Starbucks Corporation

373 NLRB No. 83 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Starbucks Corp. and Workers United. Cases 02–CA– 303077 and 02–CA–304431 August 14, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On July 24, 2023, Administrative Law Judge Benjamin W. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Coun- sel and the Charging Party filed answering briefs, and the Respondent filed a reply brief. The General Counsel and the Charging Party filed cross-exceptions with supporting briefs, the Respondent filed an answering brief, 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 and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 For the reasons stated by the judge, we adopt the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by unlawfully terminating employee Rhythm Heaton for engaging in union conduct.3 However, as explained below, we reverse the judge’s dismissal of the Section 8(a)(5) and (1) allegations regarding the Respondent’s 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 addition, some of the Respondent’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit. Moreover, we re- ject the Respondent’s specific assertion that the judge’s conduct at the proceeding, including cross-examination of witnesses, evidenced bias. Judge Green questioned the Respondent’s witnesses to clarify unan- swered questions with respect to the Respondent’s disciplinary proce- dures in general, and as specifically applied to Heaton. In so doing, he was well within his rights as a judge to fully develop the record. See Teamsters Local 722 (Kasper Trucking), 314 NLRB 1016, 1017 (1994) (“[I]t is well settled that judges may examine witnesses or interrupt ques- tioning in order to clarify testimony or develop the record.”), enfd. mem., 57 F.3d 1073 (7th Cir.1995). 2 We have modified the judge’s conclusions of law and substituted a new Order and notice to conform to the violations found and the Board’s standard remedial language. failure to provide requested information. Further, we sever and retain the remaining Section 8(a)(5) and (1) al- legations for further consideration, as detailed below. A. Background and Facts On May 9, 2022, the Union was certified as the collec- tive-bargaining representative for all full-time and regular part-time baristas and shift supervisors at the Astor Place Store. On August 17, 2022, bargaining unit employee Rhythm Heaton was discharged for engaging in protected concerted activity in violation of Section 8(a)(3) and (1). The Respondent provided the Union no notice or oppor- tunity to bargain over the decision to terminate Heaton. On September 6, following the termination of Heaton, the Union requested that the Respondent bargain over the effects of the decision to discharge Heaton. The Union also requested information connected to the discharge. Specifically, the Union requested the following infor- mation: (1) A full and complete copy of Heaton’s personnel file, including but not limited to, all records of prior dis- ciplinary action. (2) A full and complete copy of all materials that the Respondent relied upon in reaching its decision to termi- nate Heaton, including but not limited to, any records re- garding attendance. (3) A list of any individuals with who the Respondent spoke, interviewed, or consulted during the course of any investigation or action leading up to the decision to terminate Heaton. 3 In adopting the judge’s finding of a violation, we find it unnecessary to reach the General Counsel’s request to overrule Electrolux Home Products, 368 NLRB No. 34 (2019), as there is additional evidence of animus in this case, apart from pretext, that supports the General Coun- sel's case. See Intertape Polymer, 372 NLRB No. 133, slip op. at 5, fn. 19 (2023). As she explained in Intertape Polymer Corp., 372 NLRB No. 133, slip op. at 5 fn. 19 (2023), Member Wilcox would revisit Electrolux and find that it was wrongly decided. In adopting the judge’s finding that the Respondent has demonstrated general animus towards organizing through its prior violations of the Act, we rely on a number of recently issued cases in addition to the decision cited by the judge. See, e.g., Starbucks Corp., 373 NLRB No. 53 (2024) (unlawful threats, threats of job loss, coercive interrogations); Starbucks Corp., 373 NLRB No. 45 (2024) (threats of loss of benefits in picking up shifts in other stores, threats of economic reprisals including no raise, solicitation of grievances and promises to remedy them); Starbucks Corp., 373 NLRB No. 44 (2024) (threats of loss of benefits, discrimina- torily removing postings from bulletin board); Starbucks Corp., 373 NLRB No. 33 (2024) (threats of losses of benefits and wage increases, coercive interrogations). 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (4) Copies of any disciplinary action taken against Part- ners by the Respondent at the Astor Place location on the basis of “failure to adhere to time and attendance poli- cies” from July 1, 2020, to the date of this email. (5) Any document(s) showing Heaton’s clock in and clock out times since from July 1, 2021, to the date of this email. (6) Copies of any policies (including store policies, District-wide policies, regional policies, or national pol- icies) relating to the bases for discipline, including but not limited to: a) policies relating to discipline for claims of safety and security risks; and b) policies relating to discipline for failure to adhere to time and attendance policies. Since September 6, the Respondent has not bargained with the Union regarding the decision to terminate Heaton or the effects of that decision. The Respondent has also failed to provide the requested information. The General Counsel alleged that the Respondent violated Section 8(a)(5) and (1) by failing to bargain over the decision to terminate Heaton, failing to bargain over the effects of the decision, and failing to provide the requested information. The Respondent does not dispute that it failed to bargain or provide the requested information. Applying 800 River Road Operating Co., LLC d/b/a Care One at New Milford, the judge found that the Re- spondent had no obligation to bargain over the decision to terminate Heaton. 369 NLRB No. 109 (2020), enfd. 848 Fed.Appx. 443 (D.C. Cir. 2021) (unpub.) (“Care One”). In Care One, the Board, overruling Total Security Man- agement Illinois 1, LLC, 364 NLRB 1532 (2016), held that upon commencement of a collective-bargaining relation- ship an employer has no obligation to bargain prior to im- position of discretionary discipline, so long as that disci- pline is “in accordance with an established disciplinary policy or practice.” Care One, supra, slip op. at 7. On that basis, the judge dismissed all of the 8(a)(5) and (1) allega- tions without separately analyzing the General Counsel’s allegations that the Respondent also violated the Act by failing to bargain over the effects of the decision and fail- ing to provide the requested information. The General Counsel and Charging Party except to the dismissals. We find that the judge erroneously conflated the allega- tions that the Respondent failed to bargain over the deci- sion to discharge Heaton (and its effects) with the allega- tion of failure to provide information. As explained be- low, we reverse the judge and find the information-request violation. We shall sever the decisional and effects-bar- gaining allegations and retain them for further considera- tion. B. Discussion 1. Failure to provide information Section 8(a)(5) of the Act imposes on an employer the duty to bargain collectively and includes a duty to supply a union, upon request, information that will enable the un- ion to perform its duties as the bargaining representative of unit employees. Permanente Medical Group, Inc., 372 NLRB No. 51, slip op. at 6 (2023), enfd. mem. 2024 WL 1636732 (9th Cir. 2024) (citing New York & Presbyterian Hospital v. NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011)); see also NLRB v. Acme Industrial Co., 385 U.S. 432, 435– 436 (1967). This duty is statutory and exists regardless of whether there is a collective-bargaining agreement be- tween the parties. American Standard, 203 NLRB 1132 (1973). Information concerning wages, hours, and other terms and conditions of employment for bargaining-unit employees is presumptively relevant, as it goes to the core of the employer-employee relationship. Teachers Col- lege, Columbia University, 365 NLRB No. 86, slip op. at 4 (2017), enfd. 902 F.3d 302 (D.C. Cir. 2018). In addition, information that would allow the Union to investigate pos- sible disparate treatment, including requests for prior dis- cipline of bargaining unit employees, is presumptively rel- evant. Grand Rapids Press, 331 NLRB 296, 299 (2000); Postal Service, 307 NLRB 1105, 1109–1110 (1992), enfd. 17 F.3d 1434 (4th Cir. 1994). We find that the information requested by the Union in its September 6 email is presumptively relevant to the per- formance of its statutory obligations. The Union sought information relating to the Respondent’s investigation preceding the termination of bargaining unit employee Heaton, as well as disciplinary action taken against other unit employees for time and attendance infractions, and the Respondent’s time and attendance policies more gen- erally. Although the Respondent generally denied the ob- ligation to bargain over the discharge of Heaton, the Re- spondent did not dispute the relevance of the requested in- formation. Accordingly, we hold that the Respondent’s failure to provide the information requested by the Union on September 6, 2022, violated Section 8(a)(5) and (1) of the Act. 2. Severance of remaining failure-to-bargain allegations As noted above, the complaint also alleged the Re- spondent violated Section 8(a)(5) and (1) by failing to en- gage in predecisional and effects bargaining over the ter- mination of bargaining unit employee Heaton, and the General Counsel and Charging Party except to the judge’s failure to find those violations. As to the decisional bar- gaining allegation, they argue, among other things, that Care One should be overruled. We find that it will STARBUCKS CORP. 3 effectuate the policies of the Act to sever these allegations and retain them for further consideration. AMENDED CONCLUSIONS OF LAW Substitute the following for the judge’s Conclusion of Law 3: “3. On and after September 6, 2022, the Respondent violated Section 8(a)(5) (1) of the Act by failing and re- fusing to provide requested information that is relevant and necessary to the Union's performance of its functions as the collective-bargaining representative of the Re- spondent's unit employees.” ORDER The National Labor Relations Board orders that the Re- spondent, Starbucks Corporation, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees for supporting Workers United (the Union) or engaging in any other protected concerted activities. (b) Failing and refusing to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees. (c) In any like or related manner interfering, restraining, or coercing employees in the exercise of the rights guar- anteed 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 Rhythm Heaton reinstatement to their former position or, if their position no longer exists, to a substantially equiv- alent position, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Heaton whole for any loss of earnings and other benefits, and for any other direct or foreseeable pe- cuniary harms, suffered as a result of their unlawful dis- charge, in the manner set forth in the remedy section of the judge’s decision. (c) Compensate Heaton for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 2, within 21 days of the date the amount of backpay is fixed, either 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 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, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting by agreement or Board order, a report allocating the back- pay award to the appropriate calendar year(s). (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Heaton, and within 3 days thereafter, notify Heaton in writing that this has been done and that the discriminatory discharge will not be used against them in any way. (e) File with the Regional Director for Region 2, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Heaton’s corresponding W-2 form reflecting the backpay award. (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) Furnish to the Union in a timely manner the infor- mation requested on September 6, 2022. (h) Post in English and Spanish at its Astor Place, New York, New York facility, copies of the attached notice marked “Appendix A.”4 Copies of the notice, on forms provided by the Regional Director for Region 2, after be- ing signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. 