Starbucks Corporation

373 NLRB No. 85 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Starbucks Corporation and Chicago & Midwest Re- gional Joint Board, Workers United/SEIU. Case 13–CA–300739 August 29, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY AND WILCOX On September 7, 2023, Administrative Law Judge Keltner W. Locke issued the attached decision. The General Counsel and the Charging Party each filed ex- ceptions and supporting briefs, the Respondent filed an- swering briefs to the General Counsel’s and the Charging Party’s exceptions, and the General Counsel and the Charging Party each filed reply briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 The Board has considered the decision and record in light of the exceptions and briefs and has decided to af- firm the judge's rulings,2 findings,3 and conclusions and to adopt the judge’s recommended Order. We affirm the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(3) and (1) by refus- ing to transfer employee Abigail Estrada from its “Cam- pus Town” store in Peoria, Illinois, to its “Grand & Green Bay” store in Waukegan, Illinois. In doing so, we find that even assuming the General Counsel met her initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to prove that Estrada’s protected activity was a “motivating factor” in the Respondent’s decision, the credited evidence establishes that the Re- spondent met its defense burden to prove that it would have denied Estrada’s transfer request on May 4, 2022, for a lawful reason—her lack of availability—even in the absence of her union activity. One week earlier, Estrada 1 The Respondent asserts that Members Prouty and Wilcox should recuse themselves, claiming that their “past, present, and perceived relationships with the Service Employees International Union” create a conflict of interest. Members Prouty and Wilcox have determined, in consultation with the NLRB Designated Agency Ethics Official, that there is no basis to recuse themselves from the adjudication of this case. 2 There are no exceptions to the judge’s ruling granting the General Counsel’s motion to amend the complaint. 3 The General Counsel and the Charging Party have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam- ined the record and find no basis for reversing the findings. had submitted an availability form along with her trans- fer application, which stated that she was available to work only 19 hours per week, during specific hours on Tuesdays, Wednesdays, and Fridays. The judge credited Waukegan Store Manager Meghan Berns’s testimony that she needed more flexibility, saying she looked “for upwards of 40-plus hours available.” Berns’s testimony is corroborated by the fact that the first five employees she hired after becoming store manager had between 40 and 80 hours of availability per week, and at least four of them were available to work at least 1 day on the week- end. We also affirm the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(3) and (1) by refusing to transfer and/or delaying the transfer of Estra- da from its store in North Chicago, Illinois, back to the “Campus Town” store. In doing so, we agree with the judge that the General Counsel failed to meet her initial burden under Wright Line. In affirming the dismissals of both allegations, we do not rely on the judge’s finding that the Respondent’s refusals to transfer Estrada had no impact on her condi- tions of employment and did not constitute an adverse employment action, as that finding is contrary to estab- lished Board law. See Joseph Magnin Co., Inc., 257 NLRB 656 (1981) (finding employer’s discriminatory refusal to transfer employees violated Section 8(a)(3)).4 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Dated, Washington, D.C. August 29, 2024 ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, Member 4 We therefore find it unnecessary to reach the General Counsel’s request to overrule Bellagio, LLC, 362 NLRB 1426 (2015), enf. denied 854 F.3d 703, 709–710 (D.C. Cir. 2017), and “clarify” that application of the Wright Line framework does not require a showing that the em- ployer’s action was “adverse” to the particular discriminatee involved. Member Kaplan agrees with his colleagues that the complaint alle- gations are properly dismissed under a Wright Line analysis. There- fore, he finds it unnecessary to pass on the judge’s finding that the Respondent's denials of Estrada’s transfer requests did not constitute adverse employment actions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Vivian Robles, Esq., for the General Counsel. Josiah A. Groff, Esq., for the Charging Party. Ethan Balsam, Esq. and Elizabeth Hanford, Esq., for the Re- spondent. DECISION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge: The com- plaint alleges that the Respondent twice refused an employee’s request to transfer from one of its stores to another, but does not allege that it discriminated against her in any other way. The Respondent ultimately did substantially accommodate the em- ployee’s requests, but even if it had not, such refusals would not have adversely affected the employee’s terms and condi- tions of employment and therefore would not have constituted adverse employment actions cognizable under the Act. PROCEDURAL HISTORY This case began on August 4, 2022, when the Charging Par- ty, Chicago & Midwest Regional Joint Board, Workers Unit- ed/SEIU (referred to below as the Union) filed an unfair labor practice charge against the Respondent, Starbucks Corporation. The Board’s staff, at its regional office in Chicago, docketed the charge as Case 13–CA–300739. The Charging Party filed an amended charge on January 17, 2023. On February 22, 2023, after an investigation, the Board’s Regional Director for Region 13 issued a complaint and notice of hearing. The Respondent filed a timely answer.On June 7, 2023, a hearing opened before me by videoconference. The parties presented evidence on that day and on the 2 following days. The hearing closed on June 9, 2023. Thereafter, counsel submitted briefs, which I have considered. ADMITTED ALLEGATIONS Based on the admissions in the Respondent’s answer, I find that the General Counsel has proven the allegations raised in complaint paragraphs 1(a), 1(b), 2(a), 2(b), 2(c), 3, and 4. More specifically, I find the charge and amended charge filed and served as alleged. Additionally, I find that, at least since January 1, 2022, Re- spondent has been a Washington corporation with headquarters in Seattle, Washington, and facilities located throughout the United States, including facilities located at 3300 Grand Ave., Waukegan, Illinois (which will be referred to as the Waukegan facility or as the Grand & Green Bay facility) and 1200 W. Main St., Peoria, Illinois (which will be referred to as the Peo- ria facility or as the Campus Town facility). Further, I find that the Respondent has been, and is engaged in retail sale of food and beverages and that it meets both the statutory and discretionary standards for assertion of the Board’s jurisdiction. Therefore, I conclude that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent has admitted, and I find, that the following individuals are its supervisors within the meaning of Section 2(11) of the Act and its agents within the meaning of Section 2(13) of the Act: Meghan Berns, manager of the Respondent’s Grand & Green Bay facility in Waukegan, Illinois; Jeanette Ward, manager of the Respondent’s Campus Town facility in Peoria, Illinois1; District 346 Manager Dan Estes, and District 138 Manager Lyndsay Griepentrog. Moreover, based on the Respondent’s admissions, I find the Charging Party, Chicago & Midwest Regional Joint Board, Workers United/SEIU, is a labor organization within the mean- ing of Section 2(5) of the Act. GENERAL COUNSEL’S MOTION TO AMEND During the hearing, after both the General Counsel and the Respondent had rested, the General Counsel moved to amend paragraph 5(b) of the complaint. The Respondent strongly opposed this motion. Paragraph 5(b) of the original complaint alleged that the Re- spondent, in mid-August 2022, had refused to transfer an em- ployee, Abigail Estrada, from its Grand & Green Bay store, which is in Waukegan, to its Campus Town store in Peoria. However, there was a problem with this allegation which ap- parently had escaped the General Counsel’s notice until the last day of the hearing. Estrada hadn’t been working at the Waukegan store when she sought the transfer to the Peoria store. At one time, in 2021, she did work at the Waukegan store. But then she had transferred to the Peoria store, and from the Peoria store she transferred to a store in North Chicago, Illinois. She was working at this North Chicago store, not at the Waukegan store as alleged in the complaint, when she submit- ted a transfer request to go back to the Peoria store. It isn’t clear when the General Counsel first noticed the problem, but after both sides rested, she moved to amend com- plaint paragraph 5(b) in the following way (additions in bold): About mid-August 2022, Respondent refused to transfer its employee, Abigail Estrada, from its Grand & Green Bay North Chicago, Illinois store to its Campus Town store in Peoria, Illinois. Over the Respondent’s vigorous objection, I granted the mo- tion to amend, but also stated that I planned to revisit the issue after reviewing the case cited by the Respondent and other legal authority. Both the General Counsel and the Respondent ad- dressed this issue in their posthearing briefs. An underlying issue involves the correct application of Sec- tion 10(b) of the Act,2 and its 6-month “statute of limitations.” 1 The Respondent discharged Ward on September 2, 2022, and I do not find that she was either Respondent’s supervisor or agent past that date. The General Counsel’s brief argues that “Respondent did not present Ward at the hearing and an adverse inference should be drawn from its failure to call her as a witness.” However, because Ward no longer worked for the Respondent when the hearing took place, and was not then under the Respondent’s control, I conclude that drawing such an adverse inference would not be appropriate. 2 Section 10(b) of the Act provides, in part, that “no complaint shall issue based upon any unfair labor practice occurring more than six STARBUCKS CORP. 3 The Respondent argues that the unfair labor practice charge which began this proceeding, even as amended, did not allege any refusal to transfer Estrada from the North Chicago store. When the General Counsel moved to amend the complaint, at the hearing on June 9, 2023, more than 6 months had elapsed from the date of the alleged unfair labor practice. In other words, the Respondent contends that the General Counsel is not merely seeking to correct a minor error but in- stead would add an entirely new allegation. The Respondent’s brief states: There was no mention of the North Chicago store anywhere - in the charge, amended charge, Complaint, correspondence, pre-hearing conferences, etc. - until the hearing. Both the Charging Party and the General Counsel had ample time to identify this allegation and had unfettered access to the dis- criminatee for months prior to the start of the hearing. Yet both failed to exercise reasonable diligence which substantial- ly prejudiced Starbucks’ right to due process and that alone should suffice to bar the allegation. The Respondent cites Redd-I, Inc., 290 NLRB 1115, 1116 (1988), and subsequent cases applying that precedent. These cases hold that Section 10(b) bars alleging in a complaint an unfair labor practice which occurred more than 6 months before the filing of a charge but recognize an exception for an allega- tion which is closely related to an allegation that is timely. See, e.g., Starbucks Corp. d/b/a Starbucks Coffee Co., 372 NLRB No. 50 (2023); Pergament United Sales, 296 NLRB 333, 334 (1989) (“the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated”). Contrary to the General Counsel, the Respondent argues that the allegation which the government seeks to add—that Re- spondent refused to allow Estrada to transfer from the North Chicago store to the Peoria store—is not closely related to the allegation actually in the complaint, that the Respondent re- fused to let Estrada transfer from the Waukegan store to the Peoria store. In Redd-I, the Board described the factors it considers in de- ciding whether a new allegation is closely related to an existing, timely allegation. (1) whether the otherwise untimely allegations of the amend- ed charge involve the same legal theory as the allegations in the timely charge; (2) whether the otherwise untimely allegations of the amend- ed charge arise from the same factual situation or sequence of events as the allegations in the timely charge; and (3) whether a respondent would raise the same or similar de- fenses to both the untimely and timely charge allegations. months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six- month period shall be computed from the day of his discharge.” 