Trader Joe's

373 NLRB No. 73 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. Trader Joe’s and Jill Groeschel. Cases 16–CA–291179 and 16–CA–293143 July 9, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On March 1, 2023, Administrative Law Judge Kimberly R. Sorg-Graves issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the Gen- eral Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel also filed cross- exceptions and a supporting brief. The Respondent filed an answering brief to the General Counsel’s exceptions, and the General Counsel filed a reply brief. 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, cross-exceptions, and briefs and has decided to affirm the judge’s ruling, findings,1 and conclusions, and to adopt the recommended Order as modified and set forth in full below.2 1. In affirming the judge’s conclusion that under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983), the Respondent violated Section 8(a)(1) of the Act by issuing a written warning to Jill Groeschel, we observe that the judge relied, as evidence of animus, on the following: Fuller’s statement question- ing whether Groeschel was “fit” for her position after she 1 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. In her decision, the judge stated that the Union is a labor organization within the meaning of Sec. 2(5) of the Act, although there is no labor organization involved in this proceeding. The judge also stated that the Respondent’s store manager, David Fuller, approached employee Jill Groeschel and apologized for being rude to her during the huddle meet- ing. The record reflects, however, that employees approached Fuller and apologized for Groeschel’s rudeness during the meeting. These state- ments by the judge do not affect our disposition of this case. 2 The General Counsel excepts to the judge’s refusal to order a notice reading. In agreement with the judge, we find that the notice-reading remedy is unwarranted here. We also deny the General Counsel’s re- quest for nationwide notice-posting because our findings of violations here rely only on events at the Houston store. Member Prouty would grant the General Counsel’s cross-exceptions to the extent of ordering that the Board’s remedial notice be read aloud and he would further order that the notice be distributed to employees at the notice-reading meeting. See CP Anchorage Hotel 2 d/b/a Hilton An- chorage, 371 NLRB No. 151, slip op. at 9–15 (2022) (Member Prouty, complained about the Respondent’s COVID-19 protocols, email exchanges between Regional Vice President Liz Hancock and Fuller about Groeschel’s ongoing safety complaints, and a significant departure in recording details in Dayforce about Groeschel’s conduct. We agree with the judge that these facts provide ample evidence that the Respondent’s animus was a motivating factor in Groeschel’s written warning. 2. In affirming the judge’s conclusions that under Wright Line, the Respondent violated Section 8(a)(4) and (1) by suspending and discharging Groeschel, we agree with the judge that Groeschel engaged in protected con- certed activity when she discussed issues relating to her 401(k) benefits with her coworker. Groeschel approached employee Julia Garcia, who had a background in finance, and asked if she knew the Respondent was overcharging fees on its plan. At that time, some employees had already initiated a lawsuit against the Respondent about its 401(k) plan, in which Groeschel and other employees partici- pated. In these circumstances, Groeschel’s efforts to enlist the help of her coworker about employees’ ongoing group concerns over their terms and conditions of employment constituted protected concerted activity. See, e.g., Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038 (1992) (not- ing that “individual action is concerted where the evidence supports a finding that the concerns expressed by the indi- vidual are logical outgrowth of the concerns expressed by the group”), supplemented by 310 NLRB 831 (1993), enfd. 53 F.3d 261 (9th Cir. 1995); Montgomery Ward & Co., 156 NLRB 7, 9–10 (1965) (employee engaged in pro- tected concerted activity when she engaged her coworkers in discussions about whether their employer was violating the Equal Pay Act by paying women less than men with similar prior work experience). Because we find that Groeschel engaged in protected concerted activity under concurring) (urging the Board to adopt a reading of the notice aloud and distribution to employees at a group meeting as a standard remedy for unfair labor practices because “[h]aving the notice to employees read aloud to them in a group meeting, with a copy in hand to follow along if they choose, is a superior means of disseminating and amplifying the Board’s message to maximize the extent to which employees hear and comprehend it.”), enfd. 98 F.4th 314 (D.C. Cir. 2024). A notice reading is particularly appropriate here, where the Respondent routinely com- municates with employees through group meetings. We shall modify the judge’s recommended Order to conform to the violations found and the Board’s standard remedial language, and in ac- cordance with Paragon Systems, Inc., 371 NLRB No. 104 (2022). In addition, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), enf. denied on other grounds 102 F.4th 727 (5th Cir. 2024), we have amended the make-whole remedy and modified the judge’s rec- ommended Order to provide that the Respondent shall also compensate Groeschel for any other direct or foreseeable pecuniary harms incurred as a result of her unlawful termination, including reasonable search-for- work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We shall substitute a new notice to conform to the Or- der as modified. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988), we find it un- necessary to rely on the judge’s statement that her activity was “inherently concerted.” In addition, in affirming the judge’s conclusion that the Respondent unlawfully suspended Groeschel, we agree with the judge that the Respondent’s animus towards Groeschel’s charge filing and other protected activity is shown by the close timing between those activities and the suspension, and by the Respondent’s failure to complete a meaningful investigation into any of the allegations of misconduct the Respondent relied upon in discharging Groeschel. Contrary to the Respondent’s contention, then, the judge did not rely solely on timing. Moreover, the em- ployee complaints about Groeschel cited by the Respond- ent as a basis for the suspension do not support its position either. As the judge found, it is clear on the face of most of the statements that the employees were motivated to submit them in response to Groeschel’s protected conduct of discussing the filing of her unfair labor practice charge. The judge also found that the Respondent's store manager and assistant store managers suggested that some employ- ees draft and submit their statements when those employ- ees complained about Groeschel. The Respondent’s reliance on those statements further underscores the suspicious nature of the suspension.3 The Respondent contends that Groeschel’s suspension was consistent with its normal practice. Although the judge did not explicitly address this contention, we find that it is without merit. In advancing this argument, the Respondent relies solely on Hancock’s testimony that it was “common” to suspend an employee when doing an investigation. Such unspecific, conclusory testimony is insufficient to establish that it was common for the Re- spondent to suspend employees to investigate allegations of misconduct similar to Groeschel’s. For this reason, in addition to those stated by the judge, we find that the Re- spondent has not sustained its defense burden under Wright Line to show that it would have suspended Groeschel even in the absence of her charge-filing and other protected activity. ORDER The National Labor Relations Board orders that the Re- spondent, Trader Joe’s, Houston, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from 3 Although the Respondent claims that the suspension was a nondis- ciplinary measure, it does not argue in its exceptions brief that the sus- pension was not an adverse action for purposes of the Wright Line anal- ysis. Indeed, in its exceptions brief the Respondent refers to the judge’s analysis of the “adverse actions” against Groeschel. 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 (a) Disciplining, suspending, or discharging employees because they engaged in protected concerted activities. (b) Suspending or discharging employees because they file an unfair labor practice charge with the Board. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Jill Groeschel full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed. (b) Make Jill Groeschel whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (c) Compensate Jill Groeschel for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). (d) File with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed by agreement or Board order, or such additional time as the Regional Director may allow for good cause shown, a copy of Jill Groeschel’s corresponding W-2 form(s) re- flecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discipline, sus- pension, and discharge of Jill Groeschel, and within 3 days thereafter, notify her in writing that this has been done and that the discipline, suspension, and discharge will not be used against her in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Houston, Texas facility copies of the at- tached notice marked “Appendix.”4 Copies of the notice, employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens 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 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 TRADER JOE’S on forms provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, 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 facilities 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 October 25, 2021. (h) Within 21 days after service by the Region, file with the Regional Director for Region 16 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. July 9, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. “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 FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose a representative to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT discipline, suspend, or discharge you for engaging in protected concerted activities. WE WILL NOT suspend or discharge you for filing an un- fair labor practice charge with the Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Jill Groeschel full reinstatement to her former job or, if that job no longer exists, to a substantially equiv- alent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Jill Groeschel whole for any loss of earnings and other benefits resulting from the discrimina- tion against her, less any net interim earnings, plus inter- est, and WE WILL also make her whole for any other direct or foreseeable pecuniary harms suffered as a result of the discrimination, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Jill Groeschel for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 16, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). WE WILL file with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed by agreement or Board order, or such additional time as the Regional Director may allow for good cause shown, a copy of Jill Groeschel’s corresponding W-2 form(s) re- flecting the backpay award. WE WILL, within 14 days from the date of the Board’s order, remove from our files any reference to the unlawful discipline, suspension, and discharge of Jill Groeschel, and WE WILL, within 3 days thereafter, notify her in writ- ing that this has been done and that the unlawful disci- pline, suspension, and discharge will not be used against her in any way. TRADER JOE’S The Board’s decision can be found at www.nlrb.gov/case/16-CA-291179 or by using the QR 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 4 code below. 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. Maxie Miller, Esq., for the General Counsel. Arrissa Meyer, Esq., for the Respondent. DECISION STATEMENT OF THE CASE KIMBERLY R. SORG-GRAVES, Administrative Law Judge. On February 23 and March 30, 2022, Jill Groeschel file charges 16– CA–291179 and 16–CA–293143 with Region 16 (Region) of the National Labor Relations Board (Board) alleging that Trader Joe’s issued her a written warning, issued her a negative review, denied her a wage increase, and suspended and discharged her in retaliation for engaging in protected concerted activities and for filing a charge with the Board. On June 21, 2022, the Region issued the consolidated complaint in this matter, and on July 2, 2022, Respondent filed an answer thereto.1 (GC Exh. 1(g) and (i).) I heard this matter in Houston, Texas, on September 12–14, 2022. I afforded all parties a full opportunity to appear, introduce evidence, examine and cross-examine witnesses, and argue orally on the record. General Counsel and Respondent filed posttrial briefs in support of their positions. After carefully considering the entire record, including my ob- servation of the demeanor of the witnesses and the parties’ briefs, I make the following findings and conclusions. FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent is a nationwide corporation with a place of busi- ness at 2922 S. Shepherd Dr., Houston, Texas, where it operates a retail grocery store. In conducting its operations during the cal- endar year prior to the issuance of the complaint, Respondent derived gross revenues in excess of $500,000 and purchased and received goods valued in excess of $5000 directly from points outside the State of Texas. Respondent admits, and I find, that it 1 Counsel for General Counsel (General Counsel) requested to amend par. 9 of the consolidated complaint to allege a violation of Sec. 8(a)(4) of the Act. Because par. 8(c) sets forth the alleged factual basis for a violation of Sec. 8(a)(4), I granted the amendment over Respondent’s counsel’s objection regarding timeliness. (Tr. 9, 10.) Respondent re- newed its objection in its posthearing brief, which I decline to grant. “A judge has wide discretion to grant or deny motions to amend complaints under Sec. 102.17 of the Board's Rules and Regulations.” Bruce Packing Co., 357 NLRB 1084, 1085 (2011). In determining whether that discre- tion has been properly exercised, the Board evaluates (1) whether there was surprise or lack of notice, (2) whether there was a valid excuse for the delay in moving to amend, and (3) whether the matter was fully liti- gated. Stagehands Referral Service, LLC, 347 NLRB 1167, 1171–1172 (2006) (posthearing amendment denied); CAB Associates, 340 NLRB 1391, 1397–1398 (2003) (midhearing amendment granted). The first and third factors weigh in favor of granting the amendment in this case. has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. (GC Exh. 1(g) and (i); Jt. Exh. 1.)2 Based on the foregoing, I find that this dispute affects com- merce, and the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES FACTS Background The allegations in the complaint arose in Respondent’s store number 426 in Houston, Texas. Respondent uses the nautical terms of crew member for employees, mate for assistant store manager, and captain for store manager. (Tr. 32.) Store Manager/Captain David Fuller (Fuller), who has held that position since 2012, supervises approximately 10 assistant store managers/mates and 100 employees/crew members. (Tr. 464, 465, 466.) Between 2 and 4 assistant managers are working at once, as shifts overlap. (Tr. 466.) Fuller reports to Regional Vice President Liz Hancock (Hancock), who oversees Respond- ent’s stores in Texas. The store managers report directly to her. (Tr. 284.) She is regularly involved with hiring individuals for or promoting current employees into assistant manager and man- ager positions. She is not involved in hiring employees and is seldom involved in the discipline of employees, which is typi- cally performed by the store manager and assistant managers. (Tr. 285; Jt. Exh. 1.) Hancock visits each of the 19 stores she oversees approximately once per quarter, introduces herself dur- ing huddle/staff meetings, and occasionally speaks directly with employees. (Tr. 293, 295.) Respondent maintains its employee files in an electronic pro- gram called Dayforce. Employees’ time and attendance, payroll, supervisor notes, and other documents such as evaluations and discipline are entered or uploaded into Dayforce. (Tr. 287; Jt. Exh. 3.) Employees access Dayforce through a mobile applica- tion or an internet site. (Tr. 288.) Employees clock-in using a timeclock that is connected to Dayforce in the office area of the store, referred to as the bridge. (Tr. 289.) A computer at the bridge is available for all employees to access Dayforce and other company information, such as the employee handbook, weekly bulletins, and an internal email system. (Tr. 529.) The weekly bulletins, which included information about COVID-19 protocols, were printed and posted in a bulletin notebook, the breakroom, and other posting locations. (Tr. 530.) Safety proto- cols were also maintained in a safety notebook kept at the bridge. (Tr. 531.) Respondent emphasizes to its employees that its marketing Respondent was given notice of General Counsel’s intent to make the amendment in a prehearing conference call and the consolidated com- plaint contained the factual allegations necessary to support the legal conclusion amended into the complaint at hearing. There is no evidence that Respondent was prejudiced by the amendment as it had the oppor- tunity to fully litigate the matter, and did so, after the amendment was granted at the outset of hearing. See also Rogan Bros. Sanitation, Inc., 362 NLRB 547, 549 (2015); Amalgamated Transit Local 1498 (Jefferson Partners), 360 NLRB 777, 778 fn. 7 (2014) (mid-hearing complaint amendment properly granted, as issue “was fully litigated from that point forward”). 