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. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, copies of the notice to all current employees of paper notices also applies to the electronic distribution of the notices if the Respondent customarily communicates with its employees by elec- tronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notices reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and former employees employed by the Respondent at any time since August 17, 2022. (i) Within 21 days after service by the Region, file with the Regional Director for Region 2 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 allegations that the Re- spondent violated Section 8(a)(5) and (1) by failing and refusing to engage in bargaining over the decision and the effects of the decision to terminate bargaining unit em- ployee Heaton are severed and retained for further consid- eration. Dated, Washington, D.C. August 14, 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 vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT discharge or otherwise discriminate against you for supporting Workers United (the Union), or engaging in any other protected concerted activities. WE WILL NOT fail and refuse to bargain collectively with the Union by failing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as your collective-bargaining representative. 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 Rhythm Heaton full reinstatement to their for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Rhythm Heaton whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest and WE WILL also make Rhythm Heaton whole for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful discharge, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Rhythm Heaton for the adverse tax consequences, if any, of receiving a lump-sum back- pay award and WE WILL file with the Regional Director for Region 2, 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 2, 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 Rhythm Heaton’s corresponding W-2 form 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 dis- charge of Rhythm Heaton, and WE WILL, within 3 days thereafter, notify Rhythm Heaton in writing that this has been done and that their discharge will not be used against them in any way. WE WILL furnish to the Union in a timely manner the information requested by the Union on September 6, 2022 STARBUCKS CORPORATION The Board’s decision can be found at www.nlrb.gov/case/02-CA-303077 or by using the QR 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. STARBUCKS CORP. 5 Nicole Oliver, Esq., for the General Counsel. Daniel W. Srsic, Esq. (Littler Mendelson, PC) of Columbus, Ohio, and Lance Bowling, Esq. (Littler Mendelson, PC), of Houston, Texas, for the Respondent. Carley Rusell, Esq. (Cohen, Weiss & Simon LLP), of New York, New York, for the Charging Party Union. DECISION STATEMENT OF THE CASE BENJAMIN W. GREEN, Administrative Law Judge. This case concerns the August 17, 2022,1 discharge by Starbucks Corpora- tion (the Respondent) of Shift Supervisor Rhythm Heaton after Heaton contacted Workers United (the Union) and initiated an organizing campaign of the Respondent’s store at 13–25 Astor Place, New York, New Y0rk. That campaign was successful and, on May 9, the Union was certified as the bargaining repre- sentative of an appropriate unit of baristas and shift supervisors.2 (GC Exh. 4.) The General Counsel contends that the Respondent violated Section 8(a)(3) and (5) of the Act by discharging Heaton for their3 union activities and without notifying and offering to bargain with the Union regarding the decision and effects of that decision. The General Counsel also contends that the Respond- ent violated Section 8(a)(5) of the Act by refusing to furnish the Union with certain requested information regarding Heaton’s discharge. The Respondent contends it had no obligation to bar- gain or provide information regarding the discharge of Heaton, which it claims to have implemented on a nondiscriminatory ba- sis in accordance with the Respondent’s policy of progressive discipline. I find merit to the 8(a)(3) allegation, but will dismiss 1 All dates refer to 2022 unless stated otherwise. 2 The unit is described in the certification of representative as follows (GC Exh. 4): Included: All full-time and regular part-time Baristas and Shift Super- visors employed by the [Respondent] at its Store #825 located at 13-25 Astor Place, New York, New York. Excluded: All store managers, official clerical, confidential employees, managerial employees, guards, professional employees and supervisors as defined by the Act, and all other employees. 3 Heaton uses and will be referred to herein by the pronouns they/them. 4 I note that the record contains significant evidence that, as discussed at length below, the Respondent discharged Heaton in violation of its own policies and practices, and not “in accordance” with the same. How- ever, the General Counsel did not assert in her brief that such evidence warrants the finding of a bargaining obligation and a 8(a)(5) violation under Care One. And although the Union did make this argument, the 8(a)(5) violations are likely of less consequence given my finding of an 8(a)(3) violation and the remedies thereof. Accordingly, I will leave it the 8(a)(5) allegations. In support of the 8(a)(5) allegations, the General Counsel relies exclusively on the argument that the Board’s decision in Care One at New Milford, 369 NLRB No. 109 (2020) (Care One) should be overruled. In Care One, the Board overruled Total Security Management Illinois 1, LLC, 364 NLRB 1532 (2016) (Total Security) in holding that an employer had no obligation to bargain over serious discretionary discipline before imposing such discipline “in accordance with an estab- lished disciplinary policy or practice.”4 Slip op. at 7. The Gen- eral Counsel contends that Total Security should be reinstated as extant law in finding that the Respondent had an obligation to bargain over Heaton’s discharge and produce information rele- vant thereto. However, I am required to apply current Board law. The charges in this case were filed on September 1 and 30. The complaint issued on February 13, 2023, and the Respondent filed an answer thereto on February 24, 2023. The 2-day hearing in this case was tried before me in New York, New York, on April 19 and 20, 2023.5 On the entire record, including my observation of the de- meanor of the witnesses, and after considering the posthearing briefs filed by the General Counsel, the Respondent, and the Un- ion, I render these FINDINGS OF FACT6 JURISDICTION Based upon the pleadings, I find as follows: In the 12-month period preceding the issuance of the complaint, the Respondent, a Washington Corporation engaged in the retail sale of food and beverages at its stores throughout the United States, including the facility located at 13–25 Astor Place, New York, New York, derived gross revenues in excess of $500,000 and purchased and received at its New York stores products, goods, and materials valued in excess of $5000 directly from points outside the State of New York. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The dispute affects commerce and the Board has jurisdiction un- der Section 10(a) of the Act. to the parties to raise and brief the issue upon exception if deemed nec- essary. 5 The parties have mutually agreed upon and moved for certain cor- rections to the transcript. That motion is granted and the corrections are reflected in Appendix B attached hereto. 6 The Findings of Fact are a compilation of credible testimony and other evidence, as well as logical inferences drawn therefrom. To the extent evidence of a fact is trustworthy and not contested, the fact is gen- erally stated without reference to the underlying evidence. Testimony contrary to my findings has been discredited. In assessing credibility, I rely upon witness demeanor. I also consider the context of witness' tes- timony, the quality of their recollection, testimonial consistency, the presence or absence of corroboration, the weight of the respective evi- dence, established or admitted facts, inherent probabilities, and reasona- ble inferences that may be drawn from the record as a whole. See Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C. Cir. 2003). 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ALLEGED UNFAIR LABOR PRACTICES Rhythm Heaton and Store Management Heaton was employed at the Astor Place store from 2018 to August 2022. Heaton was hired and worked as a barista until early-2021, when they were promoted to shift supervisor. (Tr. 15, 108.) The Astor Place store opened at 6 a.m. on weekdays and 7 a.m. on weekends. (Tr. 16.) Heaton worked 4 or 5 shifts per week with a start time of 5:15 a.m. on weekdays and 6:15 a.m. on weekends. (Tr. 15.) As a shift supervisor, unlike baris- tas, Heaton had a key to the outside door of the store and the register. Heaton normally worked early shifts and was responsi- ble for opening the store. (Tr. 15–16, 47, 137–139.) Razin Khan was the store manager at Astor Place until March 2022. (Tr. 108.) Khan hired Heaton. (Tr. 108.) In March, Khan transferred to a different store and was replaced as store manager by Juan Oropeza. (Tr. 131)(GC Exh. 2 ¶ 2). Oropeza was a store manager in Brooklyn before he transferred to Astor Place. (Tr. 203–204.) Store managers are in charge of hiring employees, coaching and development of employees, and the general operation and profitability of the store. (Tr. 131–132.) The Respondent nor- mally employs an assistant store manager to support the store manager. (Tr. 135.) Store managers report to a district manager. (Tr. 132.) In 2022, Oropeza reported to District Manager Tyrell Bell. (Tr. 132)(GC Exh. 2 ¶ 1). Although store managers and assistant store managers have keys to the Astor Place store, they were not generally scheduled to open the store to start the day. Rather, a shift supervisor such as Heaton was assigned to open the store each day. (Tr. 137–139.) Oropeza testified that he considered Heaton “an amazing leader” for the following reasons (Tr. 153): During [Heaton’s] shifts, they ensured that the customers were taken care of. They ensured that the partners were heard and that they were all working efficiently. They ensured that store operations were running smoothly. . .. Being the new manager, Rhythm helped . . . create a bridge between me and the partners who didn’t know me. The New York City Just Cause Law and the New York City Addendum to the Respondent’s Partner Guide The New York City Fair Workweek or Just Cause Law pro- hibits wrongful discharge of non-probationary employees “ex- cept for just cause or a bona fide economic reason.” NYC Ad- min. Code 20-1272(a). The Just Cause Law applies to fast-food establishments with at least 30 locations nationally and defines “just cause” as an “employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business inter- ests.” NYC Admin. Code 20-1201 & 1271. The Just Cause Law outlines certain nonexclusive factors for determining just cause for discharge. NYC Admin. Code 20-1272(b). The Just Cause Law also, absent a termination for egregious misconduct, ex- cepts from evidence of just cause any prior discipline issued more than a year before the discharge and any discipline not 7 The Respondent confirmed in its brief that it adopted the NYC Ad- dendum in response to the Just Cause Law and that the NYC Addendum issued pursuant to a policy of progressive discipline. NYC Ad- min. Code 20-1272(c). Further, just cause cannot be based upon a reason that is not stated in a written explanation for the dis- charge issued within 5 days thereof. NYC Admin. Code 20- 1272(d). The employer bears the burden of establishing just cause in any proceeding brought under the Just Cause Law. NYC Admin. Code 20-1272(f). On July 4, 2021, about when the Just Cause Law went into effect, the Respondent implemented a New York City Addendum to Starbucks Partner Guide—U.S. Store Edition (NYC Adden- dum). (R. Exh. 2)(Tr. 101, 126, 129). The NYC Addendum “outlines key employment policies and guidelines for partners working at a Starbucks store in New York City.” (GC Exh. 2 p. 1). The NYC Addendum was “adopted with the intent to comply fully with all applicable laws governing employment practices and procedures in each of the various states where Starbucks does business. Nonetheless, if any policy contained in this Ad- dendum or Partner Guide conflict in any way with federal, state or local law, it is Starbucks intent to comply fully with the appli- cable law.”7 (GC Exh. 2 p. 1.) The guidance in the NYC Ad- dendum is “general in nature” and, “[d]epending on the circum- stances, Starbucks reserves the right to handle individual situa- tions