29 U.S.C. § 160(b). See WGE Federal Credit Union, 346 NLRB 982, 983 (2006); Old Dominion Freight Line, 331 NLRB 111 (2000). The Respondent’s brief argues that these factors “are not sat- isfied. . .because no causal connection exists between the se- quence of events involving this allegation, involving complete- ly separate districts and decision makers, with no union cam- paigns at either store, to other allegations of the timely-filed charge. See Carney Hospital, 350 NLRB 627 (2007).”3 The Respondent further contends that the new allegation “requires an entirely independent factual and legal analysis regarding the totality of circumstances, as established in Blue Flash Express, Inc., 109 NLRB 591 (1954).” However, the Respondent’s brief does not delve very far into how, specifical- ly, the factual and legal analysis would be different. In considering each of the Redd-I factors, I will start with the second, which pertains to the facts. In both the original allega- tion, in complaint paragraph 9(b), and the allegation as modi- fied by the amendment, the facts are the same except for the name of the store at which Estrada was working when she re- quested the transfer. Except for this one detail, the facts remain unchanged. So, what effect does changing this one detail have on the legal the- ory and the Respondent’s defenses? The legal theory remains the same. The General Counsel al- leges that the Respondent refused Estrada’s transfer request because of her union and protected concerted activities. The fact that she was working at the Respondent’s store in North Chicago rather than the Respondent’s store in Waukegan does not change the theory that Respondent denied her the requested transfer to the Peoria store because of her union and protected concerted activities. Whether the amendment affects the Respondent’s legal de- fenses presents a more complicated question. The record estab- lishes that, when an employee at a store in one district requests a transfer to a store in a different district, both store managers and both district managers have a say in deciding whether to approve the transfer. Depending on the particular circumstances, the manager at the store where the employee was working (and wanted to leave) might object to the transfer on the basis that her store did not have enough staff to do the work and that the loss of the employee would make the staffing problem even worse. It could be argued that, if the Respondent had known that the General Counsel was trying to prove that Estrada worked at the North Chicago store, it could have called the store manager to the stand to testify that her transfer would deprive him of a needed employee. However, the fact that the change in store location might, in theory, allow the Respondent an additional defense doesn’t affect the Respondent’s other defenses. Moreover, the Re- spondent well knew the location of the store at which Estrada actually was working when she requested her transfer. She 3 The Respondent also contends that, even if a causal connection does exist, “the General Counsel failed to exercise reasonable diligence in timely identifying this allegation.” However, the Redd–I factors do not include whether the General Counsel has exercised reasonable diligence. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 was, after all, the Respondent’s employee. The testimony and other evidence also made clear that she was working at the North Chicago store. So, the Respondent had the opportunity to raise this defense.4 Another possible defense would be that the manager of the Peoria store, to which Estrada sought to transfer, objected to the transfer for legitimate business reasons unrelated to union or other protected activities. However, the complaint amendment did not affect that possible defense because the “destination” store remained the same. For these reasons, I conclude that the amended allegation is closely related to the original allegation and Section 10(b) does not bar the amendment. Are there any other considerations which weigh against the amendment? In Pincus Elevator & Electric Co., 308 NLRB 684 (1992), the Board stated: In deciding whether to permit the General Counsel’s motion to amend the complaint at trial, we consider a variety of factors, including the identity of the party who first introduced evidence relating to the unfair labor practice issue, whether the issue was fully litigated, and whether the Respondent demonstrated that the amendment is prejudicial. Citizens National Bank of Willmar, 245 NLRB 389, 390–391, 391 (1979), enfd. mem. 644 F.2d 39 (D.C. Cir. 1981). The first factor, the identity of the party who first introduced evidence related to the unfair labor practice issue, does not have the same relevance here as it did in Pincus Elevator. In that case, during the cross-examination of one of the respondent’s employees, the respondent’s counsel sought to impeach the witness by showing him a statement which he provided earlier, not to a Board investigator but to the respondent’s attorney himself. The General Counsel then questioned the witness concerning what the respondent’s attorney had said to the wit- ness during that earlier interview. The resulting testimony revealed that the Respondent’s attorney had interviewed the employee without complying with the requirements established by the Board in Johnnie’s Poultry Co., 146 NLRB 770, 775 (1964).5 In Pincus Elevator, the Board considered it significant that the Respondent’s own counsel had raised the subject of the interview by questioning the witness about it. This fact weighed in favor of allowing the amendment to the complaint. However, the question of who first introduced evidence related 4 The record does not suggest either that there were too few em- ployees at the North Chicago store or that the manager of that store objected to her transfer to the Peoria store. In fact, the manager of that store approved her transfer. 5 When an employer’s representative asks an employee questions about the protected activities of that employee or other employees, the questions themselves can constitute an unfair labor practice. Yet a respondent’s attorney needs to be able to ask such questions when preparing to defend his client at a hearing. The Board therefore created a narrow “safe harbor” in which such questioning lawfully could occur under specified conditions. Those conditions include, among others, that the employer’s representative first must inform the employee the purpose of the questioning, that answering the questions is voluntary, and that no reprisals will take place. Johnnie’s Poultry Co., 146 NLRB 770, 775 (1964). to the subject of the proposed amendment isn’t relevant here, where the amendment would simply correct an error in the complaint. The second and third factors, however, are quite relevant. They concern whether the allegation was fully litigated and whether the Respondent would be prejudiced by the amend- ment. The original complaint alleged that the Respondent had re- fused Estrada’s request to transfer to the Peoria store remained unaffected by the amendment, which only corrected an error concerning where Estrada was working when she requested the transfer. As discussed above, under certain circumstances the identity of that store might be relevant to the Respondent’s defense. If that store were understaffed, the store manager might protest that he could not afford to lose an employee. However, documents in evidence show that the store manag- er approved the transfer and raised no objection that his store was understaffed. The amendment did not change the Re- spondent’s other defenses and the issue—an alleged refusal to allow Estrada to transfer to the Peoria store—was indeed fully litigated. The Respondent suffered no prejudice. As noted above, the Respondent, as Estrada’s employer, clearly knew where it had assigned her to work and where she was working when she requested to transfer. Moreover, during the hearing, when I granted the General Counsel’s motion to amend, I specifically stated that I would allow the Respondent more time to prepare a defense if the Respondent needed it. The Respondent did not request more time. For these reasons, I believe that it was correct to allow the General Counsel to amend the complaint during the hearing. The complaint remains so amended. DISPUTED FACTS The Respondent operates coffee shops across the country. The complaint alleges that it twice discriminated against one of its employees, Abigail Estrada, by refusing her requests to transfer from one of its coffee shops to another.6 Estrada began working for the Respondent on January 4, 2021, at its store near the intersection of Grand Avenue and Green Bay Road in Waukegan, Illinois. She testified that the manager of that store was Josh Bowles. After Bradley University, in Peoria, Illinois, accepted Estra- da as a student, she requested and received a transfer to a Star- bucks store near the university. Estrada began work at this store, designated Store #8919 and called the “Campus Town” store, in August 2021. Difference Between “Transfer” and “Borrowed Partner” At some point—exactly when will be discussed below— Estrada had a conversation with Store Manager Bowles about her desire to work at the Peoria Store while attending classes at Bradley University but work at his store in Waukegan during breaks. From her testimony at hearing, it appears that Estrada believes that Bowles promised that she could transfer back and forth between the two stores. Bowles did not testify and Estra- 6 The Respondent refers to its coffee shops as “stores” and that term will be used in this decision. STARBUCKS CORP. 5 da’s testimony about what he said is rather vague. However, when she began seeking a transfer back to the Waukegan store, Estrada mentioned Bowles’ supposed promise to two managers. At some point during March 2022, Estrada contacted District Manager Dan Estes concerning her desire to transfer from the Peoria store back to the Waukegan store. Estrada testified: I told Dan about [Store Manager] Josh [Bowles]. Josh told me that I was a borrowed partner and that I could come to and from Peoria and Grand & Green Bay, and he told me that there were other stores and he would look into them, but I told him that I didn’t have any mode of transportation and couldn’t work at another store. Sometime around April 1, 2022, Estrada made a similar statement to Emily Gomez, who was serving as interim manag- er of the Waukegan store after Bowles left that position. Estra- da testified: I told Emily that Josh had told me that I was a borrowed part- ner, meaning that I would be able to go to and from the Waukegan store. . .Waukegan, when I go home from school and then Campustown when I go back to school. And he said I’d be able to do that. A “borrowed partner” is an employee who, although as- signed to regular duty at one store, is working temporarily at another store. The status is analogous to that of a government employee who is “on a detail” and working somewhere other than his permanent duty station. Estrada’s testimony does not reveal when Bowles supposedly was told that she could go “to and from the Waukegan store” because she was a “borrowed partner.” However, it would make no sense for Bowles to have made such a statement to Estrada when she first started working at the Waukegan store because at that time her permanent duty assignment was the Waukegan store. As noted above, in August 2021, Estrada requested and re- ceived a transfer to the Campus Town store in Peoria, so she could attend classes at Bradley University. This transfer changed her permanent duty assignment from the Waukegan store to the Peoria store. When classes at the university stopped for the winter break, Estrada went back to the Waukegan store and worked there for the duration of the break, but her permanent duty assignment remained in Peoria. Thus, while working at the Waukegan store during the winter break, Estrada was indeed a “borrowed partner” there, having been “lent” by the Peoria store. It makes sense that Bowles, as the Waukegan store manager, might say something to the effect that Estrada was a “borrowed partner” because that was, in fact, her status until classes re- sumed, and she returned to Peoria. It is also plausible that Bowles might have told Estrada that she could return to work as a “borrowed partner” during future breaks. Estrada’s testimony. quoted above, attributed to Bowles a statement that she could go “to and from the Waukegan store,” working there when she went home from school and then at the Peoria store when she went back to school” as a borrowed partner. Somehow though, by the time Estrada described this conversation to Estes, she had conflated this practice of “bor- rowing” an employee with the entirely different process of transferring an employee from one store to another. On cross- examination, Estrada admitted that Bowles had not been talking about a transfer: Q. . . .You testified that when you were leaving the Waukegan store to go back to Campus Town at the end of winter break that Josh said that you could come back, correct? A. Correct. Q. But at no point in time did Josh say that you could transfer to the Waukegan store, correct? A. Correct. Because a transfer causes a permanent change in an employ- ee’s duty station, deciding whether to grant a transfer request differs from deciding whether to allow an employee to work at another store for a few weeks. Fluctuations in business might justify “borrowing” an employee temporarily to cope with a surge in the workload even though the store was adequately staffed at other times. The Respondent, which calls its employees “partners,” pro- vides them with a statement of its rules and policies, including its policy regarding transfers. That policy states: Transfers A store partner may want to transfer to a different store in re- sponse to an open position or for personal reasons, such as a change in personal residence. All transfers to a different place of work are subject to district manager approval, and are con- tingent upon business needs, partner availability and partner performance. To be considered for transfer, a barista must have completed Barista Basics. A store manager or assistant store manager should have completed at least one year in position before transfer. Any partner requesting a transfer must be in good standing, which means the partner is adhering to company policy, is meeting the expectations of the job, and has no re- cent written corrective actions. Ultimately, permission for a partner transfer is at the discretion of the store manager and/or district manager. To request a transfer, the partner should talk to the current manager. Whenever possible, a retail hourly partner should talk to the manager at least 60 days before the requested trans- fer date. A store manager or assistant store manager should talk to the manager at least 90 days before the requested trans- fer date. The partner should work with the manager to obtain additional information about transfers and to complete and submit the required paperwork for approvals. At all times, Starbucks retains sole discretion in determining whether a partner will be transferred. [Italics added.] At the end of the winter break, Estrada returned to her per- manent duty at the Peoria store. There, she participated in a union organizing campaign. Estrada’s Union Activities Eleven employees, including Estrada, signed letters dated February 10, 2022, which demanded that the Respondent rec- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 ognize the Union. The next day, one of these employees transmitted the letters by email to the Respondent’s president and chief executive officer, Kevin Johnson. The email, which began “Dear Kevin,” stated: “We, the organizing committee at store #8919, are publicly filing to unionize.” The Union also filed a petition with the Board. It conducted an election, which the Union won. On May 4, 2022, the Board certified the Union as the exclusive bargaining representative of all full-time and regular part-time baristas and shift supervisors at this store.7 Complaint Paragraph 5(a) Complaint paragraph 5(a) alleges that “about