Starbucks Corporation

373 NLRB No. 90 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/Service Em- ployees International Union. Case 18–CA– 299560 August 28, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On April 6, 2023, Administrative Law Judge Andrew S. Gollin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Coun- sel filed an answering brief. The General Counsel also filed exceptions with supporting argument, and the Re- spondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions3 and to adopt the recommended Order as modified and set forth in full below.4 1. We affirm the judge’s conclusion that the Respond- ent, through Store Manager Tim Renna, coercively inter- rogated employee Phoebe Dehring in violation of Section 8(a)(1) when he asked her by text message whether she was planning to file an election petition, why she had 1 The Respondent asserts that Members Prouty and Wilcox should recuse themselves based on their “past, present and perceived relation- ships with the Service Employees International Union (‘SEIU’), SEIU Local Unions, and their affiliates, including Workers United.” Member Prouty has determined, in consultation with the Board’s Designated Agency Ethics Official, that there is no basis to recuse himself from the adjudication of this case. Member Wilcox is not on the panel and took no part in the consideration of this case, rendering moot the Respondent’s assertion that she should be recused. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 In the absence of exceptions, we adopt the judge’s dismissal of the allegation that the Respondent violated Sec. 8(a)(1) by telling employee Neomy Johnson that the Respondent would be required to provide the Union access to all documents employees had submitted to the Respond- ent. 4 We have amended the remedy and modified the judge’s recom- mended Order in accordance with our decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022), and to conform to the Board’s standard re- medial language. We shall substitute a new notice to conform to the Order as modified. Member Kaplan acknowledges and applies Paragon Systems as Board precedent, although he expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). hidden the employees’ unionization efforts from him, what she hoped to gain through unionization, how many employees were involved in the organizing effort, and what misinformation about unions she thought the Re- spondent had previously spread. In finding that question- ing coercive under the Board’s totality-of-the-circum- stances standard,5 the judge did not specifically discuss the first Bourne factor (background) or rely on threats made by Renna to Dehring during their text conversation and by email the next day.6 We find that those threats are relevant context that contributed to the coerciveness of Renna’s questions.7 Cf. Westwood Health Care Center, 330 NLRB 935, 940 (2000) (“[A] question that might seem innocuous in its immediate context may, in the light of later events, acquire a more ominous tone.”). Additionally, we reject the Respondent’s assertion that questioning by text mes- sage is “inherently less coercive” than other modes of in- terrogation. The Respondent claims messages sent by text blunt any potential coercive impact because texting af- fords an employee the opportunity to craft a more thought- ful response or to choose to simply ignore the employer’s text question. This argument is unpersuasive both as a general matter and because the record here demonstrates that Renna texted Dehring about work-related matters (and only work-related matters, as far as the record shows). As such, Dehring needed to check text messages from and exchange text messages with her manager and would not reasonably have felt free to simply ignore Renna’s text message about union organizing at their store. 5 See Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In analyzing alleged interrogations, some factors which may be considered are: (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation. Id. (citing Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964)). 6 Specifically, the judge found, and we agree, that the Respondent violated Sec. 8(a)(1) when Renna, in questioning Dehring by text, threat- ened Dehring by stating that she and other employees had “broken” Renna’s “trust” by hiding their unionization efforts from him; and when Renna threatened Dehring the next day by stating that a letter expressing employees’ reasons for unionizing was “unfortunately filled with misin- formation” and that “I hope you’re not spreading some of this to [your coworkers] because there is some inaccuracies that need[] to be ad- dressed in order for this to be true.” Member Kaplan finds it unnecessary to pass on whether the Respond- ent violated Sec. 8(a)(1) when Renna texted Dehring that she had “bro- ken” his “trust.” He agrees that the Respondent made other 8(a)(1) threats, so this additional finding would not materially affect the remedy. Additionally, based on the circumstances of this case, Member Kaplan would use the Board’s standard general cease-and-desist language in the Order for the unlawful threats rather than specifying each threat individ- ually. 7 The relevant context includes Renna’s statement that he did not “wish any ill will on anyone,” which we have fully considered. Contrary to the Respondent’s assertion, however, that statement does not render Renna’s questioning noncoercive, nor his threat nonthreatening, in light of the other circumstances discussed herein. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Further, we find no merit in the Respondent’s argument that Renna’s question to Dehring about the number of em- ployees who supported the Union was lawful under John W. Hancock, Jr., Inc., 337 NLRB 1223 (2002), enfd. 73 Fed.Appx. 617 (4th Cir. 2003). That case is distinguisha- ble. In John W. Hancock, a supervisor casually asked an employee a general question about the number of employ- ees who attended a union meeting during an organizing drive at a large manufacturing complex employing some 235 employees. Id. at 1223. In finding that the nature of the information sought weighed against a finding of coer- cion, the Board distinguished cases involving questions about the number of union supporters in specific depart- ments or lines, reasoning that while such inquiries “might reasonably be viewed as preparatory to some sort of retal- iatory action,” the question in John W. Hancock concerned “the overall level of union interest in the entire work force as a whole.” Id. at 1224–1225 fn. 9 (distinguishing Cum- berland Farms, Inc., 307 NLRB 1479 (1992), enfd. 984 F.2d 556 (1st Cir. 1993), and Champion Laboratories, 316 NLRB 1133 (1995), enf. denied in relevant part 99 F.3d 223 (7th Cir. 1996)). The facility at issue here has approx- imately 20 employees. As such, it is more analogous to a line or division than it is to a factory complex with hun- dreds of employees. Further, in John W. Hancock, unlike here, the employer questioned the employee in a context free of related unfair labor practices. 