appropriately as they arise.” (GC Exh. 2 p. 1.) Thus, “[t]he decision regarding corrective action or immediate separation rests within the sole discretion of Starbucks management.” (GC Exh. 2 p. 1.) The NYC Addendum provides for progressive discipline which may include a “verbal coaching, documented coaching, written warning, final warning, final written warning, demotion, or separation from employment . . ..” (R. Exh. 2 p. 11.) Accord- ing to the NYC addendum, “[t]he intent of progressive discipline is to give the partner notice and a reasonable opportunity to cor- rect performance issues or behavior, when appropriate.” (R. Exh. 2 p. 11.) Although progressive discipline is generally re- quired, the NYC Addendum states that “egregious misconduct” may result in “immediate separation from employment” without progressive discipline. (R. Exh. 2 p. 12)(Tr. 216–218). Cash handling violations are listed among examples of such egregious misconduct. (R. Exh. 2 p. 12.) The NYC Addendum includes the following policy regarding call-in requirements (R. Exh. 2. P. 7): If a partner cannot report to work as scheduled, the partner must call and speak directly with the store manager or assistant store manager with as much advance notice prior to the beginning of the shift as possible. If a manager is not in the store, the partner should notify the partner leading the shift. Leaving a message or e-mail without first making reasonable attempts to call and directly speak with a manager or the partner leading the shift is not acceptable. Leaving a message (phone, e-mail, or other) with another barista is not an acceptable form of providing no- tice. Calling in to report off does not prevent an attendance occur- rence. Partners are required to follow call-in requirements every day they cannot report to work as scheduled. Failure to “Attendance and Punctuality Policy was designed to comply with NYC’s progressive discipline requirement[.]” R. Br. p. 3–4. STARBUCKS CORP. 7 follow call-in requirements is considered a no call/no show. The NYC Addendum includes the following policy on attend- ance occurrences (R. Exh. 2 p. 7–8): Attendance Occurrences (any combination of unexcused ab- sences, tardiness or leaving work early) for hourly partners will be tracked over a rolling twelve (12) month period. Partners are individually responsible for tracking their number of occurrences and level of corrective actions. Partners may be subject to a higher level of corrective action or separation even if a previous lower level of corrective action was not issued. For example, if a partner incurs five (5) occurrences prior to receiving a Written Warning or any other lower level of corrective action, the partner will still be subject to a Final Writ- ten Warning. In addition, if a partner has previous corrective actions for violations other than attendance, the partner will re- ceive the next level of corrective action for any subsequent at- tendance violations. For example, if a partner was issued a Written Warning for violating Starbucks dress code policy, and subsequently incurs four attendance occurrences, the partner will receive a Final Written Warning. In the event of an unplanned absence due to a sudden injury or emergency, or when the partner is using paid sick leave allow- able by law or Starbucks policy, the partner will not receive an attendance occurrence. . . . 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Attendance occurrences will be issued as follows: Tardy One occurrence when a partner is late for their scheduled shift. Partners are expected to be ready to begin working at the exact start time of their sched- uled shift and to return from breaks on time. If a partner is five (5) minutes late or more, they will receive one occurrence under this policy. If a partner shows a pattern of being tardy by less than five (5) minutes and the behavior doesn’t resolve after coaching, occurrences may also be issued going forward for tardies of less than 5 minutes. Late Call-In One occurrence when a partner calls in late. For purposes of this policy, a late call-in is defined as reporting an absence or tardy at or after the start of a scheduled shift. Absence Two occurrences each day a partner is absent from a scheduled shift. For purposes of this policy, an absence is defined as missing at least half of a scheduled shift. Early Departure Five occurrences for departing before the scheduled end time of the shift without approval in advance from the supervisor or manager running the shift. Note that “walking off” a shift paired with inappropriate or disruptive comments may be just cause for separation of employment. No Call/No Show Five occurrences when a partner calls in to report an absence more than two hours after the start of a scheduled shift or fails to call in to report an ab- sence. Corrective action for attendance occurrences will be issued as follows: Documented Coaching Written Warning Final Written Warning Separation OCCURENCES Within 30-day intro- ductory period 3 Within a rolling 12- month period 3 4 5 7 STARBUCKS CORP. 9 The length of a lateness (e.g., 10 minutes or 2 hours) does not impact the number of attendance occurrence points incurred for that lateness. (Tr. 124–125.) Oropeza testified that a lateness, absence, or failure to call in can be excused. (Tr. 151–152, 210– 211, 219–221.) For example, according to Oropeza, commuting delays are a valid excuse, but failing to wake up on time is not. Oropeza testified that texting rather than calling in notice of an absence is a no call/no show. (Tr. 212.) Oropeza indicated that an employee’s “pattern of not meeting expectations” is signifi- cant. (Tr. 152.) Oropeza will attempt to support and accommo- date an employee when possible to help that employee avoid re- peated attendance violations and separation. (Tr. 148–153, 175.) Oropeza always assumes “positive intent” that an employee “did not mean to breach policy.” (Tr. 149.) Khan testified that, before the NYC Addendum issued, the Re- spondent did not have a specific standard in place for issuing at- tendance discipline. Khan indicated that an employee was more likely to receive written discipline as opposed to verbal coaching if that employee was consistently late. (Tr. 12.7.) Heaton’s Union Activities and History of Discipline Heaton first contacted the Union and began organizing activ- ities in late-2021. Heaton was part of a small employee organ- izing committee that initially talked to other employees to deter- mine their sentiment in support for or against the Union. Heaton did not engage in these conversations with managers present. (Tr. 16–18.) On one occasion, while Heaton was speaking to another employee regarding the Union, Khan asked “what was going on?” Heaton responded that they were just talking about the weather. (Tr. 39, 87.) On November 1, 2021, Khan issued a final written warning to Heaton for misconduct described in the disciplinary corrective action form as follows (GC Exh. 5) (Tr. 31): Rhythm violated Starbucks Cash handling policy. On 10/30/21, Rhythm was the closing Shift Supervisor and failed to secure all till bags inside the safe when they left one till bag of $300.00 outside of the safe. As per policy, all safe funds must be put away inside the safe at the end of closing. Rhythm has not met expectations with Time and Attendance punctuality when reporting to work late on the following dates: On 8/14/21—12 minutes late On 8/25/21—4 minutes late On 10/24/21—14 minutes late Going forward, Rhythm is expected to satisfactorily carry out their job duties and adhere to all Starbucks standards, policies, and procedures as outlined in the Partner Guide. Failure to im- prove may lead to their separation of employment. Khan consulted with then District Manager Brenna Dee Han- sen and an automated coaching assistant prior to issuing this dis- cipline. The coaching assistant is a tool managers can use to help determine the proper level of corrective action to issue for a pol- icy violation. (Tr. 108–109.) Khan drafted the disciplinary lan- guage and it was revised by Hansen. (Tr. 110.) Heaton was not previously disciplined for the lateness referenced in the Novem- ber 1, 2021 final written warning. (Tr. 32.) As noted above, un- der the NYC Addendum, an employee does not incur an attend- ance occurrence point for a lateness under 5 minutes and is not eligible for a documented coaching until incurring three points (e.g., three lateness). (Tr. 195–197.) On January 20, Heaton was late about 1 hour and 42 minutes because they misread the schedule and did not believe they were scheduled to work. (Tr. 32–34, 47, 61–62, 70, 113–114) (GC Exh. 6, 8). Heaton told Oropeza they were concerned about their job, and Oropeza said “he would . . . figure it out.” (Tr. 33, 113– 114.) On January 24, Khan and Bell exchanged emails in which Bell asked whether Heaton had prior attendance occurrences or per- formance issues. Khan responded, “No. They are punctual. And performance wise has improved.” (GC Exh. 15.) Bell directed Khan to consult partner relations. (Tr. 112–113.) On January 31, Jessica Halayko, partner relations, posted the following intake notes (GC Exh. 16) (emphasis in original): —SM notes that SS Rhythm overall performance has im- proved since FWW CA and overall they are punctual and do not have performance concerns —SM notes that SS Rhythm has been asking every day if they are getting fired —SM has told SS that "the case is under review" —SM believes that if ASM didn't get in touch with SS Rhythm they might have been even later —Schedule was posted on time SPRA asked why SM is seeking legal consult? SM said "they can't speak to that, DM just directed them to ask for legal con- sult", Advised SM that I see no reason why legal consult would be necessary at this time —SM did not seem to want to SEP SS Rhythm, felt like the NEEDED to SEP based on Just Cause DM has asked SM lo "call it in" CA History: FWW CA attached lo case for leaving cash out of safe overnight and 3 tardy Recommendation: —Advised SM Raz that he and DM are decision makers in this situation and while I could support SEP for additional tardy oc- currence while on FWW CA I could also support memorialized coaching conversation to address the lateness, remind SS of FWW CA status and explain that further violation could lead to SEP. —Discussed JC with SM and reiterated that when behavior has improved and partner has one attendance occurrence the SM is not obligated to immediately move to SEP as each situation is different. —Advised SM to circle back to DM to discuss guidance given and if DM and SM are aligned to SEP, they can reach back out to me to review NoS- advised that if DM wants legal consult they should reach out lo SPRA directly to discuss reasoning. On February 1, Heaton emailed District Manager Bell about being “late two weeks ago while being on a final.” (GC Exh. 8.) In this email, Heaton did not object to receipt of a warning re- garding the October 31, 2021 cash handling incident or January 20 lateness. However, Heaton expressed frustration that the cash handling incident resulted in a “final” warning. Heaton noted that the store was short staffed on October 31, 2021, because two employees were sent home that day. Heaton also noted that the incident occurred during a stressful period when the store was generally short staffed as a result of the COVID pandemic and when Heaton was regularly working extra shifts. Regarding the January 20 lateness, Heaton stated, “I was late on January 20th because I was burnt out, and thought I had the day off and had just misread the schedule. I rushed to get there when they called, and it was another honest and I’ll admit critical mistake.” (GC Exh. 8.) 