mid-April 2022, Respondent refused to transfer its employee, Abigail Estrada, from its Campus Town store to its Grand & Green Bay Store.” Complaint paragraph 5(c) alleges that the Respondent did so “because Abigail Estrada supported the Union and en- gaged in concerted activities, and to discourage employees from engaging in these activities.” Complaint paragraph 7 alleges that the Respondent thereby violated Section 8(a)(1) and (3) of the Act. The Respondent denies all these allegations. On March 23, 2022, Estrada went on disability leave, which lasted through April 27, 2022. While on leave, Estrada began efforts to get a permanent transfer back to the Grand & Green Bay store in Waukegan. Bowles no longer managed that store, so Estrada discussed her desire to transfer with the interim manager, Emily Gomez. On April 1, 2022, Estrada sent Gomez a text message. Gomez replied the same day, indicating there were no job open- ings at her store: [W]e did hire here at Greenbay and Lakehurst so I know both Waukegan stores are fully staffed but we can definitely see what else is open in the market depending on what your cur- rent SM says about the process! From context, it is clear that “SM” stands for store manager. Above the store managers are the district managers. Each over- sees a number of stores in a particular geographical area. Es- trada telephoned Dan Estes, the district manager responsible for stores in the Waukegan area. He confirmed that there were no job openings. On April 11, 2022, a new permanent Store Manager, Me- ghan Berns, took charge. Sometime in mid-April, Estrada phoned her. Both Estrada and Berns testified about this conversation. Their accounts differ somewhat but don’t squarely contradict each other. However, Estrada’s version was shorter and did not recount all of what had been said. 7 More specifically, in Case 25–RC–290625, the Board certified the Union as the exclusive bargaining representative of the employees in the following appropriate unit: Included: All full-time and regular part-time baristas and shift su- pervisors employed by the Employer at its store #8919 located at 1200 West Main Street, Peoria, IL. Excluded: All store managers, assistant store managers, office cleri- cal employees, confidential employees, managerial employees, profes- sional employees, guards and supervisor[s] as defined in the Act, and all other employees. Thus, concerning her conversation with Berns, Estrada testi- fied, in part: “I told her how I wanted to transfer back to Waukegan. And she was actually sort of open about it. She told me that she wanted to bring me in.” That testimony, by itself, creates a misleading impression because it does not mention that Berns, like Estes earlier, said that she had no positions open. Berns testified, in part: “We discussed like—that, if she wanted to transfer, that I didn’t have any positions open, but I would look into it, . .” Based on my observations of the witnesses, I believe that Berns’ testimony is more reliable than Estrada’s.8 To the extent that there is a conflict in the testimony, I credit that of Berns. The misleading impression created by Estrada’s testimony found its way into the General Counsel’s brief, which states: “Unlike Gomez, Berns told Estrada she could resume working at the Waukegan store.” However, based on Berns’ credited testimony, I find that she did not make such a statement. Rather, I find that Berns told Estrada there were no positions open and then, as if to soften that bad news, she added that she “would look into it, if I could make any adjustments.” At most, that statement signified that Berns would examine when her present employees were available to work to see if their sched- ules could be altered to free up some hours for Estrada to work. Of course, for Berns to make such adjustments, she would first have to know when Estrada was available for work. How- ever, Estrada admitted that, during her conversation with Berns, she did not discuss her availability to work. In sum, I find that Berns did not promise Estrada a job at the Waukegan store. However, Berns did explain to Estrada the steps she needed to take to pursue a transfer. Those steps were telling her store manager about her desire for a transfer and submitting two forms: A transfer request form, and a form showing her “availability,” that is, the hours each day when she was available for work. This telephone conversation with Berns took place in mid- April 2022, while Estrada remained on short-term disability leave. On April 27, 2022, the last day Estrada was on disability leave, she submitted a transfer request form and an availability form to her store manager, Jeanette Ward. That same day Ward sent an email to Gomez, who had been managing the Grand & Green Bay store in Waukegan, where Estrada wanted to work. The next day, Gomez replied that Meghan Berns was the new manager of this store and, Gomez wrote, “I’ve put her on this email thread.” The Respondent’s transfer request procedure, as described on the transfer request form’s instruction sheet, requires the store manager to transmit the form to the district manager with- in 5 days. Ward did so. Estrada returned to work on May 2, 2022. The same day, Ward emailed Estrada’s transfer request form and her availability form to District Manager Estes and to Store Manager Berns. Ward also sent a copy to her boss, Dis- trict Manager Lyndsay Griepentrog. 8 It should be noted that I did not discern in Estrada any intent to misrepresent. On cross-examination, she quite candidly admitted facts not in her interest without any attempt to “spin” them in her favor. However, in my view, her memory did have some tendency to simplify events by omitting less favorable parts. STARBUCKS CORP. 7 As discussed above, during Estrada’s mid-April 2022 con- versation with Berns, the store manager had said she would “look into” the possibility of finding hours for Estrada to work by making adjustments in employees’ work schedules. To “look into” that possibility, Berns needed to know what days and hours Estrada would be available to work. However, Berns and Estrada did not discuss her availability during this tele- phone conversation. In May, when Berns did receive Estrada’s availability-for- work form, she realized that Estrada could not work at the times needed. Berns testified: Q. What does the availability show for Abby? A. She has very limited availability. Q. Okay. And what does that mean? What do you mean by that? A. There are very few shifts in which I could even schedule to meet business needs. Q. Okay. So, if you gave let’s say a number regarding her availability, what would it be? A. Like how many hours she’s available, with this availabil- ity, she has about 19, 20 hours max available. Q. Okay. What are you looking for when you are determin- ing staffing a Partner in terms of availability? A. Open and flexible availability. Q. What does “open” mean in terms of hours? A. I usually look for upwards of 40-plus hours available. About 2 days after she received Estrada’s availability form, Berns telephoned Estrada. Berns testified that she told Estrada “that, unfortunately, because of her availability, and that I just—I honestly didn’t have space for additional Partners, that I wouldn’t be able to accept her transfer.”9 This telephone conversation took place sometime around May 4, 2022. Although complaint paragraph 5(a) alleges that the Respondent refused to transfer Estrada to its Grand & Green Bay store in about mid-April 2022, I find that the refusal occurred on about May 4, 2022. The Respondent’s Motivation After learning in early May that she could not transfer to the Grand & Green Bay store, Estrada sought to work there again as a “borrowed partner,” being paid at the rate she was earning at the store in Peoria. Because of this request, Store Manager Berns telephoned the manager of the Peoria store, Jeanette Ward. After her conversation with Berns, the Peoria store manager sent an email to her District Manager, Lyndsay Griepentrog. That May 20, 2022 email stated, in part: Meghan called me today. . .about Abby being borrowed from CT8919 and picked up a shift at her store. Meghan conveyed she is new SM and there used to be a lot of drama previously 9 Estrada testified that Berns “basically told me that I no longer fit the criteria to work at the Grand and Green Bay location because I would be leaving for college in August.” To the extent that Estrada’s testimony conflicts with that of Berns, I credit the latter. at the store and she’s working toward keeping that negative element out of the store / team environment. Meghan said that Abby has been visiting her store a lot and hearing some things from others about Abby’s previous ten- ure. She didn’t elaborate on this and I didn’t inquire. Meghan said that Abby has made a negative impression visit- ing surrounding stores in the area trying to (I guess) pressure other SM’s to transfer her in. I asked Meghan about their DM, Dan, mentioning my con- versation with you prior to your leaving on vacation (to reach out to Dan) about asking if there is any room for Abby at any store. Meghan said that based on everything that’s been going on with Abby there is no desire to bring her in to their area. I just wanted to let you know this is the information I re- ceived. Conceivably, the remarks Ward attributed to Berns, about “drama” and “everything that’s been going on with Abby,” might be veiled references to union activities.10 However, Ward did not testify and therefore could not be examined about whether Berns made any references to union activities during their conversation. Because Ward’s email does not mention the Union or union activity, and because the words attributed to Berns could mean many other things, it would be unwarranted speculation to con- clude that they were veiled references to Estrada’s protected activities. To the contrary, the past “drama” appears to have arisen from interpersonal conflicts. Berns testified: Q. BY MS. HANFORD- Can you, can you describe what you heard? A. THE WITNESS- So, I had a Partner -- his name is Ivan; he’s one of my Shift Supervisors -- approached me about his concerns about Abby [Estrada] returning to this location, be- cause they had previous history that she was, in ways, harass- ing him and stalking him on social media. It made him un- comfortable, and he did not -- was concerned, if she came back, it would cause drama at the store. Q. Were there any other complaints? A. I had a couple of other Partners that did come, come up to me and tell -- told -- tell me that she did cause drama at the lo- cation.11 Estrada testified that she had had an “intimate relationship” with Ivan and that the relationship had ended. She denied ever 10 In addition to Estrada’s union activity before Berns denied her transfer on about May 4, 2022, Estrada also participated in a work stoppage at the Peoria store on May 14, 2022. That brief strike will be discussed further, below. Obviously, the May 4, 2022 decision not to approve the transfer could not have been affected by a strike 10 days later. 11 Because Berns’ testimony about these employee complaints con- stitutes hearsay, I do not consider it for the truth of the matter asserted. Nothing in the record suggests that these employees were referring to union or other protected activities when they reportedly told Berns that Estrada had caused “drama.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 stalking him or harassing him.12 Ward’s email quoted Berns as saying “there used to be a lot of drama previously at the store” (Italics added), which pre- sumably refers to the store where Berns was manager. Howev- er, no evidence indicates that Estrada had engaged in any union activities at this store in Waukegan. Therefore, assuming that Berns did tell Ward that there had been a lot of drama at her store, it is quite likely Berns was referring to the conflict and tension associated with Estrada’s previous romantic relation- ship with another worker. No evidence suggests that Berns harbored antiunion animus and I find that she did not.13 Moreover, preventing her store from becoming a venue for soap-opera-style spats is a legiti- mate business interest. Accordingly, I conclude Estrada’s un- ion activity at another store did not enter into Berns’ decision to deny the transfer.14 When Did Estrada Make The Request The evidence establishes that Estrada did not make a request to transfer to that store until April 27, 2022. Estrada did call Berns in mid-April and, during that telephone conversation, expressed interest in transferring to the store. However, ex- pressing interest in transferring falls short of actually requesting to transfer. Making such a request involves submitting paper- work. During the call, Berns described the process to Estrada. The fact that Berns told Estrada how to go about making a transfer request is consistent with the conclusion that Estrada had not yet made such a request. Moreover, Estrada testified that she was not available to work until April 27, 2022, the last day of her disability leave. Not until that date, did she submit the request and availability form. Did A Job Opening Exist? The General Counsel does not allege that the Respondent had a policy of letting any employee transfer to any store, re- gardless of its need for another employee at that store. It would be difficult to find any employer that had such a transfer-at-will policy, which could quickly result in many workers going where they weren’t needed. The Respondent’s transfer policy, quoted above, states that transfers “are contingent upon business needs, partner availabil- ity and partner performance.” (Italics added.) Therefore, as- suming that a refusal to transfer an employee is a cognizable adverse employment action, a matter to be discussed below, the General Counsel must, to prove discrimination, show that the Respondent had a job opening available at the location to which 12 Berns’ testimony about what Ivan said is hearsay and I consider it only for the limited purpose of determining whether Berns meant union or protected activities when she used the word “drama.” 