2 Abbreviations used in this decision may include: “Tr.” for hearing transcript; “GC Exh.” for the General Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the Gen- eral Counsel’s brief; and “R. Br.” for Respondent’s brief. TRADER JOE’S strategy is to be a friendly neighborhood store and requires its employees to provide customers with a positive, or as Respond- ent calls it, a “Wow!” experience. (Tr. 420; Jt. Exh. 7, p. 4.) Re- spondent’s employee rules allow for discipline for “[f]ailing to treat a customer, crew member, or any other member of the pub- lic with courtesy and respect.” (Tr. 153, 421; Jt. Exh. 7, p. 6.) Respondent’s emphasis on maintaining a friendly atmosphere within its stores is reflected in 5 of the 11 criteria on its employee evaluation form which specifically requires positive interactions with customers and fellow employees. (Tr. 421; Jt. Exh. 2.) Re- spondent also maintained an open-door policy. (Tr. 420; Jt. Exh. 7, p. 5) Charging Party Jill Groeschel (Groeschel) was aware of these policies and expectations. (Tr. 151–155.) Groeschel worked at store 426 for almost 8 years before her discharge on April 8, 2022. Groeschel worked an early shift starting at 5 a.m. and leaving at 11 a.m. or 12 noon. (Tr. 33.) Between 5 a.m. and 8 a.m. when the store opens, the employees are assigned to unload the delivery truck, restock shelves, and clean the store. (Tr. 33, 34.) During the 2 to 3 years before Groeschel’s discharge, she assisted in unloading the delivery truck by operating a pallet jack3 to move pallets stacked with merchandise to the appropriate aisle in the store. (Tr. 38, 39, 150.) She also assisted in moving merchandise using metal roll- ing carts and hand/appliance dollies. After positioning the pal- lets, she helped other employees stock shelves, store extra mer- chandise in the back room, and cleanup trash and empty card- board boxes before the store opened. (Tr. 48, 151.) After the store opened, Groeschel performed various tasks, including ush- ering customers to a checkout stand, checking out customers, working in an assigned department, and various other tasks as instructed. (Tr. 151.) Groeschel was known to regularly speak loudly. (Tr. 584.) Credibility Throughout the decision, my credibility analysis relies upon a variety of factors, including, but not limited to, the witness’s de- meanor, the context of the witness testimony, the weight of the respective evidence, established or admitted facts, inherent prob- abilities, and reasonable inferences that may be drawn from the record as a whole. See Double D Construction Group, 339 NLRB 303, 303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness are not likely to be an all-or-nothing determination; therefore, I may believe that a witness testified credibly regarding one fact but not on an- other. Daikichi Sushi, 335 NLRB at 622. Testimony from current employees tends to be particularly reliable because it goes against their pecuniary interests if they are testifying against their employer. Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961); Gate- way Transportation Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink Division, 197 NLRB 489, 491 (1972). In this case, all employee witnesses either testified on the behalf of Respond- ent or were no longer employed with Respondent. Therefore, I considered their motivations based upon their circumstances. I note my reasons for crediting or not crediting witnesses’ testi- mony within the discussion of the facts. Where no reasonable conflict in the evidence exists, I state my findings without 3 A pallet jack has 2 forks that go under the pallet, then the operator pumps the jack to lift the pallet off the ground. Pallets of heavier mer- chandise, such as beverages, were estimated to weigh as much as 1000 specific discussion of credibility issues. Changes Caused by the COVID-19 Pandemic Most of the witnesses testified to uncertainty and stress in their workplace caused by the COVID-19 pandemic. (Tr. 52, 242, 422, 566.) Management and employees were concerned about the situation. (Tr. 426.) Respondent implemented numerous safety measures including mandatory mask use, social distanc- ing, limiting the number of customers in the store, senior only shopping hours, installation of plexiglass, enhanced cleaning regimens, flexible leave policies, etc. (Tr. 50–51, 243, 474, 475.) A list of the updated protocols was published in the weekly bul- letin under “Maintaining a Healthy Workplace.” (Tr. 302.) Bul- letins are sent to the store email address to which all employees have access and were printed out and posted in the store. (Tr. 302, 303.) During the pandemic, Respondent changed from maintaining a hardcopy safety notebook to maintaining it online. Employees were notified of this change in the bulletin, but em- ployees were not required to access the safety notebook and there was no other established method of delivering this information to employees beyond what might be mentioned at staff/huddle meetings. (Tr. 305–306, 309.) Employees’ duties were adjusted as the safety measures changed. For example, during the period that the store offered senior shopping hours, limited the numbers of shoppers in the store, and required mask wearing, Groeschel was often assigned to manage the flow of customers coming into the store and re- mind them that a mask was required. (Tr. 36, 37, 159, 160.) Cus- tomers expressed their frustrations with all the changes caused by the pandemic, but Groeschel did her best to pacify their con- cerns in most situations. (Tr. 51–53.) Management recognized Groeschel’s positive interactions with customers and thanked her for her work “at the door” during this time. (Jt. Exh. 2, p. 13.) Groeschel had several conversations with employee Rita about the lack of COVID-19 safety protocols at the outset of the pandemic as compared to where Rita’s son worked. (Tr. 657.) On about June 16, 2020, through a telephone conversation with Rita, Groeschel learned that a person, who had been on a medical leave since May 27, had spent 90 minutes, shopping, visiting, and performing some of his usual work tasks in the store on June 14, 2 days before testing positive for COVID-19. (Tr. 54, 161, 217–219, 471; Jt. Exh. 8.) Rita expressed concern that employ- ees be given notice of possible exposure. Groeschel suggested that she tell Fuller about her concerns. A few minutes later Rita called Groeschel and explained that Fuller did not believe he could take any action due to privacy reasons. (Tr. 55, 161.) When Groeschel went to work, she learned that a Dayforce notice had been sent to all the employees on June 16, stating that an employee who last worked on May 27 had tested positive. Management also provided the same information at a huddle meeting that Groeschel attended. (Tr. 56; GC Exh. 2.) Groeschel was concerned because there was no mention of his June 14 visit to the store. (Tr. 56, 160.) She expressed her concerns with an assistant manager, who said he would discuss it with Fuller. (Tr. 56, 217, 218.) She was later told that Fuller would notify all the employees that worked on June 14 that someone who had been in the store that day had tested positive. The next day during the huddle meeting, Fuller finally explained all the circumstances to the employees. Employees expressed concern and one employee lbs. Once the pallet is elevated, it is moved by pulling on the handle of the jack. Often those operating a pallet jack walk backwards or walk for- ward by holding onto the handle behind their backs. (Tr. 38–40.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 who had a family member with significant health issues quit that day because of concerns caused by the lack of transparency. (Tr. 58, 162, 163.) Still concerned about how the information was shared with employees, Groeschel spoke to employee Rita about whether she should send a letter to Human Resources. Rita asked Groeschel not to use her name in the letter, but believed that Groeschel re- ferred to her “anonymously,” meaning that management most likely knew that Groeschel was referring to her in the letter.4 (Tr. 651, 652, 660, 661.) Groeschel emailed a letter to human re- sources (HR) Officer High on June 25, 2020. (Tr. 59, 163, 296; Jt. Exh. 8.) The letter set forth Groeschel’s understanding of the situation and expressed concerns that the employees receive ac- curate information about this safety issue. Groeschel’s letter was forwarded to Regional VP Hancock who called and discussed the issues with Groeschel on June 26. (Tr. 59, 164, 296.) Based upon a suggestion made by Groeschel during that phone call, fu- ture notices of COVID-19 positive cases were sent via the Day- force email system and text messages to all employees of the store. The notices contained more specific information about ex- posure if necessary. (Tr. 61, 297, 470; Jt. Exh. 9.) Groeschel voiced her concern that she might be retaliated against for send- ing the letter and discussing it with Hancock. (Tr. 301.) On June 30, 2020, Groeschel sent Hancock an email memori- alizing their telephone discussion and raising additional con- cerns/suggestions about COVID-19 protocols. Because she was concerned about retaliation, Groeschel closed the email by stat- ing: “I understand from you that my letter to Trader Joe’s was well received and appreciated. I understood that Trader Joe’s will not harass, harm, or penalize me for addressing concerns re- lated to speaking out about a Covid-19 pos[i]tive Crew Mem- ber.” (Tr. 60, 165, 166, 425; Jt. Exh. 9.) On July 3, 2020, Hancock responded to Groeschel by email again thanking her for her concerns and assuring her that the company’s changing COVID-19 protocols were in line with the “[Center for Disease Control] (CDC) and local government agencies as well as other scientific experts.” Hancock encour- aged Groeschel to reference the weekly “Bulletin” published by Respondent. (Jt. Exh. 9.) Hancock then forwarded the email chain between her and Groeschel to Fuller. (Tr. 363, 472; Jt. Exh. 9; GC Exh. 30.) After that, employees received both a Dayforce notice and a group text from Fuller when positive COVID-19 cases were reported. (Tr. 61; GC Exh. 2.) Groeschel’s Disagreement with a Maskless Customer and Re- quests for Masking requirements In about September 2020 while the mask mandate was in ef- fect, Groeschel came across a customer who was not wearing a mask. (Tr. 147, 186, 221.) Groeschel avoided the customer at first, but they crossed paths as the customer was exiting the store. Groeschel told the customer that she was selfish for not wearing a mask and that she was not welcome there. (Tr. 147, 186.) As- sistant Manager Shawn heard the disagreement and recognized Groeschel’s voice, but he did not discuss the situation with Groeschel before she left work. (Tr. 568; R. Exh. 2.) A while later, the customer called the store and complained that several 4 Rita avoided answering the question of why she did not want Groeschel to use her name in the letter by simply repeating that she just did not want it to be used. (Tr. 651, 660.) I note that Rita never stated in communications to management or at hearing that she disagreed with the complaints in Groeschel’s 2020 letter, just that she did not make com- plaints herself and that she did not want to be identified in Groeschel’s employees approached her in the store to offer her a mask and that she was harassed by an employee, when she was medically exempted from wearing a mask. (R. Exh. 2.) Groeschel testified that Shawn later addressed the issue with her, but Shawn testified that he did not address it with Groeschel but discussed and gave a statement about it to Fuller. (Tr. 580.) Groeschel testified that she explained to Shawn that she was acting out of fear, and Shawn told her to just not engage maskless customers. (Tr. 147.) Fuller also spoke to Groeschel and told her to not let maskless customers get to her and to disengage from them. (Tr. 147.) Groeschel was not disciplined nor was this incident noted in Dayforce. (147; Jt. Exh. 3.) Fuller sent an email to Hancock de- tailing the incident and his conversation with Groeschel and at- tached Shawn’s statement. Fuller ended the email stating: “I do not expect this to happen again but wanted you to know about it.” (Tr. 543; R. Exh. 2.) On November 12, 2020, Fuller sent an email to Hancock. The email opens stating: “Jill, who you’ve spoken with before, called ‘corporate’ and asked for ‘the person who is the head of Trader Joe’s Covid response team.’” (Tr. 488; GC Exh. 26.) Fuller went on to detail his conversation with Groeschel about her belief that customers should be turned away if they refuse to wear a mask. In about January 2021, Groeschel had spoken with Fuller about putting some sort of sign on the entrances asking custom- ers to wear a mask, but Fuller declined. (Tr. 219–220.) Groeschel testified that there was no way of knowing whether customers were following CDC guidelines to only enter the store maskless if they were fully vaccinated, which gave rise to her concerns over maskless individuals. (Tr. 222, 473.) Groeschel Raises Concerns for Assistant Managers On January 29, 2021, Hancock emailed Fuller asking him to speak to Groeschel about the pay and benefits that the assistant managers received. This was in response to a communication from Fuller that Groeschel might circulate a petition about how pay increases put in place during the pandemic had not applied to assistant managers. (Tr. 355–356, 487; GC Exh. 25.) Fuller responded to Hancock’s email stating: I wanted to make sure you were aware that she might do some- thing like this regardless of my interaction as Jill feels that her calling is to stand up and be an advocate for others who she feels are being wronged or slighted. I didn’t want you to be blindsided by a call from [Respondent’s Chief Executive Of- ficer Dan Bane]. (GC Exh. 25.) There is no evidence that Groeschel took any action beyond her conversation with Fuller. The Removal of COVID-19 Safety Protocols Starting in about May 2021, as more people became vac- cinated against COVID-19 and governmental guidelines changed, Respondent began to roll back its COVID-19 safety measures. (Tr. 215–217, 340–343; Jt. Exh. 6.) Respondent com- plied with CDC, state, and local mandates, but did not follow voluntary recommendations. (Tr. 342, 343.) For example, Re- spondent no longer restricted the number of customers in the complaints. I do not credit Rita’s statement that she would have been comfortable making complaints in light of her refusal to answer why she did not want her name used. A logical reason would have been that she did not agree with Groeschel at that time. I find that was not the case, because after several opportunities to state her position, she continued to avoid answering the question. TRADER JOE’S store and customers were