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On February 1, Bell responded by email which stated, in part, as follows (GC Exh. 8): I can honestly share that Raz is following the correct protocol at Astor when it comes to holding partners accountable fairly and consistently, and within the company’s current guidelines. As far as the final you received, that is the consistent level of accountability when till bags are left unsecured as it falls under our safety and security guidelines. Ras will be connecting with you very soon on next steps in re- gards to the shift on January 20th. Under Just Cause Legisla- tion, he had to call in for a consultation regarding how to handle this situation since you are on a Final Warning. It took a little longer than expected but he will share what was decided and how we will go from here. On February 1, Khan emailed Halayko and indicated that he and Bell were willing to give Heaton a “memorialized conversa- tion” for the January 20 lateness. (GC Exh. 16) (Tr. 114). On February 2, Halayko agreed that “a memorialized coaching is a great approach to this concern as it can clarify without a shadow of a doubt that SS Rhythm understands that any further violation of Starbucks policy (T&A or otherwise) could lead to SEP.” (GC Exh. 16.) On February 4, 2022, Oropeza gave Heaton a corrective action form which did not have checked the level of discipline (e.g., documented coaching)8 but stated as follows (GC Exh. 6): This document serves as a memorialized coaching conversa- tion with SS Rhythm due to ongoing T& A violations since FWW CA was delivered in November 2021 for T&A and cash handling. Since the FWW was delivered, SS Rhythms overall job performance has improved however they were late 1 hr and 48 mins to a scheduled shift on 01/20. SS Rhythm notes that they misread the schedule with caused the T&A occurrence. SS Rhythm is responsible for reporting to work on time and punctual for all scheduled shifts as this is essential to a store’s efficient operations in creating customers and partners the Star- bucks Experience. Moving forward they are expected to follow Starbucks Attend- ance and Punctuality standards-including working posted scheduled, on time, follow all call out standards and communi- cate with Store Manager any questions or clarification they might have. Further violation of any Starbucks policy while on FWW could result additional CA up to and including SEP. I take administrative notice that the petition in case 02-RC- 290378 was filed on February 10, 2022 and a mail ballot election was conducted with an April 22 deadline for the receipt of bal- lots. (Tr. 70.) I also take administrative notice that the Union 8 The Respondent’s corrective action forms contain, under “Correc- tive Action Type,” boxes to be checked for a documented coaching, writ- ten warning, or final written warning. It appears that the documented coaching box may or may not be checked for verbal coaching. (GC Exh. 20.) 9 I did not find particularly credible Khan’s convenient and uncorrob- orated testimony that he and Bell were aware of Heaton’s union activity before issuing the February 4 corrective action. As noted in the was elected as the representative of the unit by a vote of 11 to 2 (with 5 nondeterminative challenged ballots). Khan testified that he was aware before issuing the February 4 discipline to Heaton that Heaton had engaged in union activity. According to Khan, before that discipline issued, three employ- ees told him Heaton spoke to them in support of the Union. (Tr. 114–117.) Khan claimed he relayed this information to Bell.9 (Tr. 120.) After the petition was filed on February 10, Heaton asked Khan how he felt about the Union. Khan said he supported the Union but could not do so publicly. (Tr. 23.) Likewise, after Oropeza replaced Khan as Astor Place store manager, Heaton asked him how he felt about the Union. Like Khan, Oropeza said he supported the Union but could not do so publicly. (Tr. 24.) Heaton and Oropeza had a few other conver- sations regarding the Union. During some of these conversa- tions, Oropeza asked Heaton to talk to newly hired employees about the Union. On one occasion, Oropeza initially took issue with a Union flyer that was posted at the store as “aggressive.” However, Oropeza did not remove the flyer after Heaton ex- plained it was just intended to show support for the Union. (Tr. 24–25.) On July 13, Heaton sent an email to recipients including Bell and Oropeza with the subject, “Astor Place demand for bargain- ing change of hours.” This email stated as follows (R. Exh. 5) (GC Exh. 2 ¶ 5): As you know, the baristas and shift supervisors at the Astor Place store voted to be represented by Workers United. We are looking forward to working with you and having our voices heard in this new way. On behalf of the Astor Place union negotiating committee, we are hereby requesting that no changes occur at the store until we have a collective bargaining agreement in place. Additionally, we are hereby requesting to bargain about the new store operating hours for partners at the Astor Place store, planned to go into effect August 1. A decision to prolong the work day, and make partners work both earlier than their scheduled availability or later than their scheduled availability is of utmost importance to the Union to ensure partner health, safety and well-being. Furthermore, we are hereby requesting to bargain about details of partner staffing after the change in operational hours, includ- ing but not limited to: the rate of pay for partners who are required to extend their availability; scheduling options for those who are unable to open their avail- ability;  the proposed weekly hours for all partners after opera- tional hours are extended. Credibility section, the store managers appeared to tailor their testimony to support a narrative at odds with more reliable evidence. And given what appeared to be (as described below in the Analysis section) the Re- spondent’s exaggerated disciplinary reaction to Heaton’s July 13 letter on behalf of the Union and August 7 lateness, I think it more likely than not that the Respondent did not learn of Heaton’s union activity until after February 4. However, I would find a violation either way. STARBUCKS CORP. 11 Finally, in connection with these requests to bargain, we are hereby requesting the following information:  the store operational hours for other NYC stores;  the sales and customer transaction information during the extended operational hours for the past six months; a copy of all reports made to Starbucks in the area in the past 12 months involving incidents outside of NYC stores before and after store closing. We request that our negotiations take place in advance of the start of the change in operational hours, and we request that Starbucks provide us the information below sufficiently in ad- vance of our negotiations. The parties stipulated that Heaton’s July 13 email “constitutes union and/or protected concerted activities as defined by the Act.” (GC Exh. 2 ¶ 5.) Heaton Discharge In July, the Respondent advertised for an additional shift su- pervisor at the Astor Place store because it was anticipated that Astor Place assistant store manager Josh Delgado would leave to become store manager at a different location.10 (Tr. 53, 179– 180.) Heaton also testified without contradiction that the Astor Place store was generally short staffed during the pandemic as it was difficult to retain baristas and shift supervisors. (Tr. 53–5.4) On August 7, Heaton’s shift was scheduled to begin at 6:15 .a.m. (Tr. 25–26) (GC Exh. 2 ¶ 6). At about 6:40 a.m., an em- ployee called to tell Oropeza that Heaton had not arrived to open the store. Oropeza called Heaton and left a voice-mail message. Oropeza went to the store and arrived at about 7:20 or 7:25 a.m. Employees were waiting outside without a key to open the door. The staff prepared for business and the store opened at about 8 a.m. (Tr. 157–158) (GC Exh. 2 ¶ 7). Heaton admits they did not hear the alarm and overslept. Upon waking up, Heaton had texts and missed calls from Oropeza and baristas. (Tr. 55, 161.) Heaton called Oropeza to apologize and say they would be late. Oropeza told Heaton to get to the store as soon as possible. (Tr. 26) Heaton arrived at work at 9:57 a.m. (Tr. 25–26, 81) (GC Exh. 2 ¶ 6). Heaton tes- tified that, after arriving, they again apologized to Oropeza and expressed concern about losing their job. According to Heaton, Oropeza assured them it was okay and said, “not to even worry about it.” (Tr. 27.) Oropeza’s described this conversation with Heaton somewhat differently, as follows (Tr. 161): I could tell that [Heaton] had something in the back of their mind. And as store manager it’s my job to ensure that the part- ners are not working under stress, so when we had the conver- sation I told them that in that moment in time that . . . this was not a priority for me, I was just happy that they were okay – because a million things went through my head when I did not hear from Rhythm – and that we would eventually talk about it, but for the moment to please not be concerned or worried.11 (Tr. 161.) Oropeza testified that he did not, on August 7, decide whether 10 The parties stipulated that Delgado was an assistant store manager at the Astore Place store from July 18 to October 22. (GC Exh. 2 ¶ 3.) 11 As discussed in the credibility section below, I credit Heaton’s ver- sion of this conversation. I note my impression that Oropeza was Heaton would receive discipline for the lateness. (Tr. 160.) Oropeza was not aware of Heaton’s history of discipline at that time and did not believe the incident would result in discharge. (Tr. 161.) Oropeza notified Bell that the store opened late on August 7 as it would affect sales. (Tr. 162.) On August 8, Bell advised Oropeza he believed the August 7 lateness would bring Heaton up to a separation. Oropeza testi- fied that the February 4 memorialized coaching was an “ex- tended final” warning. (Tr. 189.) Bell asked Oropeza to call partner relations regarding the matter before they discussed the next steps. (Tr. 163.) On about August 9, Oropeza called partner relations. (GC Exh. 18—S031)12 (Tr. 163). Oropeza also submitted to partner relations the documents reflecting Heaton’s history of discipline. (Tr. 163.) The General Counsel entered into evidence certain records that are titled “HR Legacy Case,” which appear to reflect communications between Oropeza and partner relations associ- ates. Those records contain the following description of Oropeza’s August 9 call to partner relations (GC Exh. 18— S031-S032): Resolution Requested: SM Juan states it’s official on paper SS Rhythm is on a FWW. Would feel comfortable if there was any accountability to put on SS Rhythm, SM Juan would do a DC. The only thing SM Juan has on SS Rhythm is a FWW and a memorialized coaching. No other information is show- ing that this has been habitual or addressed. Doesn’t even if know if any documentation needs to be handed to SS Rhythm at this point. Called PR due to DM advisement and any advice PR can give is appreciated. Details: SM Juan states: SM Juan has been in store about 3 months SS Rhythm was tardy (8/7/22). As a result the store opened late and sales were lost that day. SS Rhythm was about 3 hours late. SM Juan sent text message and called SS Rhythm several times to see if they were okay. SS Rhythm called SM Juan back at 9 AM and said they prob- ably didn’t hear alarm go off and said would get there as soon as possible, which SS Rhythm did[.] Doesn’t feel comfortable moving forward with separation although SS Rhythm is on a CA[.] What SM Juan has in front of him doesn’t validate just cause[.] SS Rhythm hasn’t had any T&A issues that concern SM Juan[.] Doesn’t feel Cas are cohesive in telling the story that says this partner deserves to be separated. CA history (date of incident/date delivered/Level/Situa- tion/Signed) 11/1/2021: FWW/Unsatisfactory performance/signed 2/4/2022: Memorialized coaching conversation due to ongo- ing T&A violation. attempting to explain why he told Heaton not to worry rather than just testifying to what was actually said. 12 Documents produced by the Respondent at hearing were number stamped. Those documents are referred to herein by the letter S and the last 3 numbers (e.g., S031). 