remained steadfast in his testi- mony about the above throughout cross-examination. Barreras’s testimony that he was not sure whether the statement about an- other Memphis came before or after the statement by Suarez about not having to talk about the Union (Tr. 81) does not affect my decision to credit Barreras, in view of his consistent and re- peated testimony that both statements were made. (Tr. 93.) In- deed, the reliability of Barreras’s testimony is enhanced because he candidly admitted he did not know or understand the refer- ence to Memphis when he heard Martinez mention it to Suarez, but, later that day, he researched the matter and learned about the incident and its meaning. (Tr. 98.)5 Unlike Suarez and Barreras, Martinez, whose testimony was not corroborated by any other employee at the store that day, was decision, I found him generally to be an unreliable witness. But even apart from that, his testimony on this issue is not credible. No employees testified that Martinez notified them of the media policy on February 15. To the contrary, both Suarez and Barreras, the only employees who did testify, offered mutually consistent and credible denials that they were informed of the media policy that day by Martinez. (Tr. 83–84, 160.) Barreras went further and firmly stated that Martinez spoke to no one about the media policy on February 15. (Tr. 83–84.) Martinez himself could not even name any employee aside from Suarez with whom he spoke about the policy. (Tr. 232.) Nor is there any specificity in the testimony of Martinez as to exactly how and in what words, or on which shifts, he allegedly notified the employees of Respondent’s media policy. 4 Martinez even claimed he had not seen any indication of union or- ganizing activity at the store on February 15 or thereafter until Respond- ent reached out to him about the allegations made against him. (Tr. 198.) 5 At the time of the hearing Barreras was no longer employed by Re- spondent, having quit his employment prior to the hearing. (Tr. 78, 64.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 not a reliable witness.6 In addition to the discussion above where I rejected his testimony about notifying employees of the Re- spondent’s media policy and where I noted his lack of candor for not specifically identifying Suarez as the barista Telemundo wanted to interview, other parts of Martinez’s testimony were problematic. Martinez testified that the only exchange he had with Suarez on February 15 was “greeting him into his shift, and in the back of the house . . . the usual, just checking in, how are you feeling? How are you doing today?” (Tr. 193–194). When asked on direct by Respondent’s counsel whether he made a comment to Suarez about other stores in the Starbucks system, Martinez answered, [n]o, not that I can recall.” (Tr. 196.) That was not even close to a firm denial but was typical of his other testimony which was often circuitous and ambiguous. For ex- ample, when asked whether he told Suarez that he was acting like a celebrity when he returned from his interview with Telemundo—roughly what Suarez described him as saying, Martinez testified: “I can’t say for sure what I said or didn’t say specifically, I mean this happened 3 months ago. So, no, I’m not 100 percent sure.” (Tr. 226.) His testimony also lacked candor and detail. I thus discredit the testimony of Martinez on the im- portant issues in this case. Here is an important strand of testimony from Martinez, which confirms my credibility determination. When asked on direct whether, on February 15, he had heard about union organizing at Starbucks stores other than the Hialeah store—a key factor in the alleged violation here, he answered, “no, not that I am aware of.” (Tr. 199.) Later, on cross-examination by counsel for the Gen- eral Counsel, he responded to a similar question in a vague and evasive way—that he was aware of a communication that was distributed, but not “personally distributed to me.” He contin- ued, testifying that “prior to February 15th, I would not have known of any communication that would have been shared re- garding that.” (Tr. 214.) When the question was asked again in a different form, Martinez again denied receiving such infor- mation. (Tr. 218–219.) On cross-examination by counsel for the Charging Party, Martinez firmly denied having an idea before February 15 that “other Starbucks stores were forming unions.” (Tr. 220.) Upon further questioning, however, Martinez, re- treated saying he could not remember. Later, he retreated further stating that it was “[u]nlikely, but maybe.” (Tr. 220–223). But still later, when shown the exhibit (C.P. Exh. 1) of the actual communication sent to all employees, he admitted that he “prob- ably” read the message sent by Respondent to all employees on February 8, 2023, discussed above, acknowledging a union cam- paign at a store of Respondent in Memphis, and advising them about the discharge of the Memphis employees for letting media inside a store of Respondent that resulted in allegations of union discrimination. (Tr. 230.) On redirect, Martinez confirmed read- ing the message, but professed not to know when he read it. (Tr. 235.) But Martinez’s bobbing and weaving was unnecessary. Desme’s email to Seattle makes clear that Martinez had learned of the nationwide union campaign, including the incident at the Memphis store, at the latest on the morning of February 15 be- cause he told Desme later that day of the WLRN interview of Suarez which included a reference to the Memphis situation. Martinez’s vacillation and evasiveness on this essential issue in the case before his ultimate admission that he read about the 6 February 15, 2022, was the last day Martinez worked at the Hialeah store. The next day he went on family leave of absence. When he re- turned from that leave he was appointed as store manager for another of Memphis incident is reason enough to discredit his testimony as a general matter, but, because it deals very specifically with a statement that he made to Suarez on February 15, it strongly sup- ports my finding, contrary to his testimony and consistent with that of Suarez and Barreras, that the statement was made. B. Discussion and Analysis It is well settled that the test for interference, restraint or coer- cion under Section 8(a)(1) of the Act is whether the statement or conduct may reasonably be said to have the tendency to interfere with the free exercise of employee rights under Section 7 of the Act, including the right to engage in union activities. It is also clear that the motive or effect of the coercive or threatening state- ment or conduct is immaterial to the finding of a violation. Dou- ble D Construction Group, 339 NLRB, 303–304 (2003); Crown Stationers, 272 NLRB 164 (1984). See also American Freight- ways Co., 124 NLRB 146, 147 (1959). Put another way, “[a]n employer violates Section 8(a)(1) if its conduct would tend to coerce a reasonable employee” in the exercise