no longer required to wear masks. (Tr. 62–63.) On about July 15, 2021, employees and managers arrived at the store to find that maintenance employees had removed the plexiglass dividers at the checkout counters. (Jt. Exh. 6, p. 6.) Groeschel again spoke to other employees who were concerned about the change. When Groeschel asked Fuller about the situa- tion, he told her that he did not know that the plexiglass was go- ing to be removed that night. (Tr. 483.) Employee Benton testi- fied that management’s response to Groeschel was to brush her complaints off. (Tr. 273.) Employee Benton also spoke directly to Fuller about the re- moval of the plexiglass and Fuller said he would contact head- quarters about it. (Tr. 271.) Fuller never got back to him and Benton let the matter drop feeling that Fuller was just blowing him off. (Tr. 271.) Fuller asked Hancock if the plexiglass could be reinstalled, but she declined the request saying that the com- pany had decided to discontinue its use. (Tr. 434–435.) Fuller admitted that he did not always know when protocol changes would be made, but told employees that changes were on the way. (Tr. 480–481.) Groeschel spoke with most of the 15 coworkers present during her shifts about their concerns with the removal of safety precau- tions, the COVID-19 positivity rate in their community, and their individual concerns about transmitting the illness to those with underlying health conditions, the elderly, and those too young to be vaccinated at that time. (Tr. 63–65, 173, 245.) Some employ- ees expressed feelings that Respondent did not care enough about the risks they were taking to Groeschel and to their super- visors. (Tr. 67, 173, 266–267.) Opinions differed on the need for the various safety recommendations, and Fuller stated that most employees raised some concern about various protocols during the pandemic. (Tr. 345, 490–491.) These conversations reoc- curred throughout the period during which Respondent removed the safety protocols. (Tr. 68.) Employees, other than Groeschel, also expressed their concerns to management especially about the removal of the social distancing stickers and the plexiglass at the checkout counters. (Tr. 69, 70, 493–497.) For example, em- ployees Bernard, Scott, Janet, and Xavier raised specific COVID-19 safety concerns similar to complaints raised by Groeschel, but none of them were issued poor evaluations or dis- cipline and there is no evidence that their complaints were com- municated to regional or corporate management. (Tr. 538–540, 549.) Only Groeschel’s complaints resulted in Fuller regularly discussing her with Hancock, who also forwarded her complaints to higher management officials.5 (Tr. 550.) On July 15, Fuller sent an email to Hancock detailing a con- versation with Groeschel. The email subject line states: “crew feedback on plexi.” The body of the email states: Just wanted to let you know that you may get a letter or call from Jill and/or others. Jill is being very vocal about the plexi being removed this morning. Unfortunately I didn’t realize it was coming down so hadn’t prepped her for it. I’ve been telling everyone that more changes are coming although we don’t al- ways know when we just know change happens. Anyway, Jill feels that this is a decision made by suits in a com- fortable office that don’t know what it’s like to work in the 5 On about July 3, 2021, Hancock forwarded her email communica- tions with Groeschel to Fuller and the human resource generalist for Re- spondent’s Texas stores at that time. She also had a phone conversation store. That it separates us blue collars even more from them. It makes her feel that she is working for a company that doesn’t care about its employees. And, she will for sure be wearing a mask until she feels safer. She talked about not being paid if she gets sick, etc. She went on about the Delta variant and much much more. The conversation ranged from, politics and the need for government mandates to the 60s and the war. She was wearing a paper mask and I asked her if it was two- ply as that’s the safe way and she said no it’s only one-ply but I feel safe wearing it and I can breathe easier—seems a little inconsistent to me but logical to her. I talked about how the country being led by CDC is moving on from the pandemic even though there is another variant however I’m really not sure how much she heard although she thanked me for listen- ing. I just wanted you to know so you wouldn’t be blindsided in case she phoned. (Tr. 353; GC Exh. 24.) As Respondent removed safety measures, Fuller discussed changes in protocol at huddle meetings when he was aware they were upcoming or after they occurred. (Tr. 267–268, 481–482.) At one of the huddle meetings on about July 27, 2021, after the removal of the plexiglass, Fuller told the employees that Re- spondent was working to return to pre-pandemic policies. (Tr. 482–483.) Groeschel asked him what the company was going to do to protect them, and he responded that they still had their masks. (Tr. 75, 175, 176, 267, 339.) Employee Benton raised concerns and Fuller’s response was to list the safety measures that were being removed, the cost of having implemented them, and that Respondent was complying with CDC and the State of Texas’ safety requirements. (Tr. 75, 177, 244, 245, 246.) After the huddle meeting, Fuller approached Groeschel and apologized for being rude to her during the meeting. She told him that she had “a lot of crew members come up to me and really expressed deep thanks that I spoke up for them and expressed how they were feeling.” (Tr. 76.) Employee Benton, who worked at the store for about 6 years before leaving in 2021, testified that after this huddle she had a one-on-one conversation with Fuller. She told him that the em- ployees, not the customers, should be allowed to decide whether they remained socially distanced. (Tr. 247.) Fuller responded that it would not fare well for her if she made that choice. (Tr. 247, 251.) After a huddle meeting on July 27, Fuller sent Hancock an email which stated: In the huddle this morning, Jill pushed back very hard about [how] Trader Joe’s doesn’t care about us again. As I interacted through her statements, I believe the main issue is the plexi- glass. Several other crew members said that customers often ask why we took it down. (Tr. 485; GC Exh. 21.) The email went on to explain that some other local grocery stores still had plexiglass barriers up and Fuller asked if the plexiglass could be reinstalled. Hancock spoke to Fuller and denied his re- quest to reinstall the plexiglass. (Tr. 331–338, 490, 535–536.) Differing opinions about safety concerns persisted amongst customers, employees, and management as the pandemic pro- gressed and with changes in the safety protocols. (Tr. 77.) While with Fuller about her conversation with Groeschel, the suggestion of tex- ting, and other COVID-19 protocols. (Tr. 298, 299; Jt. Exh. 9.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 most of the employees were still electing to wear masks, Fuller announced at a huddle meeting that he did not want to “hear about any bullying towards crewmembers that chose to remove their masks.” (Tr. 77.) Groeschel’s August 2021 Evaluation and Discussion of Safety Protocols Respondent evaluates its employees at the beginning and mid- dle of the calendar year. (Tr. 167, 517.) The store manager and assistant managers are involved in completing the rating chart for each employee. (Tr. 168.) Employees, who meet the required expectations in all categories, are granted a merit wage increase, which is noted on the review by the inclusion of an effective date for the wage increase. (Tr. 201, 517.) For each of the 13 evalua- tions Groeschel received between January 2015 and February 2021, she scored as meeting expectations in all assessed catego- ries and was granted a merit wage increase each time. (Jt. Exh. 2.) Even when she met expectations, she was counseled on areas in which she could improve. (Tr. 155–156.) In February 2021, Groeschel received a meets expectation evaluation and a merit raise. The evaluation specifically commended her for her work with customers during the height of the pandemic restrictions in 2020. (Jt. Exh. 2, p. 13.) Groeschel’s positive interactions with customers had been recognized before. (Tr. 520.) On August 8, 2021, Groeschel was issued her semiannual per- formance evaluation that she received on about September 1. (Tr. 78; Jt. Exh. 2, p. 14.) Respondent informed the employees that they would not receive merit raise increases because they re- ceived hazard pay during the pandemic. (Tr. 78–79.) Fuller told Groeschel that all the employees’ reviews were hypercritical be- cause they would not affect their raises. (Tr. 79.) Despite that statement, the record reflects that only 12 employees received negative evaluations, which was not significantly higher than other evaluation periods. (GC Exh. 9.) Groeschel’s evaluation complemented her work with customers and with most cowork- ers. Fuller challenged her to interact more positively with all her coworkers.6 (Tr. 519.) Groeschel took exception to this require- ment stating that she collaborates to get work done and is re- spectful with all her coworkers, but she found the company’s ex- pectations that she be more friendly with people whose beliefs differ, such as making racist statements7 in her presence, an un- fair expectation. (Tr. 80–81, 83, 179.) Fuller also cautioned her about gossiping and Groeschel told him that she read an article that attributed gossip in the workplace with poor communication from management and that she believed that was happening in their store. (Tr. 82.) Groeschel also discussed her concerns about the removal of safety precautions such as social distancing especially for young children that were not eligible for vaccinations. Groeschel be- lieved that Fuller listened to the safety concerns they discussed during the evaluation meeting, because after this discussion the social distancing stickers were replaced. Also, Fuller made a note 6 Respondent’s counsel questioned Groeschel about her willingness to work with other employees and to be a team player. None of the evi- dence elicited from Groeschel and other witnesses established that Groeschel was unacceptable in this regard. (Tr. 168–172.) Groeschel ad- mitted that there were some employees with which she strived to main- tain a cordial working relationship but did not engage in a more friendly manner. (Tr. 174.) I find Groeschel’s responses to these questions sup- ported her overall credibility, because I find it unlikely that someone working with 100 or more coworkers would genuinely be friends or en- gage them all in the same manner. Indeed, the witnesses called by in the captain’s log about having customers remove their chil- dren from the cart at the checkout counters to maintain social distance. (Tr. 84–85: GC Exh. 5; Jt. Exh. 6, p. 7.) Continued Roll Backs of COVID-19 Protocols and Continued Complaints Not long after Groeschel received her evaluation, Fuller told her that the social distancing stickers were being removed again. (Tr. 86.) Fuller said that a customer raised a complaint about the use of the stickers. (Tr. 433–434.) Groeschel stated that it ap- peared to her that he was being considerate of everyone’s con- cerns except for the employees who were still worried about the health risks. She again asked him to communicate the change to all employees, but he stated he was only telling the employees who had raised concerns with him. (Tr. 86.) Groeschel spoke with other employees about their mutual fears and confusion about how to deal with customers without social distancing. (Tr. 88; Jt. Exh. 6, p. 7.) Groeschel again complained about management’s lack of communication with employees about changes to the COVID-19 safety protocols. (Jt. Exh. 6, p. 6.) Groeschel felt that the em- ployees’ ongoing concerns were falling on deaf ears and that management cared more about the customer’s experience than the employees’ safety, especially considering the spikes in COVID-19 infections in 2021. (Tr. 71–73.) One employee that Groeschel spoke to about these safety concerns was Employee Preston, who worked at Trader’s Joe for 10 years prior to quitting in September 2021 over concerns of contracting COVID-19. (Tr. 255.) On August 31, 2021, Groeschel emailed a letter to Respond- ent’s chief executive officer and president, but never received a response from them. (Tr. 181.) In the letter, Groeschel talked about her experiences with working during the pandemic up to that point. Then she stated, “I understand you are running a busi- ness and the business needs to be profitable, but at whose ex- pense? Your crew members are struggling.” She goes on to ex- plain several concerns such as unvaccinated customers, delayed shipments, crew members calling off from work due to stress, and hostile customers. She then suggests that Respondent take actions like another large employer was doing at that time. (Tr. 74; GC Exh. 4.) The record contains no evidence that Hancock or Fuller was aware of this letter. Conflict Between Groeschel and Employee Lynn L. On September 7, 2021, shortly before the store opened at 8 a.m., the employees were clearing the aisles and employee Lynn L. was using a large push broom to sweep the store. Groeschel and other employees were breaking down empty cardboard boxes and taking them to the recycling baler. (Tr. 143, 182; Jt. Exh. 3.) Lynn L. testified that she had a habit of sweeping the debris underneath a lip on the front of the baler. (Tr. 701, 707.) Groeschel and at least one other employee had asked her not to put the debris there because they needed to access the baler. (Tr. Respondent clearly did not express friendly attitudes toward working with Groeschel, but the record does not reflect any repercussions by Re- spondent against them for their attitudes towards her. Groeschel denies raising her voice at anyone other than employee Lynn L., whom she cursed at. Groeschel admits that she has a louder voice than typical. 