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Oropeza testified that, at this time, based upon his review of Heaton‘s personnel file, including the November 1 final written warning and February 4 “extended” final written warning, the next disciplinary step was termination. In response to a leading question from the Respondent’s counsel, Oropeza initially testi- fied that he discussed Heaton’s attendance points with partner relations and determined that Heaton had enough points to be eligible for termination. (Tr. 164.) However, Oropeza later ad- mitted he did not talk to Bell or partner relations regarding the points Heaton accumulated. Rather, they simply discussed the progression of discipline from a final written warning on No- vember 1 to an “extended” final written warning on February 4 to a separation on August 17. (Tr. 189–190.) More specifically, when Oropeza was asked why Heaton accumulated five points for a no call/no show even though Heaton showed up for work, Oropeza admitted, “I don’t have an answer.” (Tr. 201.) Oropeza also testified that he did not recall discussing that issue at the time. (Tr. 201–202.) Oropeza further described his conversation with partner relations as follows (Tr. 164–165): I told him that I needed guidance because with documents that we have on hand, the next step would be for separation of em- ployment. But I also recall noting to them that I personally did not want to move forward in that direction because . . . the whole time I was working with Rhythm since March, . . . we never had an instance of tardiness or absenteeism; that was just for absenteeism. We worked so well together I did not want to lose the partner. And I . . . asked if there was any way . . . we can do something. I was coached, and I was told that . . . as much as I care and as much I may not want to move forward with this . . . I was asked, . . . if it was any other partner what would your steps be? To which my response was I'll do the right thing . . . doesn't matter really. And so she agreed. After speaking to public relations, Oropeza spoke to Bell and again expressed his belief that Heaton should not be discharged. (Tr. 166.) However, according to Oropeza, after consulting with partner resources, he and Bell made the decision to terminate Heaton because it was “the only fair and logical thing to do.” Oropeza claimed that failing to terminate Heaton “would mean that we weren’t being fair with . . . everyone else.” (Tr. 155– 156.) Oropeza did not desire this outcome and initially testified that he did not agree with Heaton’s discharge. (Tr. 156.) How- ever, upon further questioning by Respondent’s counsel, Oropeza testified that he agreed with the outcome “in the end” because there was “no room to do otherwise.” (Tr. 156.) Oropeza denied he or anyone else wanted to terminate Heaton because of their (Heaton’s) involvement with the Union. (Tr. 155–156, 166.) On August 17, Heaton opened the store as usual but, about noon, Oropeza gave Heaton a notice of separation. The notice of separation described the reason for Heaton’s discharge as fol- lows (GC Exh. 7) (Tr. 167–168): This document shall serve as a notice of separation from em- ployment with Starbucks Coffee Company for Rhythm Heaton due to violation of the Starbucks attendance and punctuality policy. Rhythm received a memorialized final corrective on 2/4/2022 13 The parties stipulated that, from August 1, 2021 to August 31, 2022, the assistant store manager position at the Astor Place store was a regarding a breach in the time and attendance policy, On 8/7/2022 Rhythm was scheduled to start work at 6:15am, Rhythm overslept causing them to be late for their scheduled shift. They clocked in at 9:57am, the partner was 3 hours and 42 minutes late for their shift. Being that Rhythm was the opening keyholder, the store did not open on time causing loss of sales for the day and poor cus- tomer experience. Rhythm Heaton is no longer employed with Starbucks Coffee Company as of 8/16/2022. Rhythm will receive loss of hours paid for scheduled shifts as per NYC Just Cause law. Oropeza “expressed how devastated [he] was by the fact that this decision had to be made.” (Tr. 167..) Heaton testified that Oropeza said “he didn’t want to see me go and that he couldn’t really do anything about this.” (Tr. 28, 49) According to Hea- ton, Oropeza said he “fought to keep me.” (Tr. 72-73) (R. Exh. 1). Heaton testified that Oropeza said he would make it easier for them to reapply for employment and “it wouldn’t be trouble if I did reapply.” (Tr. 28.) Oropeza testified that he “was defi- nitely sorry that [he] could not do more in this case to support Rhythm, as is [his] job.” Oropeza also testified that he told Hea- ton he was available to provide a reference for future job pro- spects. (Tr. 167.) Oropeza confirmed he told Heaton that part- ners were not discouraged from reapplying for open positions and there was a chance of being rehired. (Tr. 178) Before leav- ing, Heaton spoke to Assistant Store Manager Delgado. Delgado said he did not want to see Heaton go and promised to offer Hea- ton a job if he (Delgado) became a store manager.13 (Tr. 28–29.) Shortly after being discharged, Heaton reapplied to work at the Astor Place store. (Tr. 50.) Oropeza testified that Heaton was not considered for rehire because there was no openings at the time for a barista. (Tr. 179.) As noted above, the Respondent had already been advertising for a shift supervisor in July. (Tr. 53.) Oropeza hired a shift supervisor to fill this opening after Heaton was discharged. (Tr. 184–185.) Oropeza did not explain why Heaton was not considered for this open shift supervisor position. During the time that Heaton worked for the Respondent, Hea- ton received no documented discipline other than the corrective actions issued on November 1, 2021, February 4, and August 17. (GC Exh. 2 ¶ 8.) On August 19, Heaton submitted to the Respondent a form used to internally appeal the discharge, which stated as follows (R. Exh. 1—S035): The notice of separation makes reference to me receiving a fi- nal corrective form on 2/4/2022, but I only received a memori- alized coaching conversation and it not being a final and only coaching conversation was reinforced by my [store manager], Raz Khan, at the time. Tyrell Bell didn’t inform me if it was supposed to be a final, and our only communication on this topic was in the emails we exchanged on 2/1/2022. I think a final notice would be beyond reasonable to give me for being so late, but separation is an inappropriate escalation, and given the context that I’m such an active member in unionizing at my store, this feels like an attack due to the reference of a final supervisory position within the meaning of Sec. 2(11) of the Act. (GC Exh. 2 ¶ 4.) STARBUCKS CORP. 13 notice that doesn’t exist. I’m trying to assume positive intent, but even my current [store manager] told me that he fought to keep me because I’m a good employee and made a human mis- take, there was no paper trail, such a long time in-between at- tendance violations, and the [district manager] fought to keep me out. On August 26, Senior Partner Relations Associate Corrin Crowley emailed Oropeza regarding what she understood to be Heaton’s open case and asked that Oropeza provide her with the “proposed notice of separation for Rhythm Heaton so I can re- view before delivery[.]” (GC Exh. 19). On August 31, Oropeza responded to Crowley, “Rhythm was separated as of 8/17 as per DM Tyrell Bell request (to be done before heading on vacation).” On August 31, Crowley sent Bell an email which stated as follows (GC Exh. 19): Just a reminder for you and your team. All separation docu- ments have to be reviewed by Partner Relations in conjunction with our employment attorney for delivery. I might have caused some confusion so I wanted to ensure we were all on the same page moving forward. As reflected in the pleadings, on about September 6, the Union demanded that the Respondent bargain collectively about the ef- fects of the Respondent’s decision to discharge Heaton and re- quested that the Respondent furnish the following information (GC Exh. 1(f) ¶ 8(b)); 1(g)): 1) A full and complete copy of Heaton’s personnel file, includ- ing but not limited to, all records of prior disciplinary action. 2) A full and complete copy of all materials that the Respond- ent relied upon in reaching its decision to terminate Heaton, in- cluding but not limited to, any records regarding attendance. 3) A list of any individuals with who the Respondent spoke, interviewed, or consulted during the course of any investiga- tion or action leading up to the decision to terminate Heaton. 4) Copies of any disciplinary action taken against Partners by the Respondent at the Astor Place location on the basis of “fail- ure to adhere to time and attendance policies” from July 1, 0220, to the date of this email. 5) Any document(s) showing Heaton’s clock in and clock out times since from July 1, 2021, to the date of this email. 6) Copies of any policies (including store policies, District- wide policies, regional policies, or national policies) relating to the bases for discipline, including but not limited to: a) policies relating to discipline for claims of safety and security risks; and b) policies relating to discipline for failure to adhere to time and attendance policies. 7) All documents indicating receipt by Heaton and/or any other employee at the Astor Place location of any and all such poli- cies in (6). Since September 6, the Respondent has not bargained with the Union regarding the effects of the Respondent’s decision to dis- charge Heaton or provided the information requested by the Union. (GC Exh. 2 ¶ 9–10.) On September 12, by email, Partner relations Consultant Norma Martinez denied Heaton’s August 19 appeal of the dis- charge. Martinez described the discharge decision as “appropri- ately within your leader’s discretion and therefore will not be overturned.” (GC Exh. 11) (Tr. 30). Comparator Evidence The record contains corrective actions reflecting disciplines of Astor Place store employees other than Heaton, including those described below (grouped by employee as identified by their in- itials). (GC Exh. 20) (R. Exh. 6–8). AB July 15 (GC Exh. 20 p. 52—S297): Documented coaching for lateness during training and taking unauthorized breaks. August 3 (GC Exh. 20 p. 53—S298): Written warning for four lateness (July 25, 30, August 2–3), including lateness on two consecutive days. August 17 (GC Exh. 20 p. 51—S296): Final written warning for lateness on three consecutive days (August 15-17). September 26 (R. Exh. 7—S284): Separation for four lateness (September 3, 16–18), including lateness on three consecutive days. AS April 22 (GC Exh. 20 p. 49—S294): Final written warning for five lateness warning (February 13, 29, March 6, 25, April 8) while on a December 7, 2021 written warning (not in evidence) for attendance. CM March 15, 2023 (GC Exh. 20 p. 22—S267): Documented coach- ing for working without a hair net (March 7, 2023) and texting (not calling) in an absence (March 8, 2023). DP March 8, 2023 (GC Exh. p. 24—S269): Verbal documented coaching for six lateness (November 21, December 2, 2022, Jan- uary 2, February 18, March 1, 2023) and failing to call out sick (February 10, 2023). EC September 6 (GC Exh. 20 p. 7—S252): Documented coaching for three lateness (August 7, 23, September 1). GJ March 28, 2023 (GC Exh. 20 p. 20—S265): Documented coach- ing for four lateness (December 23, 2022, January 2, February 8, March 4, 2023). JH February 10, 2023 (GC Exh. 20 p. 14—S259): Documented coaching for three lateness (January 5, 22, February 1, 2023). KB May 23 (GC Exh. 20 p. 5—S250): Written warning for five late- ness (March 25, April 24, 30, May 2, 21). 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD August 12 (GC Exh. 20 p. 3—S248): Final written warning for no-call/no-show. KP October 18, 2023 (GC Exh. 20 p. 30—S275): Documented coaching for three lateness (June 18, September 19, October 3, 2023) and a dress code violation. February 9, 2023 (GC Exh. 20 p. 28—S273): Written warning for three lateness (November 18, December 12, 2022, and Feb- ruary 9, 2023). MA June 2 (R. Exh. 6—S287): Separation for three lateness (April 29, May 10, 13) while on a November 30, 2021 final written warning (not in evidence) for attendance violations. MO August 9 (GC Exh. 20 p. 1, 47—S010, S292): Verbal docu- mented coaching for five lateness (July 15, 22, 24, August 1, 6) and texting in an absence (August 8) . September 20 (GC Exh. 20 p. 46—S291): Written warning for an absence (September 15) and a lateness (September 16). October 12 (GC Exh. 20 p. 45—S290): Final written warning for three lateness (September 30, October 5, 9) and failure to begin work after clocking in (October 12). Undated (R. Exh. 8—S288): Separation for a lateness (Novem- ber 1) and two absences (November 13, 16). MV October 7 (GC Exh. 20 p. 36—S281): Verbal documented coaching for texting in an absence. NJ August 13 (GC Exh. 20 p. 55—S300): Verbal documented coaching for three lateness (June 8, July 6, August 13) and tex- ting in an absence (August 12). PQ August 9 (GC Exh. 20 p. 33—S278): Verbal documented coach- ing for three lateness (July 9, August 1, 9). RG November 17 (GC Exh. 20 p. 11—S256): Documented coach- ing for three lateness, including lateness on two consecutive days (October 9, November 5-6). SH February 12, 2023 (GC Exh. 20 p. 19—S62): Documented coaching for three lateness (December 17, 2022, January 29, February 5, 2023). February 25, 2023 (GC Exh. 20 p. 15—S260): Written warning for two lateness (February 25 and March 4, 2023). CREDIBILITY Where the record contains conflicting testimony by Heaton and Oropeza or Khan, I credit Heaton. I found Heaton to be an extremely credible witness. Heaton listened patiently and answered questions carefully regardless of who was conducting the examination. Heaton was not argumentative and freely ad- mitted facts potentially supportive of the Respondent’s case. Likewise, Heaton made no attempt minimize evidence that they violated company policy on certain occasions or exaggerate evi- dence in support of the General Counsel’s case. Rather, Heaton was dedicated to the role of a neutral fact witness (not an advo- cate) attempting to provide accurate unbiased testimony. Conversely, I did not find Oropeza entirely credible. Oropeza was susceptible