13 There is no evidence that Berns mentioned “avoiding drama” when she told Estrada that she did not approve the transfer. However, that was not the main reason for denying the transfer and it also was a delicate subject which could cause hard feelings if she brought it up. 14 The complaint does not allege that Respondent, through Berns, also discriminated against Estrada by not allowing her to work at the Waukegan store as a “borrowed partner.” Estrada wanted to transfer or, at the least, had concrete plans to add an employee there, either by hire or transfer. However, the credited evidence does not establish that there was a job vacancy to be filled at the Grand & Green Bay store on either April 27, 2022, when Estrada submitted her transfer request, or on about May 4, 2022, when Berns denied it. Simi- larly, I find that the General Counsel has not proven that the Respondent had concrete plans, on either April 27, 2022, or on about May 4, 2022, to add an additional barista to the payroll of the Grand & Green Bay store. To the contrary, I find that the Respondent did not have a concrete plan to add another barista at the Grand & Green Bay store. Berns looked into the possibility of rearranging the hours of other baristas at the store to make room in the schedule for Estrada, but she was not going to undertake this task because she needed another barista. Rather, I conclude that she was willing to go to this trouble as a favor to Estrada. Estrada’s own testimony supports this conclusion. Estrada testified that on about April 1, 2022, she contacted Emily Gomez, who was then the temporary manager of the Grand & Green Bay store. As quoted above, Gomez informed Estrada that “we have hired fully at the Lakehurst and Grand & Green Bay store.”15 In March 2022, the Grand & Green Bay store had been closed for remodeling. Gomez was the interim manager when the store reopened on April 1, 2022, and continued in that ca- pacity until April 11, when Meghan Berns took over as full- time manager. Gomez credibly testified that, when the store reopened on April 1, “the most important thing to me was to make sure that this new manager coming in had a store that was fully staffed. . .” District Manager Dan Estes confirmed what Estrada had learned from Gomez. Estrada testified that when she spoke with Estes “he basically said the same thing, that both stores were fully staffed.”16 Additional confirmation came from Berns. She testified that when she became manager on April 11, 2022, the store was fully staffed. Only days after she took over, Berns provided this same information to Estrada. No credited evidence affords a reason to doubt that, as of April 11, 2022, the store had all the baristas needed. Additionally, no credited evidence indicates that the situation then changed. More specifically, the record does not establish that, between April 11 and May 4, 2022, the store lost staff. Similarly, the record does not suggest that, during this period, the store increased the number of hours it was open for business or underwent any other change which would necessitate hiring more staff. 15 When the Grand & Green Bay store reopened on April 1, 2022, Gomez was both the interim manager of this store and the manager of another store in Waukegan, referred to as the “Lakehurst store.” On that date, Gomez sent Estrada a text message stating, in part, “I know both Waukegan stores are fully staffed but we can definitely see what else is open in the market depending on what your current SM says about the process!” 16 Presumably, the term “both stores” refers to the same two stores in Waukegan which Gomez mentioned in her April 1, 2022 text mes- sage to Estrada, the Grand & Green Bay store and the Lakehurst store. STARBUCKS CORP. 9 The General Counsel’s brief, citing Respondent’s Exhibit 28, argues that “the Respondent’s stated reason that the Waukegan store was fully staffed is proven false by the evidence they hired numerous employees from April 11 to June 3 as described above.” However, the exhibit cited by the General Counsel shows that after April 11, 2022, when Berns took over as man- ager, no barista was hired until May 19, 2022, about 2 weeks after Berns denied Estrada’s transfer request. Indeed, the cited exhibit shows that, during the entire month of April 2022, the only barista who hired or transferred into the store was Jennifer Jimenez, who joined the store’s staff on April 11, 2022. This was the very same day Berns became manager and therefore before Berns’ mid-April conversation with Estrada. Thus, Jimenez already was on the store’s em- ployee roster when Berns told Estrada that the store was fully staffed. After Jimenez came on board, no other barista joined the store’s staff until May 19, 2022, 2 weeks after Berns made the decision not to grant Estrada’s transfer request and informed her of that decision. Therefore, the General Counsel’s brief errs when it claims that a “flurry of hiring at the Waukegan store occurred even while Estrada’s April 27, 2022 transfer request was still pending.” Estrada’s request was pending be- tween April 27, 2002, and about May 4, 2022, when Berns denied it. No employee was hired or transferred into the Grand & Green Bay store during this period or for about 15 days thereafter. Needless to say, the fact that a barista transferred to the Grand & Green Bay store 2 weeks after Berns denied Estrada’s transfer request does not establish that the store needed a baris- ta on the date of the denial. Likewise, it does not establish that Berns, on about May 4, 2022, had concrete plans to hire a baris- ta or approve a transfer. Was Estrada Available to Work When Needed? The discussion above concerned whether a vacancy existed at the time Berns denied Estrada’s transfer request or, if not, whether Berns had concrete plans to add another barista to the staff, either by hire or transfer. The General Counsel’s brief advances an argument which relates to the availability of work, but which does not address the issue of whether there was a job opening. Specifically, the General Counsel disputes Berns’ explana- tion that she rejected Estrada’s transfer request because Estrada was only available to work a limited number of hours. The General Counsel’s brief states: Additionally, Respondent’s contention that Estrada had lim- ited availability to work is completely without merit because Estrada credibly testified that she had open availability of for- ty hours or more once she returned home from school because she would not be attending classes. Tr. 482. Respondent’s own records shows [sic] Estrada’s limited availability was valid only until May 15, 2022, which coincided with the end of her school term. R21, R32. However, this argument ignores how much information Berns actually had when she made the decision not to accept Estrada’s transfer request. Berns made that decision based on the documents Estrada herself submitted. Estrada gave the request and her availability form to Campus Town Store Manager Jeanette Ward on April 27, 2022, and Ward transmitted them to District Managers Estes and Griepen- trog on May 2, 2022. The form which Estrada submitted showed her availability for work during the period February 21, 2022, to May 15, 2022. The record does not indicate that the documents submitted by Estrada included any form showing her availability for work after May 15, 2022, and I conclude that she did not submit such a form with her April 27, 2022 transfer request. In the absence of a form showing that Estrada’s availability had changed after May 15, 2022, it would be reasonable for Berns to assume that Estrada’s availability remained the same. The form which Estrada submitted shows that she was available for work as follows: Mondays: Not available for work Tuesdays: 6:00 a.m. to 11:00 a.m. - 5.0 hours 5:00 p.m. to 7:30 p.m. - 2.5 hours Wednesdays: 6:00 a.m. to 12:00 p.m. - 6:0 hours Thursdays: Not available for work Fridays: 2:00 p.m. to 7:30 p.m. 2.5 hours Saturdays: Not available for work. Thus, Estrada was only available to work 19 hours per week. Significantly, she was not available to work during the lunch hour on any day of the week. Berns testified that she looked for applicants with “open and flexible availability” When asked what that meant, she ex- plained that she looked “for upwards of 40-plus hours availa- ble.” The General Counsel’s brief points out that some employees at the Grand & Green Bay store had limited availability. How- ever, that fact does not contradict the Respondent’s explana- tion. Berns already had a full employee complement when she was considering Estrada’s transfer application and was trying to determine whether rearranging other employees’ work sched- ules would free up hours for Estrada to work. Thus, Berns testified that she told Estrada: “I would look into it, if I could make any adjustments -” (Italics added.) The fact that some employees had limited hours and limited flexibility, left little if any room to make adjustments. Indeed, it frustrated any attempt to make adjustments. In sum, although the General Counsel has disputed the truth- fulness of Berns’ testimony concerning why she rejected Estra- da’s transfer request, the evidence discussed above does not undermine that testimony. Based upon my observations of the witnesses, I have credited Berns’ testimony, including her ex- planation concerning why she rejected Estrada’s transfer re- quest. LEGAL ANALYSIS Determining whether an adverse employment action violates the Act entails following the analytical framework which the Board described in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 However, such an analysis does not even begin until a threshold requirement is satisfied: There must be an adverse employment action. The Wright Line decision itself does not provide guidance on how to analyze this preliminary issue, which usually does not arise. In almost all cases, an adverse employment action obvi- ously does exist; someone has been discharged, disciplined, demoted or denied an undisputed benefit. However, this case is peculiar. The Respondent did not dis- charge or demote Estrada. It also did not reduce her hours or pay, change her working conditions, or subject her to discipli- nary action. Nothing negative happened to Estrada’s terms and conditions of employment, which remained the same as before. In St. Louis Cardinals, LLC, 369 NLRB No. 3, slip op. at 2 (2020), the Board stated: [U]nder Wright Line, the General Counsel must show by a preponderance of the evidence that, in response to protected activity, “the individual’s prospects for employment or con- tinued employment have been diminished or that some legally cognizable term or condition of employment has changed for the worse.” Northeast Iowa Telephone Co., 346 NLRB 456, 476 (2006); see also Bellagio, LLC v. NLRB, 854 F.3d 703, 709–710 (D.Complaint. Cir. 2017 (under Wright Line, “[a] finding of unlawful retaliation. . .requires a predicate determi- nation that an employer took an adverse action”). If Estrada’s terms of employment had included a right to transfer to a store of the employee’s choice under any circum- stances, such a hypothetical right, at least arguably, would be a term and condition of employment. Denial of such a concrete, established term and condition of employment would constitute an adverse employment action. However, the Respondent’s policy does not give an employ- ee any such right to transfer at will. To the contrary, the Re- spondent’s transfer policy states that at “all times, Starbucks retains sole discretion in determining whether a partner will be transferred.” No evidence suggests that the Respondent deviated from this policy and allowed employees to transfer at will, and I conclude that it did not. Estrada would convert what Store Manager Bowles told her into a promise of a transfer, but even her own testimony fails to establish that Bowles ever made such a prom- ise. Rather, her testimony suggests that Bowles merely was ex- plaining to her that she could work temporarily at another store as a “borrowed partner.” Over time, Bowles’ explanation about “borrowed partners” may have morphed, in Estrada’s thinking, into a discussion about a transfer and the discussion became a guarantee. Although such magical transformations may occur in dreams, in the waking world a wish does not become reality so easily. The credited evidence does not establish that Estrada’s terms and conditions of employment included a right to transfer, and I conclude that they did not. Therefore, Respondent’s refusal to transfer an employee is not an adverse employment action. Because the Respondent’s refusal to transfer her at the time she wished to the place she wished did not change her terms and conditions of employment and is therefore not an adverse em- ployment action. Accordingly, a Wright Line analysis is not necessary. Section 8(a)(3) of the Act states that it shall be an unfair la- bor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of em- ployment to encourage or discourage membership in any labor organization. . .” (Italics added.) 29 U.S.C. § 158(a)(3). Be- cause a right to transfer was not a term or condition of Estra- da’s employment, the Respondent’s refusal to transfer her to the Grand & Green Bay store in Waukegan, Illinois, was not an unfair labor practice within the meaning of Section 8(a)(3) and did not violate the Act. The complaint also alleges that refusing Estrada’s requested transfer to the Waukegan store violated Section 8(a)(1) of the Act, which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7” of the Act. 29 U.S.C. § 158(a)(1). Conduct which does not affect an employee’s terms and conditions of employment and does not violate Section 8(a)(3) nonetheless can violate Section 8(a)(1). For example, a threat of retaliation for union activity violates Section 8(a)(1) even if the employer does not retaliate. In this case, the Respondent made no such threat. Moreover, in no other way did it tell Estrada that it was refusing her trans- fer because of her union or other protected activities, nor does the record suggest that the Respondent made such a statement to any other employees. The Respondent did not communicate such a message orally, in writing, or by any conduct which would associate its refusal with protected activities. Therefore, I conclude that the Respondent’s refusal to transfer Estrada did not violate either Section 8(a)(1) or 8(a)(3). Although I have concluded that there was no adverse em- ployment action and that a Wright Line analysis is not neces- sary, in case the Board should disagree with this conclusion, I will examine the facts using a Wright Line framework. Under the Wright Line test, the General Counsel has the ini- tial burden of establishing that employees’ union activity was a motivating factor in the Respondent taking action against them. The General Counsel meets that burden by proving union activ- ity on the part of employees, employer knowledge of that activ- ity, and antiunion animus on the part of the employer. See Willamette Industries, 341 NLRB 560, 562 (2004) (citations omitted). However, to carry the General Counsel’s initial bur- den, the evidence of animus also must support a finding that a causal relationship exists between the employee’s protected activity and the employer’s adverse action against the employ- ee. Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019).17 If the General Counsel makes this initial showing, the burden 17 The General Counsel’s brief advocates that Tschiggfrie Proper- ties, Ltd., above, be overruled. After the submission of briefs in this case, the Board issued its decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023), which stated in part: “[T]he Board in Tschig- gfrie did not add to or change the General Counsel’s burden under Wright Line. Rather, the Board merely reaffirmed the principle, al- ready embedded in the Wright Line framework, that the General Coun- sel is required to establish that protected activity was a “motivating factor” in the adverse employment action alleged to be unlawful.” 372 NLRB No. 133, slip op. at 2. STARBUCKS CORP. 11 then shifts to the Respondent to prove as an affirmative defense that it would have taken the same action even if the employees had not engaged in protected activity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996); El Paso Electric Co., 350 NLRB 151 (2007) Here, the General Counsel has established the first two ele- ments. Estrada signed a letter demanding that the Respondent recognize the Union. That is certainly protected activity. Ad- ditionally, another employee emailed this letter to the Respond- ent’s president, along with a copy to the Respondent’s district manager. Those actions placed the Respondent on notice that Estrada had engaged in protected activity. To carry the government’s initial burden, the General Coun- sel also must prove the existence of animus. However, alt- hough the General Counsel’s brief claims that “the instant rec- ord is replete with evidence of the Respondent’s anti-union sentiments,” the complaint does not allege that any supervisor or manager made any statement which violated the Act. In- stead, the General Counsel contends that animus should be inferred from various facts. The General Counsel’s brief states: The timing of Peoria Store Manager Ward’s call to Waukegan Store Manager Berns to inform her about the unionization of the former store is critically consequential. Tr. 357. Berns admits she was initially willing to accept Estrada’s transfer to her Waukegan store. Tr. 327. But on April 27, 2022, Ward sent an email to Berns requesting to speak directly with her about the transfer. U8. In their subsequent conversation, on May 2, Berns admitted that Ward stated she felt “obligated” to inform Berns that the Peoria store had recently been orga- nized. Tr. 357. Berns then immediately withdrew her approv- al of the transfer because she claimed Estrada no longer “fit the criteria.” [Italics added.] The General Counsel’s argument rests on the premise that Berns had given her approval and then immediately withdrew it after learning from Ward about union activity at the store where Estrada was working. According to the General Counsel, the short time period between Berns’ learning about the union ac- tivity and her withdrawing approval (she “immediately with- drew her approval”) gives rise to an inference that antiunion animus caused her change of mind. This argument suffers from a fatal flaw: Berns never with- drew her approval of the transfer request because she had never given approval in the first place. The record not only fails to establish that Berns ever expressed such approval, it also fails to establish that she ever made a decision to approve, and I find that she did not. The only evidence which even arguably might support a finding that Berns had given approval is Estrada’s testimony that during their mid-April 2022 conversation, Berns “told me that she wanted to bring me in.” Even these words which Estrada attributed to Berns only in- dicate a desire to have her work at Berns’ store. Moreover, based on Berns’ credited testimony, I find that Berns simply expressed a willingness to look into the possibility of placing Estrada on staff. Berns’ statement that she would “look into it” itself signifies that she had not yet made a decision. If she already had made the decision, she would have no need to “look into it.” Moreover, Berns could not have made such a decision at that time because Estrada had not yet provided her with the infor- mation she needed to look into the possibility of rearranging employees’ schedules to free up hours for Estrada to work. Because the store already was fully staffed, such rearranging of schedules would not be easy, but in theory it might be possible if Estrada were available to work hours that other employees did not particularly want to work, or which could be made available to Estrada without too much inconvenience to the other baristas. However, Estrada admitted that during this conversation, they did not discuss when she would be available to work. Until Berns knew when Estrada would be available to work, she could not even begin the process of determining if room in the schedule could be made for Estrada. Without knowing what hours Estrada could work, Berns could not even begin the process of deciding whether or not to allow her transfer. Estrada gave her availability form to her own store manager on April 27, 2022. Berns did not receive this form until May 2, 2022, at the earliest, when Estrada’s store manager transmitted it to the district manager over the Waukegan store. If anything can be inferred from timing, it is that Berns did not make any decision about the transfer request until after the date she received the information to decide the question. That date was on or after May 2, 2022. Moreover, no evidence suggests that Berns, at any time after receiving the necessary information, approved the request. Accordingly, I find that Berns did not at any time, either before or after receiving Estrada’s transfer request, approve it. The General Counsel’s brief therefore errs when it claims that Berns immediately withdrew her approval after learning from Ward about union activity at the Peoria store. No infer- ence can be drawn from the timing of two events when one of the alleged events did not occur. Moreover, there is nothing suspicious about Ward, the man- ager of the Peoria store, talking with Berns, the manager of the Waukegan store, about Estrada’s transfer request. After all, Berns was seeking to transfer from one manager’s store to the other. Berns testified as follows about her conversation with Ward: THE WITNESS—We talked about Abby’s capability as a Partner; and she had mentioned that she was looking at a pos- sible corrective action for her attendance, which is something that I considered when deciding on whether it would be a good fit for a transfer. Q. BY MR. GROFF—Anything else you discussed in that call? A. THE WITNESS—She did tell me that she was obligated to let me know that her store was petitioning. Q. Anything else you discussed in that call? A. No. Thus, the two managers discussed Estrada’s work perfor- mance, which would be expected when an employee sought to transfer from one store to another. The fact that Ward men- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 tioned, during this conversation, that “her store was petition- ing,” does not suggest any hostility to the Union. Significantly, the testimony does not establish, or even sug- gest, that Ward told Berns that Estrada was a union supporter or active in the organizing campaign. Moreover, the testimony does not indicate that either Ward or Berns made any comment reflecting hostility to either the Union or to Estrada. The General Counsel’s brief also argues that “animus can al- so be inferred from Estes’ statement that he was unwilling to hire her within his district because of her “attitude.” The brief cites the following testimony which Estrada gave during her cross-examination by the Respondent’s counsel: Q. . . .Isn’t it a fact that Mr. Estes told you that the reason why you could not work anywhere in the district was because he didn’t like your attitude? A. He didn’t use those words exactly, but yes. The General Counsel’s brief states that it “is well-settled that an employer’s reference to an employee’s ‘bad attitude’ can be a thinly veiled reference to the employee’s protected concerted activity. Rock Valley Trucking Co., 350 NLRB 69 fn. 6 (2007); Northfield Urgent Care, LLC, 358 NLRB 70 (2012).” In Rock Valley Trucking Co., the manager who laid off the Charging Party not only used the word “attitude” but also, in explaining what he meant, referred to the Charging Party’s protected, concerted activities. Thus, the manager stated that “part of the attitude” was telling employees that the manager played favorites. Rock Valley Trucking Co., 350 NLRB at 69– 70. Thus, the context made clear that, in this instance, the manager was referring to protected activities. The General Counsel also cited Northfield Urgent Care, LLC, above, for the proposition that “attitude” can be a veiled reference to animus. Although I did not see the word “attitude” in that decision, there are a number of other cases in which the Board found that “bad attitude,” in context, referred to protect- ed activities. See James Julian Inc. of Delaware, 325 NLRB 1109 (1998), and cases cited therein. However, not even the Urban Dictionary, let alone Web- ster’s, defines the word “attitude” to be synonymous with “ac- tivity protected by the National Labor Relations Act.” The word may refer to many different things. Therefore, it must be clear from context that the speaker is making a veiled reference to protected activity. For example, in L. S. Ayres & Co.221 NLRB 1344 (1976), a manager, Allen, gave employees a 15-cent hourly wage in- crease and told each employee that she would receive an addi- tional 15-cent increase if her “attitude” improved. The Board panel majority concluded that the word “attitude,” as used by Allen, referred to prounion attitude. Chairman Murphy disa- greed, stating that nothing indicated the manager had used the word in that way. In response to this dissent, the panel majority stated: In light of Respondent’s avowed antiunion position, its knowledge of the union activities of [two employees] by vir- tue of Manager Allen’s admission that she knew they wore union badges, Respondent’s almost identical pattern of con- duct with respect to the wage increases in that each employee was told that she was supposed to receive a 30-cent-per-hour raise, but was given 15 cents at the time and was told she could obtain the other 15 cents depending upon a change in her “attitude,” and the existence of no other credible reason for relating the wage increases to their “attitude,” we are led inexorably to the conclusion that Respondent was equating “attitude,” with union sentiment and violated Section 8(a)(1) of the Act by its unlawful offer to [the employees] of addi- tional wage increases dependent upon their withdrawal of support for the Union. 221 NLRB at 1344–1345. Thus, in concluding that the manag- er used the word “attitude” to mean supporting the union, the Board did not consider the word in isolation but took into ac- count all the circumstances. In the present case, Estes admittedly is the Respondent’s su- pervisor and agent, but the General Counsel has not alleged that Estes violated the Act by telling Estrada that she could not work in his district because he didn’t like her attitude. Of course, a statement certainly can constitute evidence of unlaw- ful motive without itself being an unfair labor practice. How- ever, the record does not establish, or even suggest, that Estes said anything which would link the word “attitude’ to Estrada’s union activities or sympathies. It is true that, in February 2022, Estrada had signed a peti- tion, which was sent to the Respondent’s president, demanding that Starbucks recognize the Union. So had 10 other employees at the Campus Town store. Thus, Respondent had notice that Estrada supported the Union. However, Estrada’s testimony does not establish that Estes mentioned the petition or the union activities of any of the Respondent’s employees. Moreover, the record suggests there were other reasons why Estes might believe Estrada had a bad attitude. Ward’s May 20, 2022 email about her conversation with Berns, which is quoted above, includes the following: Meghan said that Abby has made a negative impression visit- ing surrounding stores in the area trying to (I guess) pressure other SM’s to transfer her in. Estrada was not engaged in concerted activity when she con- tacted these managers, but was acting solely on her own behalf. The fact that Estrada’s inquiries created a negative impression suggests that some regarded her as pushy. In that same email, Ward had quoted Berns as saying that there “used to be a lot of drama previously at the store and she’s working toward keeping that negative element out of the store . . .” The record does not indicate that this “drama” re- sulted from union or protected activities, but rather that it con- cerned a personal relationship which Estrada had had with an- other worker. For these reasons, I do not find that Estes was making a veiled reference to union activities or sympathies when he re- ferred to Estrada’s “attitude.” Moreover, on cross-examination, Estrada gave the following testimony about this conversation with Estes: Q. But at least in March of 2022 when you had your conver- sation with Dan Estes he did say that there were other stores potentially in the district that you could transfer to? A. Correct. STARBUCKS CORP. 13 Thus, at the time of this conversation, Estes was not hostile to Estrada transferring into his district.18 That fact is consistent with my conclusion that his use of the word “attitude” was not a manifestation of antiunion animus. The General Counsel’s brief also claims that a July 6, 2022 email from Peoria Store Manager Ward constitutes evidence of animus. The brief states: Additionally, in another email, dated July 6, Peoria store manager Ward sent an email to upper management stating, “this particular partner’s actions have required special atten- tion” and “this is a unique situation and wanted to ensure it get[s] the attention it needs.” U3. these emails coupled with Ward’s conversation with Berns demonstrates Ward harbored animus against Estrada for being a union supporter. Tr. 357 U8. In truth, this email has nothing to do with Estrada’s protected activities. There is an entirely different reason why the store manager called the situation “unique” and warranting special attention. After the spring semester ended at Bradley University, Es- trada filed for unemployment compensation benefits. That was unusual because the Respondent had not discharged her or laid her off. Indeed, nothing in the record suggests that the Re- spondent reduced her hours or took any other action which would have discouraged her from working. However, Estrada did not appear interested in working at either the Peoria store or at another store, in North Chicago, Illinois, which later accept- ed her transfer. Estrada testified as follows on cross- examination: Q. Why didn’t you -- why did you wait until July to contact the North Chicago store? A. Because I had applied for unemployment, and at the time I was just waiting for results from unemployment and knowing like which store to transfer to. After considering this unusual situation, management decid- ed that if Estrada wished to remain an employee, she would have to find and transfer into a store where she was willing to work. On July 6, 2023, someone19 in the Respondent’s unemploy- ment claims department emailed Store Manager Ward to obtain information about Estrada’s employment status. The same day Ward received this email, she forwarded it to higher manage- ment with the following explanation, which includes the text quoted by the General Counsel: I wanted to forward this request to you all as Lyndsay 18 By June 27, 2022, Estes’ attitude towards Estrada had changed. As discussed at some length later in this decision, I find that this change resulted from emails he had received from the manager and assistant manager of a store in Round Lake, Illinois, describing a telephone call they had received from Estrada. 