7 I note that there was no denial that some employees made such statements and that Fuller had discussed this issue with Groeschel. I also credit Groeschel’s statement that she chose not to “tattletale” on her coworkers for such comments because she believed it would affect their livelihoods. (Tr. 80–81.) TRADER JOE’S 143, 270, 707, 708.) Groeschel recounted that while approaching the baler she stepped in the debris causing dust to get into her eye. Frustrated by the situation she loudly complained to Lynn L. that she had told her many times not to put the dirt there and that it had gotten into her eye. Lynn L. replied loudly that she was lying about getting it in her eye. In response, Groeschel called Lynn L. a “selfish bitch.” (Tr. 143, 582, 701.) The two assistant managers on duty heard Groeschel’s and Lynn L’s al- tercation and immediately addressed it with her. Groeschel apol- ogized for her actions. Groeschel also spoke to Fuller and apol- ogized about the situation the next time she saw him. He asked her to apologize to Lynn L. (Tr. 144.) One of the managers noted the incident in Dayforce, but no further actions were taken against either employee at that time. (Tr. 143, 144; Jt. Exh. 3.) Sometime after that Groeschel said that Lynn L. came to her and apologized, and they were cordial after that. (Tr. 145.) Groeschel’s Reaction to Not Being Granted Permission to Go Home On October 12, 2021, Groeschel worked from 5 a.m. to about 9 a.m. before she started having stomach cramps. Noticing that the store was not busy she went to the bridge and asked assistant manager Shawn if she could leave early without telling him that she felt ill. (Tr. 88–89, 195–196.) Shawn told her that she would incur an attendance point if she left. She protested that he knew she was there every morning and worked hard and that she did not understand. He told her if she needed work to do, she could clean the restrooms. She decided to stay at work. Shawn’s testi- mony is consistent with Groeschel’s except that he contends that as she walked away she said something like, “[J]ust fire me then.” (Tr. 570.) Groeschel testified that she did not make this statement or at least does not recall it. (Tr. 90, 188.) Shawn did not speak to Groeschel or Fuller about this exchange or note it in Dayforce. As discussed below, he only spoke to Fuller about it after Fuller inquired about a customer complaint. (Tr. 89, 571.) Increase in Supervisory Notes About Groeschel’s Behavior and Comments On October 12, 2021, a manager wrote in Dayforce: “I spoke with [Grosechel] about allowing customers to stand at the sigcap when it is their turn at the register. Jill expressed concern about the safety of this. She said that she was sad about the situation. She told me the pandemic is still an issue. She said that she is disappoint that Trader Joe’s doesn’t care about (sic).” A second entry on that date states: “Jill was on anchor and ignored a cus- tomer in line who did not have a mask on. I was not able to speak with her today before she left. I saw her look up at the next per- son in line and then stop working as a cashier and start bagging for another crew member.” (Jt. Exh. 3.) On October 13, 2021,8 Groeschel started work before being administered the required COVID-19 symptoms screening by an assistant manager. According to Groeschel, it was more than an hour into her shift before Assistant Manager Jeff approached to ask the screening questions. Groeschel was in the process of breaking down a pallet of merchandise which required her to re- member what was in the boxes to compare it with the manifest. (Tr. 90, 91, 94.) Groeschel questioned the purpose of the health assessment after she had already been there for more than an hour. Jeff said that he had to do it, so she stopped her work and 8 Groeschel testified that this occurred on October 11, but Jeff’s entry places it as occurring on October 13. (Jt. Exh. 3.) I credit the written documentation over Groeschel’s recollection because nothing in her answered his questions. (Tr. 92, 184.) Both Jeff and Groeschel testified that most of the time there were two assistant managers on duty and one of them did the health assessments as the em- ployees clocked in. (Tr. 92, 476.) Groeschel testified that almost half of the time an assistant manager was not immediately avail- able before the employees started working, and the assessments were done later, like in this case. (Tr. 92, 183, 184.) Jeff testified that Groeschel was so intent on starting her work that it was regularly difficult to get her to wait long enough to do the health assessment, but that the other employees did theirs be- fore starting work. (Tr. 476; GC Exh. 19.) Jeff’s note in Dayforce states: Jill came in today and immediately started to pull pallets to help unload the truck. While wheeling a stack in the grocerie (sic) aisle I said to her that I need (sic) to give her a wellness check. Jill continued to push her 2 wheeler and said something I could not understand. I called her name again so she would stop and she turned around and said she was fine. I explained that I have to ask her the questions on the wellness check and she said that it doesn’t matter because we dont (sic) care about keepingthem (the crew) safe. She then stood there so I could ask the question. I credit Groeschel’s testimony that this conversation happened well into her shift. First, I note that Jeff stated that she immedi- ately started to pull pallets from the truck and that when he spoke to her, she was pushing a 2-wheeler. In both of their versions of this conversation she complained that the company was not re- ally concerned about their safety, which correlates with her stated reasoning that wellness checks done well into their shifts did not promote safety. (Tr. 227.) Fuller testified that employees that started at various times throughout the day sought out an assistant manager to complete the assessment on the work floor and the related paperwork was completed later. (Tr. 477–478, 532.) Assistant Manager Shawn testified that Groeschel often clocked in and started to walk to- wards where she needed to work and he asked the health assess- ment questions as she was walking, but always did the check. (Tr. 579.) If her conduct was the problem and not her complaint that the check was meaningless when performed well into the shift and that Respondent did not care about their safety, it begs the question as to why Jeff or Shawn never spoke to Groeschel about this conduct before she questioned Respondent’s safety protocols. (Tr. 565, 566.) Groeschel’s Verbal Counseling On October 14, 2021, Fuller approached Groeschel with As- sistant Manager Ellen and asked Groeschel if he could speak with her outside. Fuller said that he was upset with her for not responding when he greeted her earlier and for being rude to Jeff about the health assessment. (Tr. 185, 500–502.) She responded that she had said hello back, but he was walking away and did not hear her. She also explained her frustration with doing health assessments well into their shifts. (Tr. 95.) Fuller told her that she needed to rethink whether working for Respondent was a good fit for her. Groeschel had received constructive criticism from managers, but this situation felt threatening. (Tr. 95–96.) Groeschel told Fuller that she believed that the friction revolved around how leadership was handling COVID-19. (Tr. 95.) Fuller again told her she needed to rethink whether she should continue testimony indicated why she recalled the incident occurring on October 11. (Tr. 90, 91.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 working there. (Tr. 95.) Groeschel’s Written Warning On October 14, Respondent received the following customer complaint through a regional email address: I am still hoping to have a chance to work for your unique op- eration. Have applied so many times at that store and shop it! I am dedicated and reliable and honest and hard working and need to work. I was in the store Tues[day] morning and was waiting to check out when one of your lady workers was pass- ing me and stopped to verbally attack your crew manager and shouted: then fire me over and over! Here is someone who doesn’t appreciate that she is the lucky one and working! A real shame! (GC Exh. 29, p. 3.) Hancock forwarded the complaint to Fuller on October 14 at 10:58 a.m. and asked Fuller to look into it. (Tr. 502.) Fuller asked the assistant managers if they knew of the situation, and Assis- tant Manager Shawn described an interaction between him and Groeschel. (Tr. 502.) Fuller asked Shawn to make a report on the incident in Dayforce. On October 18, Assistant Manager Shawn made the following entry in Dayforce inadvertently indicating that it occurred on the 18th instead of the 12th: Today, I [Shawn] was passing by the registers and Jill (who was scheduled on register at the time) approached me and asked if she could leave early. I let her know she may if she wishes and that leaving early and coming in late would nega- tively impact her attendance and that we are holding everyone in the [store] accountable to any attendance issues. In front of some customers Jill then turned her back to me, walked off and said, “[W]ell then, why don't you fire me?” She proceeded to grab the next customer. I did not have a change to discuss the matter any further with her as I did not catch a moment with her before her shift ended. (Tr. 505, 507, 572, 573; Jt. Exh. 3; GC Exh. 29.) On October 19, 2021, Fuller and Assistant Manager Heather pulled Groeschel outside to discuss a customer complaint. (Tr. 98, 501, 510; GC Exh. 6.) Fuller told her that there was a cus- tomer complaint about her saying, “then you will need to fire me,”9 to Shawn, and that the company saw it as a serious matter. (Tr. 98, 99, 512; GC Exh. 6.) Groeschel denied recalling the statement and pointed out that she did not make a comment di- rectly to a customer. Groeschel also pointed out that she had de- cided to really perform well at work with a good attitude like Fuller directed her to do the prior week. The conversation ended, but Groeschel felt it was left unresolved. (Tr. 99.) Fuller sent an email to Hancock stating that Groeschel’s attitude was improved and that “she may have taken our conversation last week to heart at least for now.” (GC Exh. 31.) Hancock responded asking Fuller to call her. (Tr. 361.) Hancock told Fuller that she believed Groeschel needed to be redirected. (Tr. 362.) Hancock reviewed Groeschel’s file and then worked with human resources to draft the disciplinary 9 The record contains several variations of the wording that Groeschel used in response to Shawn, telling her she would accrue attendance points for leaving. I find no evidence that Respondent manufactured the customer complaint. Based upon the customer’s complaint and Shawn’s similar recollection of her comment, I find that Groeschel made a com- ment to that effect. She either does not recall making the flippant retort or denied making the statement for defensive reasons when confronted write-up issued to Groeschel based on the customer complaint. (Tr. 311, 349.) Hancock testified that her decision to issue the written warning was based on the entries in Dayforce about Groeschel’s disagreements with Lynn L. and Shawn and Fuller’s mention of her comment to the maskless customer even though it was not recorded in Dayforce. (Tr. 313, 315.) Hancock also considered a customer complaint documented in Dayforce in February 2017. (Tr. 429.) Hancock denied that Groeschel’s com- plaints about Respondent’s handling of COVID-19 protocols in- fluenced her decision to discipline Groeschel. (Tr. 431.) On October 21, Fuller forwarded the email chain he received from Hancock on October 14 containing the customer complaint to HR Manager Wei. (Tr. 503.) Wei then sent Fuller a “revised incident report.” Fuller responded that the incident report con- tained the wrong date, because Shawn’s notation in Dayforce that the incident happened “today” is inaccurate. (GC Exh. 29.) The incident report was corrected to reflect the October 12th date. Because there had not been an investigation of the com- plaint, Shawn had not written a signed statement about the inci- dent. HR Manager Wei asked that he write a statement, which he did and forwarded it to her on October 25. (Tr. 504.) On October 25, 2021, Groeschel was issued a written warning disciplinary report prepared by HR Manager Wei, based on the customer complaint. Fuller with Assistant Manager Heather spoke with Groeschel outside and gave her the report. Groeschel asked to see the customer complaint because she doubted that a customer, to whom she did not speak directly, would write a complaint. Fuller declined, and Groeschel asked if she had to sign the report when she did not know if it was true. Fuller told her that in place of signing it, she could write in “crewmember refused to sign,” which she did. (Tr. 100–101, 509.) The perti- nent part of the report states: Jill, you have recently been witnessed not providing a Wow customer experience. It was brought to our attention by a cus- tomer as well as a Mate that you had acted inappropriately on the sales floor. Your behavior was unacceptable and will not be tolerated. Crew members are expected to act in a professional manner at all times and provide a Wow customer experience. Immediate and sustained improvement is required. Any further incidents may result in further disciplinary action up to and in- cluding termination. (Jt. Exh. 4.) This was the only written discipline she received prior to her dis- charge. (Tr. 364.) Fuller had spoken to Groeschel about her con- duct with Lynn L. and in reacting to customers who did not wear masks. Fuller testified that Groeschel had a habit of approaching him when her conduct “may have fallen short of what was ex- pected of her.” In each of these situations she apologized for her conduct and understood it was not appropriate and no discipline was issued. (Tr. 513–515.) Groeschel Questions Whether her Discipline was a Result of her Safety Complaints and Continues to Raise Concerns About COVID-19 Policies Groeschel later learned that she could write a response to her and then stuck to that account. I note that Groeschel had a habit of ad- mitting to mistakes as she self-reported other conduct. Her testimony about numerous events over nearly a 2-year period shows that she typi- cally has good recall; therefore, her telling Shawn and Fuller that she could not recall something shortly after it occurred is inconsistent with her other testimony. Therefore, I credit Shawn and the customer com- plaint that she made a comment to that effect. TRADER JOE’S discipline and sent an email to Hancock on November 16, 2021. (Tr. 102, 103, 191; Jt. Exh. 6.) Groeschel’s 7-page letter dis- cusses her 2020 letter and her other conversations with manage- ment about COVID-19 safety procedures. Groeschel also re- counted her discussion with Fuller about her conversation with Shawn over filling out the health assessment mid-shift, her com- ments then that she felt she was being called out because she was vocal about changes in the safety protocols, and Fuller’s state- ments that she should rethink whether she wanted to work there. (Tr. 323) Hancock admitted that she learned from the letter that the employees were upset, because they were told that they could not ask customers to socially distance. (Tr. 322–323.) Groeschel questioned the amount of time between the alleged comment to Assistant Manager Jeff over asking to leave early and the cus- tomer complaint and subsequent discipline. Groeschel con- tended that the timing and circumstances led her to believe that the discipline issued to her was in retaliation for speaking out about safety issues, because it was unlike other times when man- agement spoke to her directly about her conduct. (Tr. 193, 194, 317–319.) Hancock responded by email that she would look into the situation and get back with Groeschel. (GC Exh. 8.) On November 17, Hancock forwarded Groeschel’s email to HR Manager Wei and Executive Vice President Morris. (Tr. 346; GC Exh. 22.) Hancock spoke to Morris and went through each point raised by Groeschel and asked for Morris’ advice in han- dling each issue. (Tr. 347.) On December 1, 2021, Hancock and Groeschel spoke via tel- ephone. Hancock told Groeschel that she authorized the disci- pline and that even if Groeschel did not remember it happening that way it does not mean that she did not make the comment. (Tr. 105–107; 190.) Groeschel spoke again about her and other employees’ safety concerns. She specifically mentioned the re- turn of the social distancing stickers and their removal again. Hancock understood that Groeschel was raising complaints for other employees. (Tr. 348.) Hancock told Groeschel that she in- structed Fuller to remove the social distancing stickers again, be- cause she had received a customer complaint where the customer contended that he was required to social distance due to his race. (Tr. 106, 107.) Later that same day, Groeschel sent Hancock another email discussing a situation where an employee had shared with Groeschel and Fuller that she felt uncomfortable working at a register with an unmasked employee working at the next regis- ter.10 (Tr. 104, 108; GC Exh. 8.) When an employee, who was wearing a mask but who Fuller knew was unvaccinated, started working next to the employee, Fuller moved the unvaccinated employee. He explained to the employee that the other employee was unvaccinated. Groeschel again questioned the inconsistency of information the employees were receiving because she had been told that management could not say who was or was not vaccinated. (GC Exh. 8.) Hancock spoke to Fuller before and after her December 1 con- versation with Groeschel and discussed all the issues raised by Groeschel. (Tr. 326–327, 330, 359, 360; GC Exh. 23, 27 and 28.) Hancock wrote a summary of her interactions with Groeschel and listed 14 areas of concern raised by Groeschel. (GC Exh. 23.) 10 Fuller did not deny that this situation occurred or whether any fol- low-up found the contents of the email to be inaccurate. 