to suggestion or correction by the Respondent’s counsel and appeared inclined to present a narrative which was contradicted by other evidence. For example, Oropeza initially testified in response to a leading question that he discussed with partner relations that Heaton had enough attendance points to trigger termination, but later admitted he did not discuss Hea- ton’s attendance points with partner relations. (Tr. 164, 189– 190, 201.) Oropeza seemed particularly bent on demonstrating that the Respondent had no choice but to discharge Heaton under the policies in the NYC Addendum even though, as discussed at length below, the text of the NYC Addendum and comparator evidence do not support that assertion. Although Oropeza ini- tially testified that Heaton was a “no call/no show” on August 7, he later admitted not knowing this to be so. Meanwhile, both the notice of separation and partner relations notes refer only to Hea- ton as being “late” on August 7. (Tr. 201) (GC Exh. 18). Oropeza also claimed he told partner relations in August that “the next step would be separation of employment” (Tr. 164.) even though partner relations notes of the conversation state (GC Exh. 18—S031-S032): The only thing SM Juan has on SS Rhythm is a FWW and a memorialized coaching. No other information is showing that this has been habitual or addressed. Doesn’t even know if any documentation needs to be handed to SS Rhythm at this point. . . . Doesn’t feel comfortable moving forward with separation alt- hough SS Rhythm is on a CA[.] What SM Juan has in front of him doesn’t validate just cause[.] In addition to exaggerating the severity of Heaton’s lateness on August 7, Oropeza exaggerated the severity of Heaton’s Feb- ruary 4 “memorialized coaching conversation” or verbal docu- mented coaching by referring to it as an “extended” final written warning. As noted in Heaton’s August 19 appeal of the dis- charge, Heaton was not told that the February 4 coaching was a final warning even though, according to the NYC Addendum, “[t]he intent of progressive discipline is to give the partner notice and a reasonable opportunity to correct performance issues or behavior, when appropriate.” (R. Exh. 2 p. 11.) Similarly, Khan appeared to mischaracterized the February 4 discipline as “black and white” even though partner relations specifically advised Khan he had a degree discretion as “each situation is different.” (GC Exh. 16) (Tr. 119). Analysis 8(a)(3)—Rhythm Heaton Discharge The General Counsel contends that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Heaton because of their union support and activities. The legality of the discharge must be analyzed under the Board’s standard in Wright Line, 251 STARBUCKS CORP. 15 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert de- nied 455 U.S. 989 (1982). Under this standard, the General Counsel has the initial burden to show “that antiunion animus was a substantial or motivating factor in the employment action.” Baptistas Bakery, Inc., 352 NLRB 547, 549, fn. 6 (2008). The General Counsel’s prima facie burden was described by the Board in Wismettac Asian Foods, Inc., 371 NLRB No. 9 (2021), as follows: [T]he General Counsel has the initial burden of establishing, by a preponderance of the evidence, that [the employee’s] pro- tected activity was a motivating factor in the decision to issue the [adverse employment action]. The elements commonly re- quired to support the General Counsel’s initial burden [are] (1) union or other protected activity by the employee, (2) employer knowledge of that activity, and (3) antiunion animus, or animus against protected activity, on the part of the employer. The ev- idence of animus or hostility must be sufficient to establish a causal relationship between the employee’s protected activity and the employer’s adverse action against the employee. Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 6– 8 (2019). The General Counsel’s prima facie case may be established by direct and/or circumstantial evidence, including evidence that the employer’s stated reasons for discharging the employee were pretextual. Abbey’s Transportation Services, Inc., 284 NLRB 698, 701 (1987). Evidence of pretext may include the timing of a discharge, shifting or implausible explanations for the dis- charge, disparate treatment, deviation from past practice, and a failure to investigate or allow the employee to respond to allega- tions of misconduct. Lucky Cab Co., 360 NLRB 271, 274–275 (2014); Grant Prideco, L.P., 337 NLRB 99 (2001); W. Maui Re- sort Partners, 340 NLRB 846, 848 (2003). If the General Counsel makes this initial showing, the burden shifts to the employer “to demonstrate that the same action would have taken place even in the absence of the protected con- duct.” Wright Line, 251 NLRB at 1089. If the Respondent’s stated reason for discharging an employee is found to be pre- textual and the true motivation is the employee’s protected ac- tivity, a Wright Line “mixed-motive” defense is not available. Parkview Lounge, LLC, 366 NLRB No. 71 (2018); K-Air Corp., 360 NLRB 143, 144 (2014). The General Counsel’s Prima Facie Case I find that the General Counsel has established a prima facie case. However, before I work through the elements, I emphasize certain facts. Oropeza admitted he considered Heaton a good employee whom he did not want to discharge. Nevertheless, Heaton was discharged during a pandemic when the Respondent was generally short staffed and already attempting to hire an- other shift supervisor. Further, the recently enacted NYC Just Cause Law created a floor for misconduct below which the Re- spondent could not discharge an employee, but did not create a ceiling above which the Respondent was required to discharge an employee. Rather, under the NYC Addendum, the Respond- ent retained significant discretion to discharge or not discharge an employee depending upon the particular circumstances. Turning to the elements of the General Counsel’s prima facie case, I find as follows below. The Respondent does not deny it was aware Heaton engaged in union activities. In particular, the Respondent admittedly received Heaton’s July 13 email which demanded bargaining and information on behalf of the Union. Thus, the first two ele- ments of the General Counsel’s prima facie case are satisfied. As discussed below, the General Counsel has also established that the Respondent’s discharge of Heaton was based on anti- union animus. I note initially that animus may be found on the basis of an employer’s demonstrated proclivity to violate the Act. St. George Warehouse, 349 NLRB 870, 878 (2007); Wallace Inter- national de Puerto Rico, 324 NLRB 1046 fn. 1 (1997); Florida Steel Corp., 231 NLRB 923, 926, fn. 4 (1977). Here, the Board has previously determined that this Respondent has demon- strated union animus in committing numerous prior violations of the Act, including the unlawful discharge of employees. Star- bucks Corp., 372 NLRB No. 50, slip op. 2 (2023). The timing of the August 17 discharge, close in time to Hea- ton’s July 13 email demanding bargaining and information on behalf of the Union, also shows animus. I did not find reliable Khan’s testimony that he and District Manager Bell knew Hea- ton spoke to other employees in support of the Union before Hea- ton received the February 4 discipline. However, even if I did, I would not find the evidence exculpatory. The Respondent did not know until July 13 that Heaton would take the lead in making bargaining demands on behalf of the Union. At most, the Re- spondent knew Heaton talked to employees in support of the Un- ion and was perhaps one of 11 employees who voted for the Un- ion. Thus, the timing of the Respondent’s discharge of Heaton, shortly after receiving an email which demonstrated Heaton’s leadership in the bargaining process, is evidence of animus. It is also telling of the Respondent’s animus that, contrary to past practice, District Manager Bell directed that Heaton be dis- charged without submitting separation documents to partner re- lations for review by an employment attorney. As noted in an August 31 email from Senior Partner Relations Associated Crowley, “[a]ll separation documents have to be reviewed by Partner Relations in conjunction with our employment attorney before delivery.” (GC Exh. 19.) See, e.g., Bates Paving & Seal- ing, Inc., 364 NLRB 509, 512 (2016) (deviation from an em- ployer’s disciplinary practice is indicative of animus). The Respondent asserts that its lack of antiunion animus was demonstrated by the alleged leniency it exercised by not dis- charging Heaton on February 4. I do not find this argument per- suasive as Heaton was not eligible for discharge at that time. The NYC Addendum provides as follows (emphasis added): [I]f a partner has previous corrective actions for violations other than attendance, the partner will receive the next level of cor- rective action for any subsequent attendance violations. For ex- ample, if a partner was issued a Written Warning for violating Starbucks dress code policy, and subsequently incurs four at- tendance occurrences, the partner will receive a Final Written Warning. This policy does not indicate that an employee who has re- ceived a written warning for a nonattendance violation would necessarily receive a final written warning as “the next level of corrective action” for the next attendance infraction. If that were so, the employee would receive a final written warning after in- curring three additional points (when employees are first subject to corrective action for attendance); not four. Rather, the text of this policy suggests that attendance discipline proceeds along a separate track independent of nonattendance discipline, but in an 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD accelerated manner.14 That is, an employee with a written warn- ing for a dress code or cash handling violation could receive an- other written warning for three attendance points (the next level of corrective action up from a documented coaching), a final written warning for four points, and a separation for five points. Applying this policy here, as of February 4, Heaton had a prior final written warning for a nonattendance cash handling viola- tion and only three points for lateness (August 14, October 24, 2021, and January 20). Accordingly, under the NYC Addendum and NYC Just Clause Law (which requires that discharge be based on a policy of progressive discipline), Heaton was not eli- gible for separation on February 4. Contrary to the Respondent’s claim that it was lenient in deal- ing with Heaton, I find it reflective of antiunion animus that the Respondent failed to comply with its own disciplinary policies in choosing to discharge them. In particular, the pretext of the Respondent’s explanation for discharging Heaton is demon- strated by the artificial manner in which it has attempted to jus- tify the August 7 incident as a five point no call/no show rather than a one point lateness. Under the NYC Addendum, an em- ployee incurs five attendance occurrence points for a no call/no show “when a partner calls in to report an absence more than two hours after the start of a scheduled shift or fails to call in to report an absence.” On August 7, Heaton was not absent and did not call in to “report an absence.”15 Thus, Heaton both “called” and “showed.” Indeed, it was clear from Oropeza’s testimony that he did not understand Heaton to be a no call/no show on August 7. When asked why Heaton was considered a no call/no show, Oropeza stated, “I don’t have an answer” and indicated that it was not something which was discussed at the time. (Tr. 199– 201.) Consistent with this testimony, the notice of separation and partner relations notes do not refer to the August 7 incident as a “no call/no show.” (GC Exh. 7, 18.) Rather, those docu- ments merely refer to Heaton as being “late.”16 (GC Exh. 7, 18— S031.) The Respondent nevertheless asserted at trial that Heaton was a no call/no show on August 7 because they did not call Oropeza to provide notice of the lateness “with as much advance notice prior to the beginning of the shift as possible.” The NYC Addendum states in relevant part as follows (R. Exh. 2) (empha- sis added): If a partner cannot report to work as scheduled, the partner must call and speak directly with the store manager or assistant store manager with as much advance notice prior to the beginning of the shift as possible. . . . Calling in to report off does not prevent an attendance occur- rence. Partners are required to follow call-in requirements every day they cannot report to work as scheduled. Failure to follow call-in requirements is considered a no call/no show. The evidence indicates that Heaton did call Oropeza as soon as possible after waking up. Further, Heaton did not call in “to report off” and, as noted above, a no call/no show is limited to those instances “when a partner calls in to report an absence more than two hours after the start of a scheduled shift or fails to call in to report an absence.” (R. Exh. 2 pp. 7–8) (Emphasis added). In this context, the NYC Addendum statement that a “[f]ailure to follow call-in requirements is considered a no call/no show” appears limited to an employee’s failure to call in “an absence” and “report off” (which Heaton did not do). And again, Oropeza did not understand the Respondent’s policy to the contrary. Thus, the evidence indicates that Heaton was merely late and not a no call/no show on August 7. Heaton had only four total attendance points as of that date and, at most, was subject to a final written warning (not discharge) under the “next level” pol- icy for the accumulation of attendance points while on a nonat- tendance discipline (discussed above). The Respondent’s con- duct in failing to comply with its own policies and decision to risk legal liability under the NYC Just Cause Law makes little sense unless one factor’s in the benefit to the Respondent of sep- arating an employee who demonstrated by a July 13 email an intent to take the lead on behalf of the Union in upcoming nego- tiations. 