19 It is not possible to identify the individual who sent the email be- cause the “from” address was DO NOT REPLY@hrsupport.starbucks.com. The subject line of the email stat- ed: ATTN: STORE MANAGER - CONFIDENTIAL - UNEMPLOYMENT CLAIM - REPLY BY 07/08/2022 [followed by the case number]. [Griepentrog] is on vacation and this particular partner[‘]s ac- tions have required special attention. To share what I know, Abby was supposed to connect with Lyndsay by this last (holiday) weekend to notify Lyndsay if she’d found a store to transfer her to, otherwise we would be separating Abby. I do not believe that I am the one to fill out the information within email request and that it should go directly to corpo- rate, however, this is a unique situation and wanted to ensure it gets the attention it needs. Please let me know if I should do anything. Thank you for your support! Thus, Ward’s July 6, 2022 email to higher management did not concern Estrada’s union or other protected activities or even mention such activities. Rather, it concerned the “unique situa- tion” of Estrada drawing unemployment compensation while still listed as an employee, and management’s decision that if she wanted to remain an employee, she would have to be work- ing at a store. Accordingly, it does not constitute evidence that Respondent was hostile to Estrada because of those activities. The General Counsel’s brief also urges that I draw an ad- verse inference from the Respondent’s failure to call Ward as a witness. However, as noted above, the Respondent had dis- charged Ward for reasons not related to either Estrada’s pro- tected activity or to the union organizing drive. Because Ward no longer worked for the Respondent and no longer was under the Respondent’s control, I will not draw an inference from the Respondent’s not presenting her as a witness. The present record does not establish that the Respondent harbored animus towards Estrada or towards the Union’s or- ganizing campaign at the store where she worked. To the con- trary, the record suggests that if anything, management helped Estrada pursue her transfer request. Estrada’s transfer from the Peoria store to the North Chicago store will be discussed below, in connection with complaint paragraph 5(b). However, it may be noted here that the manag- er of the Campus Town store, where Estrada had worked before filing for unemployment, did not dally when she received Es- trada’s transfer request. Rather, she transmitted it promptly to the appropriate district manager and store manager. Thus, the evidence in this case does not reflect that the Respondent’s supervisors and managers manifested animus either through their actions or by inaction. The General Counsel also contends that the Respondent pre- sented shifting explanations, and that doing so is evidence of animus. However, in my view, the Respondent’s explanations did not shift appreciably. The main reason for the Respondent’s refusal to transfer Es- trada from the Peoria store to the Waukegan store was simply that the Waukegan store already had a full complement of em- ployees. An explanation that Estrada would not be available at the times needed was not a shifting explanation somehow at odds with the explanation that the store already had enough employees, but rather was just a different way of making the same point. Berns did tell Estrada that, although the store was fully DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 staffed, she would look into the possibility of making adjust- ments. However, when Berns looked at Estrada’s availability sheet, she realized no such adjustments would be possible. Thus, the underlying reason for not accepting the transfer re- mained the same: There already were enough employees. Certainly, Berns may have been reluctant to discuss with Es- trada the other problem, which was rather delicate. Estrada had been in a close relationship with another employee, and after their breakup he had accused her of stalking him. The fission of their relationship had caused emotional fallout, and bringing the two close together in the workplace might create a critical mass. Berns’ decision not to mention this subject when she spoke with Estrada does not suggest that she harbored antiunion animus but only indicates a desire to avoid unpleasantness. The General Counsel’s brief also argues that animus may be found in this case based on another administrative law judge’s decision in a separate case involving the Campus Town store. However, it does not appear that the Board has ruled on that decision or adopted the judge’s findings. My great respect for that other judge does not excuse me from the duty to make my own findings based on the evidence in this case and my obser- vations of the witnesses. Additionally, I conclude that it would not be appropriate to infer animus in this case because of other recent decisions in- volving this same Respondent. The Board has found that the Respondent violated Act at some other locations. See, e.g., Starbucks Corporation, 372 NLRB No. 112 (2023), pertaining to a store in Ann Arbor, Michigan, Starbucks Corporation, 372 NLRB No. 50 (2023), concerning a store in Seattle, Washing- ton, and Starbucks Corporation, 372 NLRB No. 93 (2023), concerning one of the Respondent’s stores in Philadelphia, Pennsylvania. However, the present record does not suggest that any of the managers and supervisors in this case were fol- lowing, or influenced by, any antiunion policy dictated by man- agers at a higher level. Indeed, the evidence fails to establish that such a policy even exists. Moreover, even if the unfair labor practices in the other cases gave rise to an inference of animus in this one, it would not support a finding that a causal relationship exists between the protected activities in this case and the Respondent’s alleged adverse action against Estrada. Therefore, were I to perform a Wright Line analysis, I would conclude that the General Coun- sel has not carried the government’s initial burden of proof. However, for the reasons stated above, a Wright Line analy- sis is not necessary because the General Counsel has failed to establish that the Respondent’s failure to transfer Estrada to the Grand & Green Bay store constituted an adverse employment action. Therefore, I recommend that the Board dismiss the allegation arising from complaint paragraph 5(a). Estrada’s Transfer To The Peoria Store Complaint paragraph 5(a), discussed above, alleged that about mid-April 2022, the Respondent refused to transfer Es- trada from its Campus Town store, in Peoria, to its Grand & Green Bay store in Waukegan. Complaint paragraph 5(b), to be discussed below, alleges essentially the opposite. As amended, it alleges that, in mid-August 2022, the Respondent refused to transfer Estrada to its Campus Town store in Peoria. How can that be? Wasn’t Estrada already working in the Peoria store? If so, how could she be transferred (and why would she request to be transferred) to the store where she al- ready was working? It turns out that, after the events discussed above, Estrada did get a transfer away from the Peoria store to a store closer to her home. As discussed above, it wasn’t to the Grand & Green Bay store in Waukegan, but to one not far away in North Chicago. Before proceeding to the allegation in complaint paragraph 5(b), as amended, concerning Estrada’s request to transfer back to the Peoria store, it will be helpful to explain how she got a transfer away from that store to the store in North Chicago. Otherwise, there would be a puzzling gap in the sequence of events. Additionally, during the time period under considera- tion here, Estrada engaged in some further protected activity. As discussed above, on about May 4, 2022, the manager of the Waukegan store, Meghan Berns, told Estrada that her re- quest to transfer to that store was denied. After receiving this news, Estrada and 6 other workers at the Campus Town store decided to conduct a brief strike to protest this denial and also to protest a disciplinary action which another employee had received. The strike began at 5:30 a.m. on May 14, 2022, and lasted 7-1/2 hours. Either before or during the strike, the employees provided to Store Manager Ward a letter explaining their action. It stated, in part: We are striking over the following issues: Abby [Estrada] is being denied her right to transfer to her home store #14472 for the duration of summer break. The unprecedented write-up given to Jon while concur- rently being subpoenaed to testify at the NLRB hearing. The recent loss of hours due to mass store hours being cut because of negligible hiring practices that both di- rectly and indirectly affect our workers. We had to fight and submit a ULP20 for retaliation against our workers who wanted to transfer out of the Campustown store for the duration of the summer. While it was granted on paper, in reality this has not been followed through in good faith. Abby Estrada has been singled out with her transfer to her home store Grand & Greenbay in Waukegan, IL being denied. This is illegal. We will not stand for this. We demand that Abby be allowed to start work immediately. All of the other transfers are going through, so we know it is possi- ble. In addition, we demand Jon’s write-up be redacted immediately. Lastly, we demand fair scheduling and re- 20 The words “submit a ULP” do not refer to the charge or amended charge in the present case. The original charge in the present case was not filed until August 4, 2022, about 2-1/2 months after the May 14, 2022 strike. Rather, “submit a ULP” would appear to refer to one of the unfair labor practice charges which led to the administrative law judge’s decision cited in the General Counsel’s brief. The brief identi- fied those charges as Cases 25–CA–292501, 25–CA–296190, and 25– CA–00616. STARBUCKS CORP. 15 instatement of our standard store hours effective imme- diately. We will conclude our strike at 1:00 p.m. on May 14th, at which point we will return to work unconditionally. Sincerely, [Estrada’s name, and the names of the six other employees, appeared at the bottom.] The record suggests that at some point after this brief strike Estrada filed for unemployment compensation benefits. How- ever, as noted above, the General Counsel does not allege that the Respondent discharged Estrada or laid her off from her job at the Peoria store or took any other action which would cause her to stop working there, and the record would not support any such finding. Therefore, I conclude that any decision Estrada made to stop working and file for unemployment benefits was voluntary and uncoerced. Estrada’s filing for unemployment benefits did not remove her name from the employee roster. However, after receiving notice of Estrada’s unemployment claim, management decided that she could not forever remain an employee in name only. To continue as an employee, she would actually have to be working in a store somewhere. On June 27, 2022, Howard Jackson, in the Respondent’s partner relations department, sent District Manager Griepentrog an email with information that Griepentrog should give to Es- trada. In this reply, Jackson referred to Estrada as “BAR,” presumably an abbreviation for barista. His email stated, in part: If BAR is reaching out to you directly, my recommendation would be as follows: Call and try to engage with BAR regarding the status of her transfer request Advise BAR that it is her responsibility to find a store to transfer to Advise that BAR’s current absence from store 8919 is unauthorized Advise BAR that she needs to make a decision about what she wants to do: Confirm employment at another store (must be within a reasonable timeframe - agree on a deadline) Return to current store Resign and re-apply [Italics added.] Thus, management gave Estrada 3 options. She could (1) re- turn to work at the Peoria store (referred to in Jackson’s email as “store 8919”), where she had been working before she de- cided to file for unemployment benefits, or (2) find another store which would accept her as a transfer and work at that store,21 or (3) if she was not willing either to work at the Peoria 21 It should be noted that all baristas who want to transfer, and not just Estrada, must find another store willing to accept them. The Re- spondent was not singling her out for different treatment. store or to find another store and work there, she would have to quit. Griepentrog wasted no time in providing this information to Estrada. Ten minutes after receiving the information from Jackson, she reported back to him that “I just spoke with her and she would like until the end of the week to work on finding a store to transfer. I shared that if that doesn’t happen she would need to come back to Campustown or resign and reap- ply.” Jackson replied, “That sounds reasonable. Let me know if for some reason she doesn’t follow the plan.” However, Estrada did follow