11 During this period Groeschel was on approved vacation for 2 weeks at the end of December 2021. During her vacation she received notices from work that an employee had tested positive almost daily. She con- tacted Fuller and asked if she could remain on leave until the COVID-19 Seven of these were about COVID-19 protocols and two others focused on gossip amongst employees and discrimination issues. Hancock concluded these notes by stating: “I again mentioned that I wanted her to be a great [employee] and part of a great store, but was concerned that she would be able to participate positively. She said she wanted to consider her options. . . .” (GC Esh. 23, p. 3.) Groeschel’s Attendance Between each of the bi-annual evaluations from February 2017 until February 2020 Groeschel’s Dayforce file notes 2 to 4 attendance occurrences. After the start of the pandemic, Groeschel accrued the following number of attendance occur- rences in the listed evaluation periods: February 2020 to August 2020 - 11 August 2020 to February 2021 - 10 February 2021 to August 2021 - 14 August 2021 to February 2022 - 1011 On December 8, 2021, Groeschel asked an assistant manager if she could go home early because her husband had an emer- gency. (Tr. 112.) The next day Fuller asked if her husband was okay, and then Groeschel explained that her husband was not ill but had a work emergency and needed a car to go to work. This was noted in her employee Dayforce file. (Tr. 113; Jt. Exh. 3.) All previous Dayforce notes about attendance were short expla- nations (i.e., left early, late, absent, called off). In March 2022, after her February evaluation issued, two more longer descrip- tions about why she left early were noted in Dayforce. Groeschel’s February 2022 Evaluation On February 10, 2022, Groeschel met with Fuller and Assis- tant Manager Ellen about her semiannual evaluation. (Tr. 114; Jt. Exh. 2, p. 15.) Before giving her the written evaluation, Fuller discussed several issues with her including her written warning, the situation when she swore at a coworker, complaints that she frequently walked away from the cash register when assigned there, and that she had poor attendance. Groeschel raised objec- tions to these complaints. She noted that she had self-reported the incident of cursing at a coworker and apologized. She ex- plained that she only left the cash register when they were not busy to collect the red shopping hand baskets to prevent people from tripping on them. Fuller agreed to consider having the bas- kets regularly collected. (Tr. 116.) She also explained that her absences had been excused based on COVID-19 protocols. (Tr. 116.) Fuller gave her the evaluation form which lists her as needs improvement in the following categories: -Creates energy and excitement for customers. Includes the customer in the fun. -Adjusts to store needs. Easily works wherever needed. -Works as directed. Builds knowledge over time. Collaborates and is a team player. -Supports the team by being reliable. Has availability that sup- ports the customer experience and store needs. -Does the right thing even when no one is looking. Demon- strates good character by treating others with courtesy and cases subsided. Fuller granted her request. (Tr. 114.) She returned to work on about January 11, 2022, for a few days but then caught COVID- 19 and was off work sick for a week. (Tr. 114.) Excused absences such as vacation days and sick leave are not noted in the Dayforce printout in evidence. (Jt. Exh. 3.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 respect. -Works to continuously improve performance. (Jt. Exh. 2, p. 15.) Fuller did not provide Groeschel with direction on how to im- prove in these categories. (Tr. 118.) This was the last time that Groeschel’s conduct was discussed with her prior to her suspen- sion and subsequent discharge. (Tr. 454.) About a week later, Groeschel approached Assistant Manager Ellen about her evaluation. Ellen told Groeschel that she could not address the evaluation but did discuss her attendance. Ellen told Groeschel to make entries in Dayforce about her attendance. Groeschel suggested that other employees may not know this ei- ther. Ellen agreed to tell employees at huddle meetings and fol- lowed through with that commitment. (Tr. 119–120, 202.) Groeschel files NLRB Charge On February 23, 2022, Groeschel filed the initial charge in this matter. She spoke with her coworkers about the charge and asked if they would be willing to be involved in the investigation of the charge. (Tr. 120, 121.) Groeschel denied telling other employees that she was attempting to get Fuller fired, but that she believed she was disciplined and did not get a raise because she spoke up about safety issues around COVID-19. (Tr. 122.) Groeschel’s Discussion About the 401(k) Plan Around this same time, Groeschel learned that some employ- ees had filed a lawsuit about their 401(k) plan with Respondent. (Tr. 123.) Groeschel contributed to a 401(k) plan with Respond- ent (Tr. 231.) She decided to speak to two long term employees at the store to see if they had any information. (Tr. 202.) The first employee to whom she spoke said that he did not know about the lawsuit. She then asked employee Julia,who had a background in finance, if she knew about the lawsuit. Julia said the employ- ees were upset because they just did not understand the tax im- plications of withdrawing from their 401(k) plans. Groeschel ex- plained that the lawsuit was not about that issue but was about the fiduciary duty of the plan managers and the amount of fees charged. Julia continued to be irritated by Groeschel’s questions and expressed her feelings about fund managers being paid a fair amount.12 Groeschel decided to not press the conversation and walked away; later she apologized to Julia for upsetting her. (Tr. 123–125, 203, 625.) No one from management approached Groeschel about her conversation with Julia. Employee statements regarding Groeschel Starting on about March 22, 2022, Hancock received emails from employees concerning Groeschel.13 Hancock did not solicit the emails from the employees and had never received emails like that before. (Tr. 436, 437.) Hancock never questioned the employees about what prompted them to reach out to her even when she spoke directly to two of them. (Tr. 456, 457.) Fuller 12 Julia’s recollection of this conversation is discussed below. 13 I note that the Respondent did not have the benefit of any additional information about which these employees testified at hearing when it made the decision to discharge Groeschel, because Hancock did not in- terview most of those who submitted statements. As discussed further below, Hancock spoke to two of these employees during the climate sur- vey at their requests, but Hancock’s notes of these interviews show that she did not further investigate their statements about Groeschel. There- fore, I find any information derived from testimony which is beyond what the record reflects was in Respondent’s knowledge prior to Groeschel’s discharge is not relevant in determining whether Respondent discharged her in violation of the Act. denied soliciting statements from employees about Groeschel or ever handling any of the statements but testified that he told one employee that if the matter involved him then she could com- municate about it with Hancock. (Tr. 546.) On March 22, 2022, Hancock received an email from em- ployee Elizabeth about Groeschel that among other things al- leges that Groeschel bullied and spoke harshly to employees call- ing one employee a “fucking bitch,” and came close to running over employees with the pallet jack. The email goes on to state that Groeschel was speaking to numerous employees in the stor- age room “about how she is working with HR to get [Fuller] and [Hancock] fired.” (GC Exh. 7, p. 1.) In response, Hancock for- warded the email to Respondent’s Head of Human Resources Laurie stating: “I would like to get your input on my next steps on the situation at 426 with CM Jill Groeschel. The email below came today from another CM there. Would you be available for a call tomorrow or sometime this week?” (Tr. 412; GC Exh. 7, p. 1.) On March 22, employee Suzanne told Assistant Manager Shawn that she was uncomfortable with some of the statements that Groeschel was making. (Tr. 586.) Shawn suggested that she submit a written statement. Suzanne gave a handwritten note to Shawn recounting Groeschel’s supposed statements about filing a claim with an agency that was apparently filed against Fuller.14 (Tr. 574; GC Exh. 7, p. 3.) Shawn uploaded the statement to Groeschel’s file in Dayforce. (Tr. 575, 592.) On March 23, employee Julia emailed Hancock. Julia heard from other employees that Groeschel was trying to get Fuller fired and that she could send a statement to Hancock. (Tr. 597, 598, 623.) Julia then told Fuller that she had written a statement about Groeschel and asked to whom she should send it to which Fuller replied to send it to Hancock. (Tr. 623.) In her email, Julia recounted years of gripes about Groeschel including Julia’s dis- agreement with Groeschel for helping employee Yuli do the cookie/candy order in 2019, Groeschel’s encounter with Lynn L., Groeschel’s encounter with the maskless customer in 2020, and Julia’s impression that Groeschel frequently operated the pallet jack in a dangerous aggressive manner. Julia also men- tioned hearsay about Groeschel discussing political issues. (Tr. 601, 602.) Then Julia relayed the only new information in her letter about her conversation with Groeschel about the 401(k) re- tirement plan. (Tr. 603.) Most of this long paragraph discusses Julia’s views about retirement benefit plans fees. Julia told Groeschel that she believed that employees misunderstood the fees. Julia told Groeschel she needed more information before she had an opinion on the issue. Then Julia claims that Groeschel aggressively responded, “[S]o you are siding with Trader Joe’s?” Julia’s letter goes on to state her belief that Groeschel is “a fun- damentally angry person who has a need to feel in control and get her way, and when she doesn’t she gets even more angry.” 14 I note that the statements written by Suzanne, Jeff, Carmela, and Lynn L. all have three vertical lines running through them in the same pattern. Assistant Manager Shawn testified that he scanned and uploaded Suzanne’s statement to Dayforce and told Fuller about it. (Tr. 590.) Ap- parently, the other three statements were scanned and emailed to Han- cock by Assistant Manager Jeff. (Tr. 371, 372.) After receiving one or more of these employee letters, Hancock decided to do a climate study at the facility. In her climate study notes from interviewing Suzanne, she notes that she does not have Suzanne’s statement but would get it. (GC Exh. 13, p. 3.) TRADER JOE’S (GC Exh. 7, pgs. 6-8.) The letter does not say that Groeschel later apologized for upsetting her. Hancock forwarded this email to HR head Laurie. (GC Exh. 7, p. 6.) In her testimony, Julia ad- mitted that she raised her voice with Groeschel because she felt Groeschel would not let the discussion go. I note there is no ev- idence that Julia was counseled in any way for her disagreements with Groeschel. On about March 24, employee Elizabeth told Assistant Man- ager Jeff that she had heard second-hand gossip that employee Carmela heard Groeschel say something derogatory about em- ployee Lynn Y. Jeff asked Carmela to write a statement. (GC Exh. 7, p. 4.) On March 24, Carmela,15 a new employee, wrote a statement saying that on March 23 Groeschel “tried to hit [Lynn Y.] with the cart full of grocery” and said under her breath, “You better watch out.” Carmela also reported that Groeschel “dropped a pallet at the end, so [Lynn Y.] couldn’t get to it.” Carmela reported that on March 24 there “was a lot of drama being said” back by the bailor and she heard Groeschel say to Lynn Y., “You better be careful,” without providing any context to the statement. Interestingly, there is no statement by Lynn Y., who Carmela reported as being at work on March 24. Nor is there any note from Jeff that he requested that Lynn Y. write a state- ment about Groeschel’s allegedly bullying behavior.16 As dis- cussed below, Lynn Y. sent an email to Hancock later in the day on the same day that Groeschel was discharged. Lynn Y. makes no mention of bullying behavior or any concerns about being hit by carts or pallet jacks. (Tr. 380; GC Exh. 7, p. 11.) On March 28, employee Rita emailed Hancock. Her email de- tails conversations she had with Groeschel about COVID-19 protocols in 2020,17 Groeschel’s ongoing concerns about how Respondent, including Fuller, was handling the pandemic, Groeschel’s poor evaluation and discipline for the employee let- ter, and that Groeschel more recently told her that she had filed “a federal lawsuit against Trader Joe’s.” Rita stated that she re- sponded to Groeschel in much the same way Fuller had by ques- tioning why she still worked there. Rita’s email goes on to state, “she told me that she was there because she was the voice of the voiceless and the strength for the weak. I asked Jill who she was referring to and she said all the young kids and new hires that come in because they are afraid to speak up.” Rita went on to express her support for Fuller and commented that in her opinion Groeschel “is someone who has very deep personal trauma” 15 Again, the only relevant portions of the testimonies of employees who also sent statements to Hancock are that which were in Respond- ent’s knowledge prior to discharging Groeschel. Because Respondent took no steps to investigate Carmela’s claims regarding Lynn Y., the is- sue of whether Lynn Y. felt threatened in anyway remains unanswered. If Respondent had investigated, they may have question Carmela’s per- ception of the situation. I found Carmela’s demeanor highly unusual. While most witnesses show some measure of nervousness in testifying, she presented as extremely fearful. She was nervous and odd about where she left her purse while testifying. Her hesitant movements, recoiled pos- ture, and soft voice conveyed an unusually high level of timidness. This behavior may explain why she reported Groeschel’s conduct as intimi- dating when Lynn Y. did not mention it. Also, she testified that Groeschel attempted to block Lynn Y.’s exit from a 10-foot-wide aisle with a 3-foot-wide pallet jack. These inconsistencies highlight the prob- lems with Respondent taking no action to investigate at the time. 16 For 3–4 years before her discharge, Groeschel’s regular beginning of shift duties was to assist in unloading the delivery truck by moving pallets of merchandise using a manually operated pallet jack. Groeschel testified that she had never ran into anyone or anything while moving a pallet jack and other employees reported that she was efficient and without providing any reason for such a conclusion. (GC Exh. 7, p. 9.) On some unknown date in March 2022, Lynn L., who no longer worked for Respondent, was shopping at the store. She learned from Lynn Y. that charges were pending against Re- spondent and some rumor that the charges could “bring Fuller down.” While at the store, she asked Fuller how he was. Fuller asked her to write a letter in support of him. (Tr. 700, 704, 716.) I note that Lynn L.’s testimony directly contradicts Fuller’s tes- timony denying he had requested employees write to Hancock on his behalf. I credit Lynn L.’s testimony over Fuller’s. First, Lynn L., who was no longer employed by Respondent, had little reason to lie other than her loyalty to Fuller. Indeed, she at- tempted to remain loyal to him in her testimony and only fully admitted her motivation in writing the letter after a series of questions. Lynn L. like the other employees, who wrote emails or other statements and sent them to Hancock, admitted to taking Fuller’s side because of his statements in huddles that he was only following Respondent’s directives on COVID-19 protocols which were based upon governmental agencies recommended procedures. (Tr. 719.) Hancock’s Response to the Employees’ Statements Hancock testified about not knowing why she started receiv- ing letters from employees. (Tr. 389.) Hancock stated that she read the employee statements to indicate problems with Groeschel were ongoing despite few references to specific recent events and the mentioning of Groeschel filing a charge in many of the letters. I find this testimony not credible because most of these statements on their face noted that they were motivated by Groeschel’s filing of the charge. The fact that Hancock took no action to clarify why the letters were sent to her supports this conclusion. After receiving the statements Hancock spoke with the human resources department which recommended that she seek Groeschel’s side of the story. Hancock decided to do a gen- eral climate survey instead of an investigation into any of the supposed poor actions by Groeschel. (Tr. 368.) March 29, 2022, Hancock and Assistant Manager Jeff called Groeschel into a meeting. (Tr. 127; GC Exh. 11.) Fuller, who typically would handle discipline of an employee, was at the store but did not attend the meeting. (Tr. 128.) Hancock believed that she should handle the investigation and discipline in this case, because Groeschel had filed the charge in this matter. (Tr. precise when doing this work. (Tr. 40–41, 240–241, 257, 261–262.) There is no record of Groeschel having an accident while operating the pallet jack or being warned to be more careful with the pallet jack, nor did any of the management officials who testified state that they ever counseled Groeschel on her use of the pallet jack. Occasionally, the stack of merchandise on a pallet would get off balance and tip. (Tr. 43, 242, 260–261.) Groeschel and others had experienced this when operating a pallet jack. Similarly, Groeschel was never disciplined, warned, or coun- seled for a pallet that she was moving becoming off balanced. (Tr. 43.) To promote safety, management implemented Groeschel’s suggestion that the mechanical pallet jack be used to unload the heavier pallets from the truck to ground level so that the manual pallet jack operators would not have to take the heavy pallets down the ramp from the loading dock. (Tr. 41, 150.) Standard protocol was that those operating a pallet jack had the right-of-way. (Tr. 40, 232.) Groeschel denies ever attempting to hit anyone with a pallet jack. (Tr. 45.) 