14 It is telling of the Respondent’s policy that the August 9 partner relations notes indicate that “SM Juan would do a [documented coach- ing]” where “[t]he only thing SM Juan has on SS Rhythm is a [final writ- ten warning] and a memorialized coaching.” (GC Exh. 18—S031.) This suggests the Respondent did not understand the “next level” of corrective action up from a nonattendance final written warning was separation for any attendance violation. 15 The NYC Addendum attendance policy defines an “absence” as “missing at least half of a scheduled shift.” The record does not show that, on August 7, Heaton missed half a scheduled shift, and the Respond- ent did not assert as much in its brief. 16 Likewise, I find it telling of pretext and animus that, as noted above in the credibility section, in attempting to justify Heaton’s discharge, Oropeza mischaracterize the February 4 “memorialized coaching con- versation” or verbal documented coaching (the lowest level of discipline) as an “extended” final written warning (a level of discipline not refer- enced in the NYC Addendum). STARBUCKS CORP. 17 The Respondent’s failure to comply with its own attendance policy is all the more compelling as evidence of pretext and animus in the context of evidence of disparate treatment. As demonstrated in the chart below, comparator discipline demonstrated that the Respondent was far more flexible and lenient in dealing with employees other than Heaton by not issuing to those employees the maximum level of discipline allowed under the NYC Addendum attendance policy:17 Date Description Total Points Max CA Actual CA AB 7/15/22 Late during training and taking unauthorized breaks 1 DC AB 8/13/22 Late 4x (7/25/22-8/3/22) 5 SEP WW AB 8/17/22 Late 3x (8/15/22-8/17/22) 8 SEP FWW AB 9/26/22 Late 4x (9/3/22-9/18/22) 12 SEP SEP AS 4/22/23 Late 5x (2/13/23-4/8/23) while on WW 9 SEP FWW CM 3/15/23 No hair net and texting in an absence 5 FWW DC DP 2/8/23 Late 6x (6/25/23-8/3/23) and no call/no show 11 SEP VDC GJ 3/28/23 Late 4x (12/23/22-3/4/23) 4 WW DC KB 5/23/22 Late 5x (3/25/22-5/21/22) 5 FWW WW KB 8/12/22 No call/no show (8/12/22) 10 SEP FWW KP 10/18/22 Late 3x (6/18/22-10/3/22) and dress code (10/18/22) 3 DC DC KP 2/9/23 Late 3x (11/18/22-2/9/23) 6 SEP WW MA 6/2/22 Late 3x (4/29/22-5/13/22) while on FWW 10 SEP SEP MO 8/9/22 Late 5x (7/15/22-8/6) and texting in an absence 10 SEP VDC MO 9/20/22 Absent (9/15/22) and late (9/16/22) 13 SEP WW MO 10/12/22 Late 3x (9/30/22-10/9/22) and failure to begin work after clocking in (10/12/22) 16 SEP FWW MO Undated Late 2x (9/30/22-10/9/30) and absent 2x (11/13/22-11/16/22) 21 SEP FWW MV 10/7/22 Texting in an absence. 5 FWW VDC NJ 8/13/22 Late 3x (6/8/22-8/13/22) and texting in an absence 8 SEP VDC SW 2/12/23 Late 3x (12/17/22-2/5/23) 3 DC DC SW 2/25/23 Late 2X (2/25/23-3/4/23) 5 FWW WW This comparator evidence indicates that the Respondent often refrained from issuing employees the maximum level of disci- pline they were eligible to receive even when the attendance vi- olations of those employees were clustered together in time. Kahn and Oropeza both indicated that employees were more likely to receive discipline when they demonstrated such a pat- tern of attendance violations. See also Starbucks Corp., JD-28- 23, slip op. at 18 (May 2, 2023) (judge found that the Respondent was more likely to present the next level of attendance discipline when an employee demonstrated a pattern of attendance prob- lems). Conversely, the Respondent immediately discharged Heaton for what it wrongly characterizes now as a “no call/no show” (referred to as “late” at the time of discharge) upon the alleged accumulation of eight attendance points (actually four) following two lateness nearly 7 months apart. The Respondent’s own notes state that Heaton’s attendance violations were not “ha- bitual.” (GC Exh. 18–S031) Other judges have similarly found that the Respondent has been flexible in not rigidly following progressive discipline as a reason to issue corrective action for all attendance violations. Starbucks Corp., JD-40-23, slip op. 20–22 (June 6, 2023); Star- bucks Corp., JD-28-23, slip op. 18–22 (May 2, 2023); Starbucks Corp., JD-17-23 (Mar. 1, 2023); Starbucks Corp., JD-38-23 (June 23, 2023). And the NYC Just Cause Law would make it 17 The column “Total Points” contains the total points accumulated by the employee as of the date of the discipline. The column “Max CA” contains the highest level of discipline the employee was eligible to receive. The column “Actual CA” contains the actual level of discipline issued. “VDC” is a verbal documented coaching, “DC” is a documented coaching, “WW” is a written warning, and “FWW is a final written warning. Date ranges reflect the period in which latenesses occurred. even less logical in this particular local context for the Respond- ent to err on the side of imposing harsher discipline than its pol- icy calls for (absent the benefit of removing an employee who was taking the lead on behalf of the Union in demanding that the Respondent bargain and produce information). The Respondent’s reliance on the discharge of employees other than Heaton as evidence of “consistent treatment” actually demonstrates to the contrary, in rather dramatic fashion, just how flexible and reluctant the Respondent has been to discharge other employees for attendance violations. On July 15, employee AB received a documented coaching for lateness during initial train- ing and taking unauthorized breaks. By August 3, AB received only a written warning for being late another four times (five to- tal attendance points) over the next 2 weeks (even though AB was already eligible for separation under the “next level” policy of attendance discipline while on a nonattendance corrective ac- tion). On August 17 (the same day Heaton was discharged), AB received only a final written warning for being late 3 days in a row and accumulating eight total points (the same number of points the Respondent wrongly claims Heaton had accumulated). Unlike Heaton, AB was not separated until September 26 after being late four more times and accumulating 12 total points. The Respondent was similarly lenient in its treatment of em- ployee MO. On August 9, MO received only a verbal 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD documented coaching for five lateness during a 3 week period and, just 2 days after the last lateness, texting (not calling) in an absence (which Oropeza described as a no call/no show). Thus, as of August 9, MO had accumulated 10 total points (enough to trigger discharge), but was issued the lowest level of corrective action. On September 20, MO received a written warning for accumulating another three points (13 total points) for an ab- sence and a lateness. On October 12, MO received a final written warning for another three lateness (16 total points) and failing to begin work after clocking in. In stark contrast the Respondent’s treatment of Heaton, MO was not discharged until accumulating another five points (21 total points) for an additional lateness and two absences. The record contains only a notice of separation for employee MA and does not contain prior corrective action. Nevertheless, it is still clear that the Respondent treated MA more leniently than Heaton. Since the record does not contain previous disci- pline for MA, we do not know how many attendance points MA accumulated. However, the June 2 notice of separation does in- dicate that MA incurred three points for three lateness in quick succession (April 29, May 10, 13) while on a final written warn- ing for attendance. Thus, by June 2, MA must have accumulated at least eight attendance points. The Respondent did not dis- charge MA on May 10 when that employee would have been eligible for discharge with at least seven points. Rather, the Re- spondent waited to separate MA until that employee was late again on May 13. Conversely, the Respondent discharged Hea- ton as soon as they allegedly accumulated “eight points” by vir- tue of a “no call/no show” which, as demonstrated above, did not actually occur. The Respondent’s comparative leniency in dealing with other employees as opposed to Heaton—a well-regarded shift super- visor whom Oropeza wanted to retain at a time when the Astor Place store was generally short-handed and already advertising for a new shift supervisor to help replace an assistant manager likely to leave—is striking and strong evidence of animus. Nevertheless, the Respondent contends its lack of antiunion animus was shown by the good relationship Heaton had with prounion store managers Khan and Oropeza. I do not find this argument persuasive. The evidence established that District Manager Bell, not the store managers, was primarily responsible for Heaton’s February 4 memorialized coaching conversation and August 17 discharge. The Respondent’s notes indicate that, on January 31, when asked by a partner relations representative why he was seeking a legal consult, Khan answered that “he can’t speak to that, DM just directed [him] to ask for legal con- sult.” Khan added that it was Bell who told him to “call it in.” (GC Exh. 16.) Regarding the discharge, the Respondent’s notes show that Oropeza told partner relations he did not “even know if any document need[ed] to be handed to SS Rhythm” and what Oropeza had “in front of him doesn’t validate just cause.” (GC Exh. 18.) This is consistent with Oropeza’s reassurance to Hea- ton on August 7 “not to even worry about” the lateness that day. (Tr. 27.) Oropeza did not discuss Heaton’s attendance points with Bell or partner relations and did not understand why Heaton 18 I note also that, although Khan and Oropeza told Heaton they per- sonally supported the union campaign, both admitted they could not do would be a no call/no show on August 7. Oropeza answered spontaneously and credibly to a question from the Respondent’s counsel in testifying that he (Oropeza) did not agree with the dis- charge. Consistent with this testimony, when issuing the August 17 notice of separation, Oropeza told Heaton he did not want to see them go and “fought to keep” them, but “couldn’t really do anything about this.” (Tr. 72–73.) This implies that Bell (not Oropeza) discharged Heaton. Indeed, in an August 31 email to partner relations, Oropeza stated that Heaton “was separated as of 8/17 as per DM Tyrell Bell request . . ..”18 (GC Exh. 19.) The General Counsel argues in her brief that the Board’s de- cisions in Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019) (Tschiggfrie) and Electrolux Home Products, 368 NLRB No. 34 (2019) should be overruled. I am not empowered to do so. However, I have no trouble finding that a violation is con- sistent with both cases. In Tschiggfrie, the Board held that, “[t]o establish a prima facie case, the evidence of animus must support finding that a causal relationship exists between the employee’s protected activity and the employer’s adverse action against the employee.” 368 NLRB No. 120, slip op. 1. Here, the timing of the discharge, close in time to the email Heaton sent to the Re- spondent on behalf of the Union to demand bargaining and in- formation, suggests that the Respondent targeted Heaton for dis- charge on the basis of their union activity. That the Respondent singled Heaton out on the basis of their union activity is also demonstrated by the fact that Heaton was discharged in a manner inconsistent with its own policies of progressive discipline (thereby risking legal liability under the Just Cause Law) and its more lenient treatment of other employees. Accordingly, I find that the General Counsel has established the required “nexus” between Heaton’s protected activities and the discharge. In Electrolux, the Board found that, although “animus may be inferred from circumstantial evidence based on the record as a whole,” the General Counsel failed to establish a prima facie case where there was “no basis to infer that the Respondent dis- charged [the alleged discriminatee] because of her union activi- ties, other than the finding of pretext derived from evidence of disparate treatment.” 