the plan and opted for choice 2, seeking a transfer to a North Chicago store not far from the Grand & Green Bay store. On cross-examination, she admitted she took this step to save her job: Q. And in fact, the only reason why you decided to try to transfer to another store was because Starbucks told you that you would be separated because you didn’t have a store? A. Correct. Estrada’s June 27, 2022 Conversation With Estes Griepentrog gave Estrada the information from Jackson— that she would have to choose between working at the Peoria store, finding and working at another store or quitting—on June 27, 2022. That same day, Estrada telephoned District Manager Dan Estes. Estrada testified: I expressed to Dan how I seen on Indeed he was hiring stores, hiring baristas within the district, and was looking for baristas. And so I called him to follow up on that, and I wanted to know if I could transfer back because I had waited a bit and talked with him about it. And then he said that I disrespected his store managers and went against what Starbucks stood for in the conversations that I had with them. And because of that, he would not be processing any transfers or (inaudible). Meaning, sorry, he won’t be allowing my transfer within the Waukegan district. Estes did not testify, and I credit Estrada’s uncontradicted testimony. However, it should be noted that Estrada did not claim that Estes made any remark about her union activities. Thus, although Estes said that Estrada had disrespected his store managers, he did not suggest it was because she supported the Union, engaged in the brief May 14, 2022 strike, or en- gaged in other protected activities. Estrada’s testimony does not indicate that Estes explained ei- ther what he meant by “what Starbucks stood for” or how she had gone against it. However, he provided a clue. Estes told Estrada the first names of two store managers whom she sup- posedly had “disrespected.” They were Laura and Jason. Estrada believed that “Laura” referred to the manager of a store in Round Lake, Illinois, a northern suburb of Chicago. She had a conversation with this store manager, bud did not believe she said anything offensive or disrespectful to this man- ager. Estrada testified: Q. Okay. All right. Tell me about that conversation. How’s the conversation go with Laura? A. So basically I called Laura because I was looking for other DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 stores to transfer to, and I spoke with her and I told her a little bit of the situation that was going on. I expressed to her that I was scared and that I didn’t know what to do. And she told me that there wasn’t much she could do on the subject and not really speak on it. She related me to Partner Relations. Part- ner-- PRSSC. And after that, it went great. The conversation ended.22 However, the store manager’s version of this conversation is dramatically different. Laura, whose last name is Mendez, did not testify, but an email she wrote to Estes is in evidence. Mendez, who is manager of the Respondent’s store at Round Lake Beach, Illinois, sent the email on May 24, 2022. Her Assistant Manager, Jason Rinaldi, sent Estes a similar email on May 26, 2022. Both of these emails describe the conversation which took place on about May 12, 2022, when Estrada called the store. The Mendez email stated, in part: When Abby [Estrada] called, she was both aggressive and highly agitated. She started the conversation by stating “Laura, I want to know that everyone is against me.” I put Abby on speakerphone so that my ASM, Jason Rinaldi, could be a witness to the conversation as it was unclear as to why this partner was shouting. It was very difficult to get a word in, but once I was able to get Abby’s attention, I worked diligently to deescalate the sit- uation. I had to repeatedly tell her that I was not comfortable nor equipped to comment on conversations to which I was not present. I told her that I understood that she was upset but that the current SM of that store may not be in need of a trans- fer based on their current staffing plan. I suggested she give PRSC a call to first find out if a union worker could work in corporate stores as I was unaware of the current protocol. Abby continued to verbally lash out with allegations, rude comments and it was a very difficult situation to navigate. By the end of the conversation Abby calmed down quite a bit, but remained agitated, confrontational, and unprofessional. The email to Estes from Assistant Store Manager Rinaldi was similar.23 22 Estrada did not explain why she told the manager she was scared. The record does not reveal any actions at work which would have caused her to be afraid. Additionally, the complaint did not allege any unlawful threat and the record would not support such an allegation. 23 The two managers’ emails were not identical, but the wording was similar enough to suggest either that Mendez and Rinaldi worked together in composing them or that Rinaldi, who sent his email 2 days after Mendez did, used her email as a pattern. Mendez and Rinaldi used the same phrases so often it is difficult to believe the similarity was mere coincidence. For example, Mendez wrote, “I worked diligently to deescalate the situation.” Rinaldi wrote, “Laura attempted many times to deescalate Abby. . .” The concluding paragraph of Mendez’ email stated that by the end of the conversation “Abby calmed down quite a bit but remained agi- tated, confrontational and unprofessional.” Rinaldi’s concluding para- graph stated that “by the end of the conversation Abby calmed down quite a bit, but remained agitated, confrontational, and unprofessional throughout the entire conversation.” Estrada’s testimony roughly parallels the managers’ version of the conversation but there are some differences. Estrada testified that the last of the conversation “went great” while the managers stated that she “calmed down.” Both managers included in their emails an almost identical phrase about Mendez suggesting that Estrada call partner rela- tions to “find out if a union worker could work in corporate stores,” but neither email explained the reference.24 However, Estrada’s testimony about this conversation omits any reference to a union. Specifically, as quoted above, Estrada testified that “Laura” told her, “that there wasn’t much she could do on the subject and not really speak on it. She related me to Partner Relations. Partner—PRSSC. And after that, it went great. The conversa- tion ended.” Thus, Estrada’s account leaves the impression that Mendez simply recommended that she contact partner relations to help her find a store to which she could transfer. The email of Store Manager Mendez, quoted above, stated that she suggested Estrada call PRSC (the partner relations depart- ment) to “find out if a union worker could work in corporate stores.” Similarly, Assistant Store Manager Rinaldi’s report stated that Mendez “suggested she give PRSC a call to first find out if a union worker could work in corporate stores as I was unaware of the current protocol.” Thus, oddly, it is evidence submitted by the Respondent, and not the testimony of the General Counsel’s witness, which indi- cates that the subject of the Union came up during the conver- sation. However, although exactly what was said about the Union remains a mystery, no evidence indicates that either manager told Estrada that she could not transfer because of her union membership or activities. Nothing in either Estrada’s testimony or the managers’ emails indicates that the managers, or the Respondent, harbored animus. There are reasons to doubt the managers’ harsh description of Estrada’s behavior during the call. Considering that about It seems a bit unlikely that, if the two had been writing independent- ly, both would have used the word “deescalate” or the phrases “calmed down quite a bit” and “agitated, confrontational, and unprofessional.” 24 It is possible that some managers, who had no previous experi- ence with labor relations matters, were unsure whether an employee in a bargaining unit represented by a union could transfer to a store where the employees were unrepresented. However, it is also possible that Estrada did not know the answer to this question and brought it up with managers. For example, Estrada testified that in March 2022, she went to a store managed by Emily Gomez to pick up a pail and, while there, talked with Gomez “a little bit about the transfer situation, and she said, well, you’re a union store, so I don’t think you’re able to transfer to a non–union store.” That testimony creates the impression that it was Gomez who first mentioned unions. However, in Gomez’ version, Estrada brought up the subject. Gomez testified that Estrada: told me that she transferred back and forth for school. She then told me that her current store is petitioning to unionize and asked me if that petition would prevent her from being eligible to transfer. I told her I did not know the answer to that. I encouraged her to talk to her current store manager about that process. . . Based on my observations of the witnesses, I credit Gomez. There- fore, I find that Estrada, not Gomez brought up the subject of unions on this occasion. STARBUCKS CORP. 17 12 days elapsed between Estrada’s call and the emails memori- alizing it, as well as the similar wording of those emails, I sus- pect the managers wrote them at someone else’s request and with a particular purpose in mind. That purpose could not have been to paint a flattering portrait of Estrada as diplomat. But neither Mendez nor Rinaldi took the witness stand. The documents clearly are hearsay and I do not consider them for the truth of their contents. To the contrary, I remain skeptical. However, the emails do memorialize what Mendez and Rinaldi told Estes about Estrada’s conduct. Therefore, they do explain why Estes might believe that Estrada had “disrespect- ed” store managers. Accordingly, I do not conclude that the statement which Estrada attributed to Estes—that she had “dis- respected his store managers and went against what Starbucks stood for” —was a veiled reference to her union activities or her participation in the May 14, 2022 strike. Rather, it reflected the managers’ descriptions of Estrada in the emails they sent to Estes. If he really made the statement Estrada attributes to him, it nonetheless does not constitute evidence of animus. Estrada Contacts the North Chicago Store After Estrada learned, on June 27, 2022, that she would have to be working at a store or else quit, she contacted a store in North Chicago, Illinois. Its managers welcomed her. On July 5, 2022, the assistant manager of the North Chicago store, Natalie Brooker, sent an email to District Manager Kee- lan Collins, informing him that Estrada wanted to transfer to her store. Collins replied, “Great news!” On July 8, 2022, Lyndsay Griepentrog, the district manager over the Peoria store where Estrada was working, emailed Part- ner Resource Manager25 Julie Wendell the following message: “I spoke with Abby today and she said she found a store. As soon as that is confirmed with the receiving SM/DM26 I’ll ap- prove the transfer.” After receiving the transfer request paperwork, Griepentrog emailed it to Peoria Store Manager Ward on July 12, 2022. The same day, Ward emailed it to Assistant Store Manager Brooker and to the Respondent’s Regional Director, Jorge Ar- za, who is above district managers in Starbuck’s chain of com- mand. On July 14, 2022, Brooker emailed the paperwork to her District Manager, Keelan Collins. After reviewing it, Collins replied to Brooker: “Hey! Please double check that the availa- bility is accurate. we require weekend availability or at least 1 day and I don’t see that.” On July 18, 2022, Brooker replied to Collins: “I spoke to Ab- igail (Abby) Estrada and her availability is completely Open.” Two minutes later, Collins emailed Griepentrog: “Just wanted to confirm that you do approve this transfer for Abby Estrada. Thanks.” Griepentrog answered, “Yes, I approve. Thank you!” The Respondent put Estrada on the payroll at Brooker’s store the same day. However, in less than a month, Estrada wanted to transfer 25 In other companies, Wendell’s title likely would be “human re- sources manager.” The Respondent calls its employees “partners” and has a “Partner Resource Department.” 26 “SM/DM” appears to be an abbreviation for “store manag- er/district manager.” back to the Peoria store. Ultimately, she did get to return to the Peoria store, but the transfer took longer than the General Counsel thinks it should have. Complaint Paragraph 5(b) Complaint paragraph 5(b), as amended, alleges that in about mid-August 2022, the Respondent refused to transfer her from the North Chicago store to the Campus Town store in Peoria. Complaint paragraph 7 alleges that the Respondent thereby violated Section 8(a)(1) and (3) of the Act. The Respondent denies these allegations. On August 11, 2022, Estrada submitted a transfer request form. The next day, Assistant Store Manager Brooker wrote the following in the “manager comments” box on that form: “Abby has been a wonderful addition to our team! Always coming in with a positive attitude and really brings the Star- bucks experience to life not only for our customers, but our partners as well.” However, the manager of Campus Town store, to which Es- trada wanted to return, was not so enthusiastic. In an August 13, 2022 email to the manager of the North Chicago store at which Estrada worked, Jeanette Ward stated: Our staff at 8919 is abundantly filled with college students and to maintain a fair and diverse balance of partners we can- not accept any more students at this time. There are several other locations in our area that should have space to support this partner and recommend they reach out accordingly. On August 15, 2022, District Manager Collins, who oversaw the district which included the North Chicago store where Es- trada was working, emailed District Manager Griepentrog, whose stores included the Peoria store where Estrada wanted to transfer. The tone of Collins’ email suggested no hostility but just the opposite, a desire to help Estrada transfer to a store in the Peoria area: I am not certain of Abby’s ability to commute to another loca- tion, but wanted to send this transfer request to see of any po- tential needs in other locations in Peoria. Just in case Abby can determine a mode of transport to get to another location that may be able to support her. Let us know if you have any questions Griepentrog replied: “Let me talk to a couple of SM’s and see what we can do.” On