17 Rita and Groeschel were sometimes scheduled to work at the same time in 2020, but Rita’s schedule changed. They had not worked together or communicated for 2 years other than their conversation on about March 10, 2022. (Tr. 657.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 368.) Hancock told Groeschel that she had received reports stat- ing that Groeschel had been pulling pallets around the store in an angry, toxic fashion. (Tr. 127.) Groeschel responded that it was not true, that Jeff opened with her regularly and had always said the opposite about her work with the pallet jack, and that if it were true, she would have been disciplined immediately. (Tr. 127, 204.) Groeschel stated that she believed this was because she had asked employee Julia about the 401(k) lawsuit and that it was harassment. Hancock told her that she was suspended pending an investigation and that she could provide a written statement in response, which Groeschel decided not to do. (Tr. 128, 205.) Hancock did not raise any other specific complaints about Groeschel’s behavior or about any potential conflict Groeschel had with other employees, because Groeschel ex- pressed her belief that she was being harassed for raising com- plaints. (Tr. 387, 413; GC Exh. 11.) Hancock’s notes about this interaction state that Groeschel was “visibly angry, made big sighs, rolled her eyes, and raised her voice.” (GC Exh. 11, p. 1.) Assistant Manager Jeff’s notes do not reflect this body language. (GC Exh. 11, p. 2–3.) As Hancock was leaving the store, she told fellow employees working at the counter that she had been sus- pended and spoke and texted with other employees about her suspension after that. (Tr. 129–132.) After suspending Groeschel on March 29 and 30, from mid- morning to mid-afternoon, Hancock spoke to employees selected by the assistant managers and others who asked to speak to Han- cock.18 (Tr. 439; GC Exh. 13.) Hancock asked employees four questions, including whether the employee had seen, “any con- cerning behavior?” I reproduce the relevant portions of Han- cock’s notes here: Assistant manager Joyce who had recently been promoted from crew member: Jill is a constant challenge. She will slam carts towards crew when she’s in the usher position. They have to watch out that their hand does not get caught. She is very aggressive. Joyce says she has tried to understand Jill and thinks Jill is trying to do things too fast and can whip pallets around so much that they fall over. She thinks the COVID pan- demic made Jill feel out of control and now she has spiraled. She’s never happy and has forgotten what TJs has done for her, such as the financial help after Hurricane Harvey. Another time, Jill yelled at a customer regarding mask wearing. It was almost screaming. Also, she recently told come crew that she was filing a lawsuit against Captain David. (GC Exh 13, p. 2.) Employee Suzanne, who submitted a written statement: The Jill thing happened. Sean asked her to write a statement. (I didn’t have this and asked for it later.) Jill told her she was get- ting a lawyer and it was shocking and uncomfortable. Jill’s gruff, not good energy, very toxic. (GC Exh. 13, p. 3.) Employee Sandy: Some people have butted heads like Jill and Julia did last week. He has no knowledge of anything else. (GC Exh. 13, p. 4.) Employee Toni: She hears things but she hasn’t seen anything. She said Jill has changed so much since she first met her years ago. She said she knows Jill has cornered people and is very toxic. (GC Exh. 13, p. 6.) 18 Hancock claims that Fuller was not involved in her investigation because Groeschel had filed charges against him. (Tr. 440.) I note that none of the charges filed in this matter name Fuller or any management official specifically. During the same period, Hancock states that she Employee Julia, who already summitted a written complaint requested to speak to Hancock: The concerns have been all about Jill for a long time. She doesn’t like it when Jill’s here. Lynn too, but she’s gone now. Jill is an angry person. She already gave a statement about that. The only other thing in all this time was a Mate that used to work at the store, Dawn, was passive aggressive years ago, but she was transferred to another store. (GC Exh. 13, p. 9.) Julia also told Hancock that Lynn L. was bossy and tried to convince people to agree with her political views. (Tr. 630.) Employee Elizabeth, who already summitted a written com- plaint requested to speak to Hancock: [Elizabeth] protects other crew members. [Employee Lynn Y] came to her crying multiple times due to Jill bullying Lynn. Elizabeth came to her rescue. Mate Dawn bullied people when she was at the store. Ina has an attitude and an off-putting de- meanor. She is not a team player. Jill is the main problem. She is ugly. She talked politics non-stop in the past. Jill was scream- ing at Lynn L. last year. 19 (GC Exh. 13, p. 9.) Employees complained about a variety of issues and employ- ees other than Groeschel. Employee Ina and employee Mayra complained about conflicts with employees, including allega- tions of bullying by others than Groeschel and management’s handling of these situations. (GC Exh 13, pp. 2, 7.) Employees Yuli, Morgan, Toni, Marilu, and Mayra discussed several inap- propriate comments to racial and ethnic minorities and other di- versity issues. (GC Exh. 13, pp. 5, 6, 7.) Other than discharging Groeschel, Hancock followed up on only one of these alleged conflicts. (Tr. 409, 410.) On April 6, 2022, even though the situ- ation occurred months earlier and some documentation had been made of the situation, Hancock issued discipline to one em- ployee for telling other employees that they should not speak Spanish amongst themselves. Hancock issued the discipline over concerns for legal ramifications. (Tr. 407–409; GC Exh. 18.) Hancock’s discussion with Fuller about Groeschel was ongoing. (Tr. 411.) Groeschel’s Discharge Hancock had a phone conversation with HR head Laurie and Executive Vice-President Dionne about Groeschel. Hancock tes- tified that they decided to terminate Groeschel’s employment be- cause her aggressive behavior was ongoing and some safety is- sues had been raised. (Tr. 412, 440.) Hancock admits that the climate survey did not raise any new allegations of specific con- duct by Groeschel and that she did not speak to Groeschel about any information found during the climate study. On April 8, 2022, Hancock had a scheduled meeting to dis- charge Groeschel. (Tr. 139; GC Exh. 17.) Groeschel arrived at the store and spoke with Hancock and Assistant Manager Carlos. Fuller was at the store but did not attend this meeting. (Tr. 367.) Groeschel objected to Carlos’ presence because Hancock had not informed her that anyone else would be present. Hancock agreed to meet without Carlos. (Tr. 140, 417; GC Exh. 17.) Hancock read the termination report to Groeschel and asked if she would sign it. (Tr. 141.) Groeschel denied the allegations that she was ever unsafe in how she operated any device to move product in discussed the letters from employees and complaints from Groeschel with Fuller. (Tr. 411.) 19 Another employee recounted hearsay about Groeschel cussing at Lynn L. (GC Exh. 13, p. 2.) TRADER JOE’S the store. She asserted that the allegations were harassment be- cause if she had acted in such a way she would have been disci- plined promptly. (Tr. 204, 231.) Hancock told her that she could provide a written statement in response, which Groeschel de- cided was futile to do. (Tr. 205, 231.) Groeschel signed the ter- mination notice, thanked Hancock and left. (Tr. 141, 142; GC Exh. 17.) Later in the day on April 8, Lynn Y. sent an email to Hancock in which she complains about Groeschel’s actions, including speaking negatively about Trader Joe’s with other employees, complaining about changes in COVID-19 protocols in huddle meetings, and telling other employees that she had filed a charge or grievance against Trader Joe’s. Lynn Y’s email states that dur- ing one huddle meeting, “Jill raised her voice to an almost yell- ing level and asked what is Trader Joe’s doing to protect all the employees, that COVID has not gone away yet.” Lynn Y. went on to express her belief that “[t]he proper way to handle the sit- uation would have been to talk to David individually about her grievances, instead of making that morning huddle a very un- comfortable situation for all.” Lynn Y.’s letter went on to express her support for Fuller and mentioned the incident when Groeschel cursed at Lynn L. I note that Lynn Y. made no men- tion of Groeschel threatening or coming close to hitting her with a pallet jack or cart as discussed in statements by Elizabeth, Car- mela, and Jeff. Hancock also forwarded this email to HR head Laurie. (GC Exh. 7 p. 11.) Comparative Evaluations and Discipline Evidence Most of the negative employee evaluations issued at the store were given for poor productivity due to off task behaviors that were sometimes combined with other issues such as poor attend- ance. (GC Exh 10.) Less frequently negative evaluations noted poor communication with customers and staff, attendance, and specific unacceptable behaviors such as taking extra breaks or poor performance of assigned tasks.20 The narratives accompa- nying the notation of meets expectations or needs improvement are for the most part general statements from which comparisons are difficult to make. For example, many evaluations note attend- ance problems without mentioning the number of occurrences. Id. A February 2020 evaluation mentions 11 attendance occur- rences and a January 2022 evaluation notes 10 attendance occur- rences in the evaluation period in combination with other nega- tive performance notes such as poor productivity, and failure to engage customers. (GC Exh. 10, p. 8 and 38.) Another evaluation states that the employee’s attendance had improved with a re- duction to 6 occurrences in the evaluation period. In August 2021 employees were told that they would not be granted merit wage increases due to the COVID-19 hazard pay they received. Re- spondent still issued negative evaluations to some employees in- cluding Groeschel. (GC Exh. 10, p. 9–21; Jt. Exh. 2, p. 14.) Considering that approximately 100 employees worked at the store at any given time, few written warnings were issued from 2019 to 2022. (Tr. 557; GC Exhs. 9 and 10.) Employees who were issued written warnings for attendance issues received sev- eral occurrences within a short time. (GC Exh. 9, pp. 1, 3, 4, 6, 8.) Some employees, like Groeschel, received negative marks on their evaluations for attendance issues over the 6-month evalua- tion period, but there is no documentation and no mention of them receiving a written warning for attendance in the record. 20 Benton also testified that a customer had complained about her, and she was counseled but not written up for the situation or given a poor evaluation. Benton testified that she kept to herself and was told during (GC Exh. 10, p. 2, 6, 7, 16, 17, 21, 23.) Other written warnings were issued to employees for the following reasons: —yelling in an aggressive manner at another employee in the presence of customers. (GC Exh. 9, p. 2) —receiving at least 4 customer complaints between August and December 2019 and failing to show improvement despite repeated coaching. (GC Exh. 9, p. 5.) —taking a cell phone call while working with a customer and twice failing to put all bagged items into the customers carts. (GC Exh. 9, p. 7.) During the same period, five employees were discharged for the following reasons: —Theft. (GC Exh. 9, p. 10.) —Prior negative performance review and then gave an em- ployee discount to a non-employee. (GC Exh. 9, p. 11.) —Admitted sexual harassment. (GC Exh. 9, p. 12.) —Received 8 customer complaints in 10 months and a new complaint despite coaching and a prior written warning. (GC Exh. 9, p. 13.) —Theft. (GC Exh. 9, p. 14.) ANALYSIS The complaint alleges that Respondent violated Section 8(a)(1) and (4) of the Act by issuing Groeschel a written warn- ing, giving her a negative evaluation and thereby denying her a wage increase, and by suspending and subsequently discharging her. When assessing the lawfulness of an adverse employment action that turns on employer motivation, the Board applies the analytical framework set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983). To sustain a finding of discrimina- tion, the General Counsel must show that the employee's pro- tected activity was a motivating factor in the employer's decision by establishing that: (1) the employee engaged in protected ac- tivity, (2) the employer knew of that activity, and (3) the em- ployer had animus against the protected activity, which must be proven with evidence sufficient to establish a causal relationship between the protected activity and the adverse action. Tschig- gfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 6, 8 (2019). See also Mondelez Global, LLC, 369 NLRB No. 46, slip op. at 1–2 (2020). Animus toward the protected activity can be shown through direct or circumstantial evidence, including evidence the employer’s stated reasons for the adverse action are pretext. This may include suspicious timing, false or shifting reasons given in defense, failure to adequately investigate alleged misconduct, departures from past practices, tolerance of behavior for which the employee was allegedly fired, and disparate treatment of the discharged employee. See Shamrock Foods Co., 366 NLRB No. 117 (2018); Lucky Cab Co., 360 NLRB 271, 274–275 (2014); Medic One, Inc., 331 NLRB 464, 475 (2000). If evidence establishes these factors, the burden shifts to the employer to show it would have taken the same action in the ab- sence of the employee’s protected activity. Wright Line, 251 NLRB at 1089. An employer cannot simply present a legitimate reason for its action; rather, it must persuade by a preponderance of the evidence that the same action would have taken place in her evaluations that she should display her good work ethic to other em- ployees, but she was never marked down on her evaluation because she kept to herself. (Tr. 253.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 the absence of the protected conduct. See Bruce Packing Co., 357 NLRB 1084, 1086–1087 (2011), enfd. in pertinent part 795 F.3d 18 (D.C. Cir. 2015). The General Counsel may also offer proof that the employer's proffered reasons for the decision were false or pretextual. To find the proffered justification(s) pre- textual, the surrounding circumstances must support an inference of unlawful motivation. Electrolux Home Products, 368 NLRB No. 34, slip op. at 3 (2019). Concerted Activity and Respondent’s Knowledge Thereof The record establishes that Groeschel engaged in protected concerted activity and that Respondent was aware of that activ- ity. “To be protected under Section 7 of the Act, employee con- duct must be both ‘concerted’ and engaged in for the purpose of 'mutual aid or protection.’” Fresh & Easy Neighborhood Market, 361 NLRB 151, 153 (2014). The Board has held that activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self." Meyers Industries (Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v. NLRB, 755 F. 2d 941, 244 U.S. App. D.C. 42 (D.C. Cir. 1985), cert. denied 474 U.S. 948, 106 S.Ct. 313, 88 L. Ed. 2d 294 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481, 266 U.S. App. D.C. 385 (D.C. Cir. 1987), cert. denied 487 U.S. 1205, 108 S. Ct. 2847, 101 L. Ed. 2d 884 (1988). Employees are engaged in protected concerted activity when they act in concert with other employees to improve their working conditions. Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L. Ed. 2d 428 (1987). An employer may not retaliate against an employee for exercising the right to engage in protected concerted activity. Meyers I, supra at 497 (1984). An employer violates Section 8(a)(1) of the Act when it discharges an employee, or takes some other adverse employment action against him, for engaging in protected concerted activity. Rinke Pontiac Co., 216 NLRB 239, 241, 242 (1975). As discussed above, documents establish that Groeschel and other employees discussed terms and conditions of work with regards to COVID-19 safety protocols amongst themselves and expressed their concerns with Fuller and assistant managers. While some employees clearly disagreed with Groeschel’s in- sistence that management, especially Fuller, was not doing enough to protect employees, other employees agreed with Groeschel so much so that some employees quit work over the issue. Groeschel became the squeaky wheel that kept raising these issues with other employees and with management through one-on-one conversations with supervisors, in huddle meetings where other employees raised similar issues with Fuller and the assistant managers, and letters to management officials. One example of Respondent’s knowledge and animus towards Groeschel’s insistence on raising safety issues is Fuller’s July 27 email to Hancock stating that Groeschel “pushed back very hard about [how] Trader Joe’s doesn’t care about us again.” Fuller also states that “several other crew members . . . often ask why we took it down.” Fuller also emailed Hancock that Groeschel saw herself as speaking for other employees. While Fuller noted other employees raised concerns about the removal of safety pro- tocols, Groeschel’s outspokenness resulted in her being the only employee about which Fuller, Hancock and higher management officials regularly communicated. 21 Respondent has not contended that Groeschel’s conduct in raising safety complaints took her out of the protection of the Act. As the Board stated in Meyers II, supra at 887, “Meyers I en- compasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management. Here, Groeschel repeatedly raised truly group complaints about COVID-19 safety protocols. Re- spondent was aware that employees other than Groeschel had the same safety concerns. Fuller temporarily replaced the social dis- tancing stickers, sought to replace the plexiglass, and took other actions because he knew several employees felt the same or sim- ilar to Groeschel about the safety concerns. His emails to Han- cock further evidence that she expressed safety concerns ex- pressed by many. The Board in Wismettac Asian Foods, Inc., 371 NLRB No. 9, slip op. at 1 and 6 (2021) upheld the administrative law judge’s finding that an employee raising a safety complaint to management that at least one other employee also raised was protected concerted activity.21 See also, N. W. Rural electric Coop., 366 NLRB No. 132 (2018); Dreis & Krump Mfg., 221 NLRB 309, 314 (1975) (employees' complaints protesting super- visory handling of safety and training issues fell within the scope of the "mutual aid or protection” clause). Therefore, I find that by raising safety complaints shared by other employees to man- agement Groeschel engaged in protected concerted activity. Animus and Causation The Board considers circumstantial as well as direct evidence to infer discriminatory motive or animus, such as: (1) timing or proximity in time between the protected activity and adverse ac- tion; (2) delay in implementation of the discipline; (3) departure from established discipline procedures; (3) disparate treatment in implementation of discipline; (4) inappropriate or excessive penalty; and (4) employer's shifting or inconsistent reasons for discipline. CNN American, Inc., 361 NLRB 439 (2014) (citing W. F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995); Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1185 (2011); Praxair Distribution, Inc., 357 NLRB 1048, 1048 fn. 2 (2011). The Board “may infer from the pretextual nature of an em- ployer’s proffered justification that the employer acted out . . . animus, ‘at least where . . . the surrounding facts tend to reinforce that inference.’” Electrolux Home Products, 368 NLRB No. 34, slip op. at 3 (2019) (quoting Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (emphasis in Electrolux Home Products). Pretext may be demonstrated by (1) an em- ployer’s false reasons for an adverse action; (2) disparate treat- ment; (3) departure from past practice; (4) shifting explanations by an employer for an adverse action; and/or (5) the failure to investigate whether the employee engaged in the alleged miscon- duct. ManorCare Health Services–Easton, 356 NLRB 202, 204 (2010); Windsor Convalescent Center, 351 NLRB 975, 984 (2007), enfd. in relevant part 570 F.3d 354 (D.C. Cir. 2009); In- ter–Disciplinary Advantage, Inc., 349 NLRB 480, 509 (2007). Furthermore, the Board has held that even when the employer’s rationale is not patently contrived, “weakness of an employer’s reasons for adverse personnel action can be a factor raising a sus- picion of unlawful motivation.” General Films, Inc., 307 NLRB 465, 468 (1992). Respondent points to its response to Groeschel’s 2020 letter expressing concerns about the notification of the first known positive COVID-19 case in the store as evidence that it did not TRADER JOE’S hold animus towards any protected activity on Groeschel’s part. While I agree that Respondent did not hold animus against this activity, I do find animus towards her 2021 complaints about the removal of safety protocols. The changes in masking rules and then the repeal of other safety protocols such as the removal of social distancing stickers and the plexiglass at the registers raised concerns amongst the employees. Groeschel repeatedly raised these concerns. Although most of the safety procedures had been removed, COVID-19 remained a serious health threat through the end of 2021 and the beginning of 2022 with many employees including Groeschel contracting the virus during that period. While some employees seem to have acquiesced to Respond- ent’s changes, Groeschel continued to raise others’ dissatisfac- tion. Respondent’s animus towards these complaints is reflected in the communications between Fuller and Hancock discussing her statements about COVID-19 safety issues. In one communica- tion Fuller emailed Hancock about Groeschel stated, “Just wanted to let you know that you may get a letter or call from Jill and/or others. Jill is being very vocal about the plexi being re- moved this morning.... I just wanted you to know so you wouldn’t be blindsided in case she phoned.” By October 2021 assistant managers also started noting her safety complaints in Groeschel’s Dayforce file. The detail in these Dayforce entries is significantly different than earlier notes to the file. I also find animus directly expressed in Fuller’s and Hancock’s docu- mented comments to Groeschel that she needed to consider whether she was still a good fit for her position. I find that Fuller and Hancock would not have made these comments absent Groeschel’s ongoing safety complaints. Prior to her safety com- plaints in 2021 there is no record of management questioning her fit for the position even when they corrected other behavior. Fur- thermore, once she curtailed her safety complaints after receiv- ing the written warning, Respondents communications about her stopped until she spoke about filing the charge at work. Respondent’s animus is especially apparent in how Hancock handled the statements submitted by other employees. Many of the employees stated that they were motivated to write the com- plaints because Groeschel had spoken to employees about filing the charge in this matter. Their statements mostly rehashed old complaints that had already been addressed. Contrary to his tes- timony Fuller solicited at least one of the statements and the as- sistant manager encouraged the writing of others. Despite the un- usualness of receiving such statements and the mentioning of Groeschel talking to employees about filing the charge, Hancock never questioned the employees about why they submitted the statements to her. From her lack of inquiry, I infer that she un- derstood it was in response to Groeschel talking about the charge. Furthermore, no local management official investigated any of the allegations, including the allegation that Groeschel al- most hit an employee with a pallet jack and a cart and threatened the employee. Instead, these complaints that were normally han- dled by assistant managers or Fuller were forwarded to Hancock who also did not investigate specific allegations of misconduct. Instead, Hancock approached Groeschel with generalized com- plaints about her conduct and then conducted the climate survey. No management official ever discussed the allegations with the employee that Groeschel supposedly almost hit and threatened and never adjusted Groeschel’s discharge even after receiving a complaint letter from the employee that Groeschel supposedly threatened that amongst numerous complaints made no mention of any such threat. The Board has held that similar failures to conduct a meaning- ful investigation into allegations of misconduct close in time to an employee’s protected activity can constitute evidence of ani- mus. See Midnight Rose Hotel & Casino, Inc. v. NLRB, 198 Fed.Appx. 752, 757–758 (10th Cir. 2006) (employer's failure to conduct a meaningful investigation was evidence of discrimina- tory intent); Airgas USA, LLC, 366 NLRB No. 104, slip op. at 3 fn. 12 (2018). Therefore, I find that Respondent’s failure to con- duct a meaningful investigation into any of the alleged miscon- duct raised by the employee statements or the climate survey ev- idence animus towards Groeschel’s protected activity of filing the charge and discussing it with coworkers. Based upon the forgoing, I find that the record establishes that Respondent’s held animus towards Groeschel’s protected activ- ity at least by the time it issued the written warning to her in October 2021. The Written Warning As discussed above, I find that Groeschel made a flippant re- mark to fire her to Assistant Manager Shawn that prompted the customer to write the complaint. When Hancock received the customer’s complaint, the record is clear that Respondent knew of Groeschel’s protected activity and that Respondent showed animus against these complaints by tracking and communicating amongst management to document her protected conduct. Fur- thermore, Fuller had already questioned her fit for employment, which I find was motivated at least in part by her protected con- certed activity. Written warnings are infrequently issued at the store. There are only two other written warnings for conduct similar to Groeschel’s. One employee had at least 4 customer complaints about which store management had spoken to her over a few months before receiving a written warning. That employee re- ceived several other customer complaints in the next few months before being discharged. The other employee, who received a written warning, yelled “aggressively” at a coworker in front of customers. This conduct was witnessed by a supervisor and dis- ciplined without a customer complaint. The complaint for which Groeschel was disciplined was unu- sual in that the customer was upset with Respondent for not hir- ing him after multiple attempts and with Groeschel for not ap- preciating her job more. It was also unusual in that it came to Hancock’s attention and was not made directly to the store. Fuller questioned Groeschel about the alleged statement that she denied recalling making and then reported back to Hancock stat- ing that Groeschel’s attitude was improved and that “she may have taken our conversation last week to heart at least for now.” (GC Exh. 31.) Their conversation the prior week was about Groeschel’s compliance with completing the COVID-19 symp- tom checks during which she questioned the effectiveness of the checks if they are done well into the shifts. Fuller ended that con- versation with questioning her fitness for continued employment with Respondent. A review of the discipline issued at the store shows that writ- ten warnings are typically issued only after a repeated infractions occurred in a short time. For example, employees were marked down on their evaluations for high numbers of attendance occur- rences over a 6-month period, but other employees were issued written warnings for acquiring several attendance occurrences in a short period of time. Similarly, occasional customer complaints usually resulted in oral counseling and were discussed in evalu- ations, but several customer complaints within a few months DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 resulted in an employee receiving a written warning. Even after receiving that written warning, it took several more customer complaints against the employee in a short time to result in her discharge. Employees discharged in response to one infraction engaged in theft or non-authorized use of the employee discount, which is arguably a form of theft, or sexual harassment. There- fore, except for specific conduct like theft, employees were given the opportunity to improve usually multiple times before they were given a written warning and even more chances before be- ing discharged. The one exception was when an employee was issued a written warning for yelling aggressively at a coworker in front of customers. Groeschel engaged in an unprotected verbal altercation with another employee before customers were present in the store for which she immediately apologized and was counseled by an as- sistant manager, who documented the behavior. The only other comparable behavior in over a year was her unprotected com- ment to Assistant Manager Shawn to fire her. Shawn, who knew she made this comment on the sales floor in the presence of cus- tomers, took no action on his own to address it, which indicates that it was not a serious infraction in his mind. Even considering the inappropriateness of her outburst with employee Lynn L. and the flippant comment to Shawn, I do not find that Groeschel’s behavior was comparable to the pattern of repeated, close in time, uncorrected behavior for which other employees received written warnings. Nor is it comparable with aggressive yelling in front of customers for which one other employee was disci- plined. Accordingly, I find that Respondent failed to meet its burden to show that Groeschel would have been issued the written warn- ing absent her protected activity, and therefore, issued Groeschel the written warning in violation of Section 8(a)(1) of the Act. February 2022 Negative Evaluation A review of employee evaluations shows that conduct that did not result in a written warning was often noted in employees’ negative evaluations. For example, poor attendance, customer service skills, lack of productivity, teamwork, etc. that had not resulted in a written warning was the basis for Respondent issu- ing most of the negative employee evaluations. Groeschel’s un- protected conduct that I found would not have resulted in a writ- ten warning absent her protected conduct when considering the totality of the circumstances was sufficient to warrant a negative evaluation. I find that her 10 attendance occurrences, verbal al- tercation with Lynn L., resistance to interacting with some coworkers, and her comment to Assistant Manager Shawn to fire her would have resulted in a negative evaluation and a denial of a merit wage increase. I find in comparison to other negative evaluations issued by Respondent, Groeschel’s non-protected conduct was sufficient to warrant a negative evaluation. Even though the evaluation summary mentions her written warning, which I have found unlawful as discussed above, I find that Re- spondent met its burden of establishing that it would have issued her a negative evaluation regardless