368 NLRB No. 34, slip op. 3–4. Although the Board in Electrolux recognized that precedent was mixed on the issue of whether evidence of pretext alone can satisfy the General Counsel’s burden of proof, the Board found that the “record as a whole undermine[d] any inference that [the discrim- inatee’s] union activity was a motivating factor in the [em- ployer’s] decision to discharge her.” Id., at 3 fn. 10. In particu- lar, the Board observed that the “record contain[ed] countervail- ing evidence that the [employer] bore no animus against collec- tive bargaining or toward the employee members of the [u]nion’s bargaining team,” as reflected by the fact that the union and em- ployer reached an interim agreement on employee discipline and were bargaining without incident. Id., at 4. Here, the record as a whole goes farther in establishing animus and nexus than the facts in Electrolux. As noted above, animus and nexus are demonstrated by the timing of Heaton’s discharge as well as disparate treatment. Further, the NYC Addendum was implemented for the specific purpose of ensuring that discharges so publicly. This implies that higher management was directing the store managers how to deal with employees engaged in union organizing. STARBUCKS CORP. 19 did not violate the NYC Just Cause Law, rending it particularly suspicious that the Respondent would risk a violation of the local law by discharging an excellent employee at a time when the short-handed Astor Place store was already advertising to hire another shift supervisor. And of course, as demonstrated by the factual findings in numerous decisions by the Board and judges, the relationship between the Respondent and the Union could not be more different than the relationship between the employer and union in Electrolux. Based upon the foregoing, I find that the General Counsel es- tablished a prima facie case that the Respondent discharged Hea- ton because of their union support and activities. The Respondent’s Wright Line Defense The Respondent did not establish as an affirmative defense that it would have discharged Heaton regardless of their union activities. Such a defense is not available to an employer when the evidence indicates that its stated reason for discharging an employee is mere pretext for a discriminatory motive. Rather, the Respondent must establish that it actually had an honest non- discriminatory motive which contributed to the termination. Parkview Lounge, LLC, 366 NLRB No. 71 (2018); K-Air Corp., 360 NLRB 143, 144 (2014). Here, as discussed at length above, the record contains significant evidence that the Respondent’s stated reason was not the actual reason for Heaton’s discharge but instead a mere pretext to justify an unlawful discharge on the basis of union activity. Thus, the Respondent cannot establish a Wright Line defense. However, even if it were appropriate to evaluate the merits of a Wright Line defense, I would reject it. As noted above, the Respondent discharged Heaton for infractions that did not war- rant separation under its own policies. Heaton was not a no call/no show on August 7 and, as of August 17, had accumulated only four attendance points while on a November 1, 2021 non- attendance discipline for cash handling. Under the NYC Adden- dum, on August 17, Heaton was eligible for, at most, a final writ- ten warning (not discharge) for attendance. Indeed, on August 17, the Respondent issued such a final writ- ten warning to AB even though that employee had accumulated eight attendance points (the same number the Respondent wrongly claims Heaton accumulated). Likewise, on August 9, the Respondent issued only a verbal documented coaching to MO even though that employee had accumulated 10 attendance points. MO was subsequently retained and received discipline less than discharge despite accumulating another 6 attendance points (16 total) over the next two months. MO was only dis- charged after accumulating 21 attendance points. Thus, the Re- spondent has not established that it was “required” to discharge Heaton and would have done so pursuant to its attendance policy regardless of their union activity. Based upon the foregoing, I reject the Respondent’s Wright Line defense to the General Counsel’s prima facie case. Accord- ingly, I find that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Heaton because of their union support and activities. CONCLUSIONS OF LAW 1. The Respondent, Starbucks Corporation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent, on August 17, 2022, violated Section 8(a)(3) and (1) of the Act by discharging Rhythm Heaton be- cause of their union support and activities. 3. The alleged violations of Section 8(a)(5) and (1) of the Act are dismissed. 4. The unfair labor practices committed by the Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. The Remedy Having found that the Respondent, Starbucks Corporation, en- gaged in unfair labor practices, I shall order the Respondent to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act. The Respondent, having unlawfully discharged Rhythm Hea- ton because of their union support and activities, must offer them reinstatement to their former job or if that job no longer exists, to a substantially equivalent position without prejudice to their seniority or any other rights or privileges they enjoyed. The Respondent shall make Heaton whole for any loss of earn- ings and other benefits resulting from their discriminatory dis- charge. In accordance with the Board’s decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent will also compensate Heaton for any other direct or foreseeable pecuniary harms in- curred as a result of their unlawful discharge, including reasona- ble 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), compounded 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), the Respondent shall com- pensate Heaton for the adverse tax consequences, if any, of re- ceiving a lump sum backpay award, and, in accordance with Ad- voServ of New Jersey, Inc., 363 NLRB 1324 (2016), the Re- spondent shall, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, file with the Re- gional Director for Region 2 a report allocating backpay to the appropriate calendar year. The Regional Director will then as- sume responsibility for transmission of the report to the Social Security Administration at the appropriate time and in the appro- priate manner. In addition, pursuant to Cascades Container- board Packaging, 370 NLRB No. 76 (2021), the Respondent will file with the Regional Director a copy of Heaton’s W-2 form reflecting the backpay award. In addition, the Respondent will be required to remove from its files any reference to the unlawful discharge of Heaton. The Respondent shall then notify Heaton in writing that their unlaw- ful discharge will not be used against them in any way. The Respondent will be ordered to post, in English and Span- ish, the notice attached hereto as “Appendix A.” On these findings of fact and conclusions of law, and on the 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD entire record, I issue the following recommended order19 ORDER The Respondent, Starbucks Corporation, its officers, agents, representatives successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employ- ees for supporting the Union, Workers United, or engaging in any other activity protected by Section 7 of the Act. (b) In any like or related manner interfering, 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 Rhythm Heaton reinstatement to their former position or, if their position no longer exists, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed. (b) Make Heaton whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful discharge, in the manner set forth in the remedy section of this decision. (c) Compensate Heaton for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 2, 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. (d) Within 14 days from the date of this order, remove from its files any reference to the unlawful discharge of Heaton, and within 3 days thereafter, notify Heaton in writing that this has been done and that the discriminatory discharge will not be used against them in any way. (e) Within 21 days of the date the amount of backpay is fixed by agreement, or Board order, or such additional time as the Re- gional Director may allow for good cause shown, file with the Regional Director for Region 2 a copy of Heaton’s correspond- ing W-2 form reflecting the backpay award. (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 backpay due 19 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 20 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to under the terms of this Order (g) Within 14 days after service by the Region, post in English and Spanish at its Astor Place, New York, New York facility, copies of the attached notice marked “Appendix A.”20 Copies of the notice, on forms provided by the Regional Director for Re- gion 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respondent cus- tomarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, copies of the notice to all current em- ployees and former employees employed by the Respondent at any time since August 17, 2022. (h) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., July 24, 2023. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT discharge or otherwise discriminate against you the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” STARBUCKS CORP. 21 for your union support and activities. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the National Labor Relations Act. WE WILL offer Rhythm Heaton full reinstatement to their for- mer job or, if that job no longer exists, to a substantially equiva- lent position, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Rhythm Heaton whole for any loss of earnings and other benefits resulting from their discharge, less any net in- terim earnings, plus interest and WE WILL also make Rhythm Heaton whole for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful discharge, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Rhythm Heaton for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award and WE WILL file with the Regional Director for Region 2, within 21 days of the date the amount of backpay is fixed, either by agree- ment or Board order, a report allocating the backpay award to the appropriate calendar year(s). WE WILL file with the Regional Director for Region 2 a copy of Rhythm Heaton’s corresponding W-2 form reflecting the backpay award. WE WILL remove from our files any reference to the unlawful discharge of Rhythm Heaton, and WE WILL, within 3 days there- after, notify Rhythm Heaton in writing that this has been done and that their discriminatory discharge will not be used against them in any way. STARBUCKSCORPORATION The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-303077 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. APPENDIX B The transcript of the hearing shall be corrected to accurately reflect testimony as follows:21 Vol. Page Line Change From Change To 1 22 21 Holteza Oropeza 1 32 5 This witness Exclusive 21 Where the word ‘DELETE” appears in the “Change To” column, the word or phrase is deleted from the transcript with no replacement. 1 35 19 1020.918 102.18 1 41 2 Kind Nine 1 46 13 Sent Said 1 48 15 Aborted A board of 1 50 7 What have you attempted to be rehired What have you attempted to do to be rehired 1 51 8 Master Astor 1 56 5 Inserted activity member discus- sion hours Protected con- certed activity, unit member dis- cussion of hours 1 61 10 Targeted Tardy 1 64 16 Vote DELETE 1 70 15 You the support through the un- ion Them to support the union 1 73 7 Trell fought to keep you up Tyrell fought to keep you out. 1 73 23 Fall Full 1 74 25 Media Medium 1 80 16 Rescued Toc- cata Res judicata 1 85 3 Fucking DELETE 2 144 22 Occurs Incurs 2 148 23 To Not 2 151 2 Questionnaires Question 2 153 23 Ross Raz 2 164 11 Because was Because Heaton was 2 177 7 A traction Track record 2 178 11 Speculation Separation 2 184 25 Were We 2 186 7 After Under 2 188 12 FEL Bell 2 203 20 That applicable That are applica- ble The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-303077 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.