of their Section 7 rights, and that determination is to be made in the context of the “totality of the relevant circumstances.” Saginaw Control & En- gineering, Inc., 339 NLRB 541, 541 (2003), citing numerous au- thorities. Applying the above principles to my findings of fact, I also find that Martinez’s reference, in his February 15 exchange with Suarez, to what happened in the Memphis Starbucks case amounted to a threat of retaliation if Suarez continued to speak publicly about the Union’s effort to organize the Hialeah store. The context of the reference gives it an undeniable meaning. The Union had initiated a nationwide effort to organize Respondent’s stores. Respondent had discharged several employees at one of its Memphis stores for talking to the media about the Union. Re- spondent had referenced that incident in a nationwide message to all employees just 1 week before Martinez’s reference about Memphis in his exchange with Suarez, who was himself publi- cizing the Hialeah union campaign in local media, including in a broadcast the very morning of February 15. Martinez clearly knew about both prior to his greeting and speaking to Suarez in the late afternoon of February 15. Indeed, the media had con- tacted Martinez prior to his exchange with Suarez and Martinez knew that Suarez was going to meet with the media that very day, obviously about the union campaign, prior to his official re- porting time. Martinez opened his remarks by referring to Suarez’s celeb- rity status for meeting with the media and Martinez clearly knew that the interview was to be about the union campaign. So, when Martinez followed that statement by saying he wanted to talk to Suarez before work time, it was clear that the subject of that talk would be the Union. Suarez responded that he did not have to talk with Martinez about the Union. In response, Martinez raised the Memphis example of employees being discharged for media contacts about union activities, which, of course, was what Sua- rez had done in the interview with radio station WLRN and was going to do shortly in the interview with Telemundo. Suarez clearly understood the reference when he asked if anyone would be fired. Although Martinez replied, “nothing like that,” the message of coercion and retaliation for union activities was Respondent’s stores and remained a store manager employed elsewhere by Respondent at the time of his testimony. (Tr. 186–188, 265, 274.) STARBUCKS CORP. clearly planted.7 In these circumstances, particularly in view of Suarez’s role as the leader of the Union effort at the Hialeah store, his promi- nence in meeting with the media, and the likelihood, because of his leadership position and operation of the union-related Insta- gram site, that he would disseminate Martinez’s statements to his coworkers, Martinez’s exchange with Suarez on February 15, 2023, could reasonably be construed as threatening reprisals for Suarez and other employees for engaging in union activities. Contrary to Respondent’s contention (R. Br. 20), Martinez’s remarks could not “reasonably” be understood as a benign cau- tion for Suarez to avoid discipline. Indeed, that very argument confirms that the words used suggested some kind of discipline was contemplated or at least possible, thus further supporting the finding of an unlawful threat. But, in any event, the situation here was different from what allegedly prompted Respondent to, in its view, rightly discipline the Memphis employees. Thus, there was no rational basis to caution Suarez about benign disci- pline. The Memphis employees were ostensibly disciplined for letting media inside the store. Suarez’s interview, on the other hand, took place outside the store at a time when he was not on the clock. Indeed, based on my credibility determination, Mar- tinez never even talked to Suarez about the Respondent’s media policy. Finally, even if Martinez’s comments could reasonably be construed as a non-threatening or benign caution, it would not rule out the finding of a violation. If, as here, a reasonable con- struction of the words used supports the finding of an unlawful threat, it need not be the only reasonable construction. Double D Construction Group, 339 NLRB 303–304 (2003). 8 CONCLUSIONS OF LAW 1. By threatening reprisals for employees who engaged in un- ion activities, Respondent violated Section 8(a)(1) of the Act. 2. The above violation constitutes an unfair labor practice within the meaning of the Act. REMEDY Having found that Respondent engaged in certain unfair la- bor practices, I shall order that Respondent cease and desist from engaging in such conduct and take appropriate affirmative action designed to effectuate the policies of the Act, including the post- ing of an appropriate notice. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended9 ORDER Respondent, Starbucks, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening reprisals to employees for engaging in union 7 The phrase “nothing like that” did not negate that someone, partic- ularly Suarez, might be fired for dealing with the media about union ac- tivity because it did not adequately follow the requirements for an effec- tive repudiation of a committed unfair labor practice set forth in Passa- vant Memorial Area Hospital, 237 NLRB 138 (1978). But, even if it did, the statement did not rule out other lesser forms of retaliation. 8 Respondent’s further contention (R. Br. 21–22) that, even if a vio- lation occurred, it was de minimis thus warranting dismissal of the com- plaint is without merit. Threats of reprisal are not trivial. But, in any event, the Board does not approve dismissal on de minimis grounds where, as here, the violation has not been substantially remedied or oth- erwise rectified. See Dish Network Service Corp., 339 NLRB 1126, activity. (b) 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 Hialeah, Florida facility, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Re- spondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with employees by such means. 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 Respond- ent 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 employ- ees and former employees employed by the Respondent at any time since February 15, 2022. (b) 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. Dated at Washington, D.C., May 17, 2023 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 threaten employees with reprisal if they engage 1128 fn. 11 (2003). Finally, I have considered all of Respondent’s argu- ments/defenses and have found them without merit. 9 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 waived for all purposes. 10 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 in union or other protected activity. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights listed above. STARBUCKS CORPORATION The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/12-CA-291151 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.