September 1, 2022, District Manager Collins emailed Griepentrog for an update. The next day, Griepentrog replied: I’m working on it. Unfortunately, Abby did not leave a good mark on the district when it comes to mission and values so it’s taking me a lot of leg work/convincing to find her a home. I’ll get back to you next week with a final answer though. Although Griepentrog testified, no one asked her what she had meant by “mission and values.” Griepentrog did not men- tion either Estrada’s union activities or her participation in the May 14, 2022 strike. The record suggests that a personality conflict between Es- trada and Campus Town Store Manager Ward may have caused Ward to oppose Estrada’s transfer back to her store. According to Emily Gomez, Estrada once had said that her current store DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 manager was “a bitch and that no one liked her and that was part of the reason that they were petitioning to unionize.” Gomez’ conversation with Estrada took place some time before April 1, 2022, when Estrada’s store manager was Jeanette Ward.27 On Monday, September 5, 2022, the Respondent fired Ward. The reason for Ward’s termination did not relate to Estrada, but the discharge removed an obstacle to her transfer back to the Peoria store. On September 9, 2022, Griepentrog sent to Col- lins an email stating “with some changes at Campustown, we can accommodate her transfer there now.” However, Collins had some difficulty reaching Estrada. The day before he received Griepentrog’s email, he had sent her this text message: “Hey! This is Keelan. I hope you get this. I never heard back from you. U ok?” It appeared that Collins may then have spoken briefly with Estrada by phone, but she told him to call her back. He tried but did not reach her. Collins sent Estrada a text message stat- ing: “When I call this number it doesn’t let me have voicemail. Difficult.” Collins continued to have difficulty reaching Estrada, who did not have a phone in September 2022. Without a phone, she could receive neither calls nor text messages. After obtaining a phone app which worked over the Internet, Estrada testified, she then had problems with the Wi-Fi connection at Bradley University: Q. Okay. So how did you know that someone was trying to contact you? A. When my phone was able to get Wi-Fi I was able to see the messages. Q. Okay. And when was that? A. It would have been October. Estrada spoke with District Manager Collins on October 3, 2022. She told him that she would contact the new manager of the Peoria store, Mic Burnett. However, it is not clear that she did so right away. On Octo- ber 7, 2022, Collins emailed Griepentrog. After informing Griepentrog that Estrada did not have voicemail, Collins stated: “Let me know if you do not hear from her in regards to com- pleting this ongoing transfer request from August and I will reach out one last time. I have a text only number that seems to be the current contact.” On October 12, 2022, at 9:06 a.m., Collins sent Estrada this text message: “Good Morning! I sent you a text on 10.6. I will need to know if you initiated the transfer with the store at school by Friday 10.14.22.” On October 14, 2022, at 3:34 p.m., Estrada replied: “Hi Kee- lan, I’m sorry I didn’t get back to you sooner. Things have been hectic. Spoke to Mic today and he is going to call you very shortly. He was on vacation & lyndsay hasn’t responded to me at all.” Collins replied: “Ok. He’s figuring out how to facilitate the transfer asap.” 27 Although Estrada testified regarding a conversation she had with Gomez, she did not mention making this remark and no one asked her about it. In response, Estrada texted: “[O]kay! Just talked to him! Thank you for being patient with me!!” Three days later, on October 17, 2022, Estrada transferred to the Peoria store. ANALYSIS Although complaint paragraph 5(b), as amended, alleges that in “about mid-August 2022” the Respondent refused to transfer Estrada to the Campus Town store in Peoria, the Respondent did indeed transfer Estrada to that store in October 2022. How- ever, the complaint does not allege that Respondent unreasona- bly delayed granting the transfer. Considering that Estrada eventually did transfer to the Cam- pus Town store, it is relevant to ascertain whether there ever was a point in time when the transfer request was actually de- nied. The facts here contrast with those discussed above in connection with complaint paragraph 5(a). There, Manager Berns explicitly told Estrada, on about May 4, 2022, that her transfer request was denied. Thus, the date of refusal was easy to pinpoint. Here, the record does not establish that anyone told Estrada that her August 11, 2022 request to transfer back to the Campus Town store was denied. However, the manager of the Campus Town store made that clear to Estrada’s boss, the manager of the North Chicago store, on August 13, 2022. On that date, Manager Ward sent Manager Novak an email stating “We can- not accept any more students at this time.” The Respondent’s transfer policy states: “Ultimately, per- mission for a partner transfer is at the discretion of the store manager and/or district manager.” Neither Ward’s district manager nor Novak’s district manager overruled her decision. Instead, District Manager Griepentrog began trying to find other stores in her district, and therefore close to the university, which would accept Estrada as a transfer. Because the district manager did not overrule the store man- ager’s rejection of Estrada’s transfer request, I conclude that the Respondent denied Estrada’s transfer request on August 13, 2022. The record does not suggest that Estrada had to submit a new request before her transfer to the Campus Town store in October 2022, but the absence of such a new request does not change my conclusion that her August 11, 2022 request was denied 2 days after she submitted it. However, for the same reasons discussed above in connec- tion with complaint paragraph 5(a), I conclude that this rejec- tion of the requested transfer did not constitute an adverse em- ployment action because it did not change her terms and condi- tions of employment in any way. She remained employed at the North Chicago store doing the same work at the same pay rate. Additionally, for the same reasons discussed above, I con- clude that a right to transfer at will was not a term or condition of Estrada’s employment. Because it was not, any delay in granting a transfer request was not “discrimination in regard to hire or tenure of employment or any term or condition of em- ployment” and therefore did not violate Section 8(a)(3) of the Act. The Respondent never made any statement associating the delay in granting the transfer request with union activities or STARBUCKS CORP. 19 other protected activities. It also engaged in no conduct which would lead employees to believe that Respondent did not grant the transfer more quickly because of union activities or other protected activities. Therefore, I conclude that the delay did not violate Section 8(a)(1) of the Act. Accordingly, for the same reasons discussed above in con- nection with complaint paragraph 5(a), I conclude that a Wright Line analysis is not necessary. However, in case the Board should disagree, I have performed the following analysis. As discussed above, under Wright Line, the General Counsel must make an initial showing involving 3 elements. First, the General Counsel must establish that there was union activity. In addition to the union activity discussed above in the analysis of complaint paragraph 5(a), Estrada also participated in the brief strike on May 14, 2022. Her name also appears on the letter explaining the reasons for that strike. Therefore, the General Counsel has satisfied the first Wright Line requirement. The May 14, 2022 letter on which Estrada’s name appears, was sent to management, and the picketing itself was in the open, for all to see. Additionally, I conclude that the General Counsel has proven that the Respondent knew about the protected activity, thereby satisfying the second Wright Line element. To carry her initial burden under Wright Line, the General Counsel also must establish both the existence of animus and some connection between that animus and the adverse em- ployment action. As noted above in connection with complaint paragraph 5(a), the complaint paragraph does not allege that any statement violates Section 8(a)(1) of the Act and the record does not otherwise establish that any manager or supervisor made any statement suggesting antiunion animus. The General Counsel does argue that some statements at- tributed to the Respondent’s supervisors and managers consti- tute veiled references to union activities. However, as dis- cussed above, the record reveals innocent explanations, unrelat- ed to union or other protected activity, for statements which might appear suspicious, such as that Estrada presented a “unique situation” requiring special attention or that she had disrespected supervisors. It is true that the meaning of one statement remains unex- plained. That is Griepentrog’s comment that Estrada did not leave a “good mark on the district when it comes to mission and values.” Although this remark might possibly refer to union activities, there is an obvious and much more likely reason for it: Estrada, while remaining on the employee roster of the Peoria store, stopped working and filed for unemployment benefits. Such an action, unauthorized by management, clearly is not consistent with the Respondent’s mission and values. In her August 13, 2022 email rejecting Estrada’s transfer re- quest, Store Manager Ward stated to Store Manager Novak that “[o]ur staff. . .is abundantly filled with college students and to maintain a fair and diverse balance of partners we cannot ac- cept any more students at this time.” The General Counsel’s brief argues that not long after this email, Ward did approve transfer requests from college students: Ward’s concocted reason for denying Estrada’s transfer, is al- so undermined by the fact that the evidence shows a college student named Kris Pacheco transferred to the Peoria store on August 22. R11. The evidence also shows Lia Sommer, an- other college student, transferred to the Peoria Campustown store on September 5. Tr. 442. However, the fact that Ward may have allowed some college students to transfer after denying Estrada’s transfer request does not persuade me that Ward was motivated by antiunion animus. Ward made the statement that “we cannot accept any more students” in an internal communication to another man- ager, not as a defense to an unfair labor practice charge. The record also suggests a personality conflict existed between Ward and Estrada which Ward might not wish to discuss with another store manager. Moreover, after the Respondent discharged Ward for an un- related reason, Respondent acted quickly to facilitate Estrada’s transfer to the Campus Town store. District Manager Collins had difficulty contacting her because she did not have a phone, but he kept trying and eventually succeeded. The efforts of District Managers Collins and Griepentrog to help Estrada get the transfer she requested do not suggest that the Respondent harbored animus towards her. It also is instruc- tive to consider how management treated her at other times. Many different facts, including Estrada’s time on disability leave, the attendance problems she admitted on cross- examination, and her quite unusual action of filing for unem- ployment benefits while still employed, demonstrate that she was having a rough year. The Respondent displayed remarka- ble patience. For example, when Estrada filed for unemployment benefits and was absent without authorization, management could have considered those actions clear evidence that she had quit. If the Respondent had intended to cull union supporters, Estrada’s action provided a plausible, nondiscriminatory reason to sepa- rate her from the company. But it didn’t. Instead, the Respondent gave Estrada the choice of returning to the Peoria store and working there, or of finding a different store to which she could transfer. And it gave her a reasonable time to do so. When the North Chicago store’s Assistant Manager, Natalie Brooker, notified District Manager Collins that the store would accept Estrada’s transfer request, Collins replied: “Great news!” Additionally, after Estrada transferred to the North Chicago store and did good work there, management recognized it. Assistant Store Manager Brooker wrote: “Abby has been a wonderful addition to our team! Always coming in with a posi- tive attitude and really brings the Starbucks experience to life not only for our customers, but our partners as well.” In sum, I do not find that the Respondent harbored animus towards Estrada because of her protected activities. Were I to perform a Wright Line analysis, I would conclude that the Gen- eral Counsel did not prove animus and therefore did not satisfy the third necessary element. Therefore, I would further con- clude that the General Counsel had not carried the govern- ment’s initial burden. However, in view of my conclusion that there was no adverse employment action, a Wright Line analy- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 sis is not necessary. For all the reasons stated above, I recommend that the Board dismiss the complaint in its entirety. MATTERS NOT REACHED The General Counsel’s brief argues that certain Board prece- dents be overruled. Obviously, an administrative law judge follows extant Board precedent and has no authority to overrule it. Therefore, were I to reach this issue, I would reject the Gen- eral Counsel’s arguments. However, my conclusion that the complaint should be dismissed makes consideration of these arguments unnecessary. Similarly, my conclusion that the Respondent did not violate the Act as alleged makes it unnecessary to consider the affirma- tive defenses which the Respondent raised in its answer to the complaint. 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 Union, Chicago & Midwest Regional Joint Board, Workers United/SEIU, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent did not violate the Act in any manner al- leged in the complaint. On these findings of fact and conclusions of law and on the entire record in this case, I issue the following recommended28 ORDER The complaint is dismissed. Dated Washington, D.C. September 7, 2023 28 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these findings, conclusions, and rec- ommended 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.