of her protected activity, based upon its past pattern of issuing negative evaluations for comparable conduct. Suspension and Termination Under Section 8(a)(4) of the Act, an employer may not dis- criminate against an employee for participating in Board pro- cesses, including filing charges and participating in the investi- gation of those charges, including discussing with employees if they would give testimony regarding the charges. The Board applies the same Wright Line framework as described to deter- mine whether an adverse employment action was for reasons prohibited by Section 8(a)(4). S. Freedman & Sons, Inc., 364 NLRB 1203, 1205–1206 (2016), enfd. 713 Fed.Appx. 152 (4th Cir. 2017). The complaint alleges that Respondent suspended and dis- charged Groeschel in response to her protected concerted activ- ity and because she filed a charge with the Board. Her suspension and discharge occurred close in time to Respondent learning that she was discussing the filing of the charge with coworkers. After Groeschel received the written warning, no supervisor ques- tioned her concerning any behavior until Hancock spoke with her in response to the employee statements sent to Hancock. It is clear on the face of most of the statements that the employees were motivated to submit them in response to Groeschel’s pro- tected conduct of discussing the filing of the charge in this case over receiving discipline and a negative evaluation with other employees. Most of these employees had worked with Groeschel for years and never made any similar complaints until she shared that she filed the charge, which they believed could negatively affect Fuller. Except for employee Julia’s complaint about their 401(k) benefits conversation and the allegations that Groeschel threatened and came close to hitting an employee with a pallet jack and a cart, all the statements rehashed events that were al- ready in Respondent’s knowledge or were vague generalizations about disagreeing with or not liking Groeschel without specific allegations of poor conduct. Contrary to Respondent’s argument that Groeschel’s discus- sion of the 401(k) benefit with Julia was not protected because there was no associated concerted action, I find the conversation was protected activity. The Board has found that employee dis- cussions concerning wages, job security, and work schedules are inherently concerted, and protected, regardless of whether they are engaged in with the express object of inducing group action. Trayco of S.C., Inc., 297 NLRB 630, 634–635 (1990) (wages), enf. denied mem. 927 F.2d 597 (4th Cir. 1991); Hoodview Vend- ing Co., 359 NLRB 355, 357–358 (2012) (job security), reaffd. 362 NLRB 690 (2015); Belle of Sioux City, 333 NLRB 98, 105 (2001) (work schedules); Aroostook County Regional Ophthal- mology Center, 317 NLRB 218, 220 (1995) (work schedules), enf. denied in relevant part 81 F.3d 209, 317 U.S. App. D.C. 114 (D.C. Cir. 1996). The Board's rationale for finding discussions about these working conditions inherently concerted was that the topics are vital terms and conditions of employment from which concerted activity feeds. Here, Groeschel was seeking infor- mation about their employer sponsored 401(k) plan in which she and other employees participated and about which some em- ployee action had already been taken. Benefits such as 401(k) funds, while albeit not as significant as hourly wages, are a form of employee compensation. If employees are not protected in seeking information about such benefits through discussions with coworkers, including in this case why some employees had already taken action with regards to the benefit, employees will be denied the information from which concerted activity feeds. Therefore, I find that Respondent is not privileged to discipline her for talking to another employee about the 401(k) benefits re- gardless of whether the intent was to instigate group action, ab- sent some showing that Groeschel’s conduct went outside the protection of the Act during the conversation. Aroostook County, supra at 220. Nothing in Julia’s statement about the conversation shows that Groeschel’s conduct was outside the protection of the Act. TRADER JOE’S Julia’s strong personal beliefs on the issue contributed as much to any misunderstanding between them as Groeschel’s attempt to get information on the issue from Julia. The record contains no evidence that customers were affected by this conversation. Julia did not raise the conversation with her direct supervisors and notes that she was motivated to write the statement by Groeschel’s disclosure that she had filed the charge in this matter and not their conversation. Thus, I find that this conversation was protected activity and could not be relied upon by Respondent to justify discharging Groeschel. Furthermore, Respondent did not fully investigate the matter. If Respondent had, it may have learned that Groeschel apolo- gized to Julia for the misunderstanding. Also, Hancock’s climate survey notes state that employee Sandy stated that “[s]ome peo- ple have butted heads like Jill and Julia did last week” without stating more. Thus, it appears that there was a witness to the dis- agreement, but Hancock either did not ask further about the in- cident or found it not noteworthy. Again, Respondent failed to complete a real investigation into any of the allegations of mis- conduct Respondent relied upon in discharging Groeschel. That leaves the allegations that Groeschel threatened and al- most hit employee Lynn Y. on more than one occasion. This al- legation came to an assistant manager’s attention while Lynn Y. was still employed at the store. There is no explanation for why store level supervision did not question Lynn Y. about these al- legations. Indeed, it was not employees Carmela or Lynn Y. that brought this issue to management, but employee Elizabeth who also stated that she was motivated to speak out against Groeschel because Groeschel had filed a charge against Respondent. Be- sides Hancock asking Groeschel some general questions about whether she had threatened or attempted to hit someone, Re- spondent took no measures to investigate these claims. Instead, Hancock conducted a climate study that can only be seen as a fishing expedition for ammunition against Groeschel. The climate study did not reveal any specific conduct that was not already known by management and no further investigation or discussion with Groeschel occurred. In response to this study, Hancock did not address similar personality conflicts amongst other employees but did issue discipline to an employee for mak- ing ethnically insensitive comments that Hancock saw as having possible legal implications. Ultimately, instead of even attempt- ing to uncover the truth about any specific allegedly unsafe con- duct by Groeschel, Respondent relied upon generalized state- ments and secondhand perceptions that were directly tied to statements which were motivated by a handful of employees who disagreed with Groeschel for filing a charge with the Board. Accordingly, I conclude that Respondent’s suspension and termination of Groeschel was motivated by Groeschel’s pro- tected activity of filing and participating in the investigation of the charge in this matter. I further conclude that Respondent has failed to establish that it would have discharged her absent that 22 General Counsel’s posthearing brief requests consequential dam- ages. (GC Br. 49.) The brief predates the Board’s decision in Thryv, Inc., 372 NLRB No. 22 (2022) granting damages for direct or foreseeable pe- cuniary harms, which have been included in my recommended order. The General Counsel’s posthearing brief also requests the order require that Respondent read the notice to its employees. (GC Br. 60.) General Counsel’s relies upon Gavilon Grain, LLC, 371 NLRB No. 79 (2022) to support its argument, but Gavilon Grain does not support the ordering of a notice posting in this case. The Board in that case found the enhanced remedy warranted because of the “the widespread nature of the Respond- ent's unfair labor practices, the small size of the unit, and the participation conduct. Therefore, Respondent violated Section 8(a)(4), and (1) of the Act by suspending and discharging Groeschel. CONCLUSIONS OF LAW 1. Respondent, Trader Joe’s, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent committed an unfair labor practice in violation of Section 8(a)(1) of the Act by issuing a disciplinary warning to Jill Groeschel. 3. Respondent committed unfair labor practices in violation of Section 8(a)(4) and (1) of the Act by suspending and discharg- ing Jill Groeschel. 4. The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. All other complaint allegations are dismissed. REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. Respondent, having discriminatorily disciplined, suspended, and discharged Jill Groeschel shall be ordered to of- fer her reinstatement to her former position, or if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or any other rights or privileges previously enjoyed, and to make her whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms22 suffered as a result of Respondent’s discriminatory ter- mination of her employment. As this violation involves a cessa- tion of employment, the make whole remedy shall be computed on a quarterly basis, less any interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), Respondent shall compensate them for the adverse tax consequences, if any, of re- ceiving a lump-sum backpay award. In addition, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), Re- spondent shall, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, submit and file with the Regional Director for Region 16 a report allocating the back- pay award to the appropriate calendar year, and pursuant to Cas- cades Container Board, 370 NLRB No. 76 (2021), provide a copy of the corresponding W-2 form(s) reflecting her backpay award. The Regional Director will then assume responsibility for transmission of the report to the Social Security Administration at the appropriate time and in the appropriate manner. In accord- ance with King Soopers, Inc., 364 NLRB 1153 (2016), the Re- spondent shall also compensate Jill Groeschel for search-for- work and interim employment expenses regardless of whether of high-ranking management officials.” Id. at slip op. 1. While Board Member Prouty has endorsed requiring the reading of notices in a broader range of cases, a Board majority has not done so. Id. at fn. 5; Cp Anchorage Hotel 2, 371 NLRB No. 151, fn. 3 (2022). The Board has not traditionally required the reading of the notice in cases like the instant case where a single employee is disciplined and discharged for protected activity. Accordingly, I decline to recommend the order requires the reading of the notice posting. Finally, General Counsel argues that Re- spondent should be required to write a letter of apology to Groeschel. (GC Br. 61.) General Counsel does not cite, nor have I found any, au- thority for such a remedy; therefore, I decline to recommend it here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 those expenses exceed her interim earnings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Ken- tucky River Medical Center, supra. Respondent shall also be or- dered to expunge from its files, any and all references to the dis- criminatory and unlawful discipline and discharge of Jill Groeschel and to notify her in writing that this has been done and that evidence of the discriminatory and unlawful action will not be used against her in any way. On these Findings of Fact and Conclusions of Law and on the entire record, I issue the following recommended ORDER The Respondent, Trader Joe’s, Houston, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Issuing disciplinary warnings to employees because of their protected concerted activities, including but not limited to discussing amongst themselves and with management COVID- 19 safety protocols, employment benefits, and the filing of charges with the National Labor Relations Board. (b) Discharging or otherwise discriminating against employ- ees for their protected concerted activities or to discourage other employees from engaging in those activities. (c) 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 from the date of this Order, offer Jill Groeschel full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or any other rights and privileges previ- ously enjoyed. (b) Make Jill Groeschel whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the discrimination against her, in the manner set forth in the remedy section of this decision. (c) Compensate Jill Groeschel for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appro- priate calendar year(s). (d) File with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Jill Groeschel’s W-2 form(s) reflecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discipline and discharge of 23 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notices 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 notices must be posted within 14 days after the facilities reo- pen 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 notices must also be posted by such Jill Groeschel, and within 3 days thereafter, notify her in writing that this has been done and that the unlawful employment actions will not be used against her in any way. (f) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of back pay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its 2922 South Shepherd Drive, Houston, Texas facility, copies of the at- tached notice marked “Appendix.”23 Copies of the notices, on forms provided by the Regional Director for Region 16, after be- ing signed by Respondent's authorized representative, shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to em- ployees are customarily 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. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any of the material. If the Respondent has gone out of business or closed the facilities involved in this pro- ceeding, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since Octo- ber 25, 2021. (h) Within 21 days after service by the Region, file with the Regional Director for Region 16 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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. March 1, 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 a representative to bargain with us on your be- half Act together with other employees for your benefit and protection electronic means within 14 days after service by the Region. If the no- tices 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 Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” TRADER JOE’S Choose not to engage in any of these protected activ- ities. WE WILL NOT issue disciplinary warnings to you because you engage in protected activities, including but not limited to dis- cussing safety protocols, employment benefits, or the filing of a charge with the National Labor Relations Board. WE WILL NOT terminate, or otherwise discriminate against you because you engage in protected activities or to discourage other employees from engaging in those activities. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Jill Groeschel full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or any other rights previously en- joyed. WE WILL make Jill Groeschel whole for any loss of earnings and other benefits resulting from the discrimination against her, less any net interim earnings, plus interest, and WE WILL also make her whole for any other direct or foreseeable pecuniary harms suffered as a result of the adverse actions, including rea- sonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Jill Groeschel for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed, either by agree- ment or Board order, a report allocating the backpay awards to the appropriate calendar year(s). WE WILL file with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Jill Groeschel’s W- 2 form(s) reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s order, remove from our files any reference to the unlawful discipline, suspension, and discharge of Jill Groeschel, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the unlawful employment actions will not be used against her in any way. TRADER JOE’S The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-291179 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.