337 NLRB at 1224. In any event, we would find that Renna unlawfully inter- rogated Dehring even without considering his question about how many other employees supported the unioniza- tion effort. 2. We find that the judge did not abuse his discretion by admitting General Counsel Exhibits 4 and 5,8 which document a portion of a partnership-development meeting between Renna and employee Neomy Johnson, during which Renna made unlawful threats.9 Johnson testified that she recorded the entire meeting on her phone and later attempted to email a copy of the recording to Union Rep- resentative Esau Chavez. When the file proved too large to send as an email attachment, Johnson “cropped” the re- cording to only the first 5 minutes—which was the only portion of the meeting where unions were discussed. Johnson then emailed the cropped recording to Chavez while retaining the complete recording on her phone. At some point, however, Johnson accidentally damaged her phone and lost access to the complete recording. As such, the recording admitted into evidence as General Counsel 8 GC Exh. 4 is a recording of the portion of the meeting where Renna made the alleged threats, and GC Exh. 5 is a transcript of the recording. 9 Member Kaplan finds that the judge’s reasoning for admitting GC Exhs. 4 and 5 was sound. For that reason alone, he finds that the judge did not abuse his discretion in admitting those exhibits. 10 See Tr. 81 (testimony of Johnson that “I only had access to the copy that I emailed [Chavez].”). This testimony supports a conclusion that Johnson did not submit to the Region any separate audio file that might have been in someone else’s possession, altered, and returned to her. Exhibit 4 is the cropped version that Johnson had emailed to Chavez. The Respondent offers several arguments against the admission of Exhibits 4 and 5, none of which is persua- sive. First, the Respondent excepts on the grounds that the judge erred by admitting spoliated evidence. The judge specifically found that the recording was not spoliated, however, and the Respondent makes no effort to explain how he erred in doing so. Rather, the entirety of the Re- spondent’s argument is to merely refer to the exhibits as “spoliated.” Because the Respondent has not presented any argument in support of its exception, we find, in ac- cordance with Section 102.46(a)(1)(ii) of the Board’s Rules and Regulations, that it should be disregarded. See, e.g., Natural Life, Inc. d/b/a Heart & Weight Institute, 366 NLRB No. 53, slip op. at 1 fn. 3 (2018), enfd. 827 Fed.Appx. 724 (9th Cir. 2020); Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). Second, on exception, the Respondent argues that John- son’s testimony was inadequate to authenticate the record- ing based on speculation that Chavez might have pos- sessed (and thus had an opportunity to alter) the file before Johnson submitted it to the Region. As the General Coun- sel notes in her answering brief, it appears more likely that Johnson retrieved the file introduced as General Counsel Exhibit 4 from her “sent email” folder.10 In any event, the Respondent’s contemporaneous objections to the intro- duction of the recording were inadequate to put the judge and the General Counsel on notice that the basis for the objection was that the recording had been in Chavez’ pos- session and might have been altered by him.11 Cf. United States v. Walters, 904 F.2d 765, 769 (1st Cir. 1990) (“The reason for [the specificity] requirement is to alert the trial court and the other party to the grounds of the objection so that it may be addressed or cured.”). Lastly, the Respondent appears to assert that the incom- pleteness of the recording renders its admission unfair. As the opponent of admission, the Respondent “has the bur- den of demonstrating ‘a genuine issue . . . as to the fairness of substituting the duplicate for the original.’” United States v. Chang An-Lo, 851 F.2d 547, 557 (2d Cir. 1988) (quoting United States v. Georgalis, 631 F.2d 1199, 1205 (5th Cir. 1980)); accord Superior Emerald Park Landfill, LLC, 340 NLRB 449, 452 (2003) (admitting incomplete recording and transcript of meeting where “no evidence was presented that the transcribed portions of the meeting left out any conversations that would have constituted [an] 11 Although the Respondent stated that there was “no chain of cus- tody” for GC Exh. 4 during its opening statement, it did not raise this objection after the General Counsel laid the foundation for the exhibit’s introduction. See Fed.R.Evid. 103(a)(1) (“A party may claim error in a ruling to admit . . . evidence only if . . . a party . . . timely objects or moves to strike; and states the specific ground, unless it was apparent from the context.”). Further, its failure to do so reasonably led the judge and the General Counsel to believe that the Respondent was satisfied that the General Counsel had adequately established the chain of custody. STARBUCKS CORP. 3 affirmative defense . . . [or] that any missing portion of the meeting involved statements that would materially affect the result in th[e] case”); see also Bell Energy Manage- ment Corp., 291 NLRB 168, 173 (1988) (applying Fed.R.Evid. 1003)12; Illinois Bell Telephone Co., 275 NLRB 148, 152–153 (1985) (applying Fed.R.Evid. 1004)13, enfd. sub nom. Communication Workers Local 5008 v. NLRB, 784 F.2d 847 (7th Cir. 1986). The Re- spondent has not carried this burden, however, as its only claim of prejudice is that the exhibits fail to reflect that Renna praised Johnson’s job performance and offered to help her further develop her skills. When analyzing the merits of the complaint allegations, we have fully consid- ered the surrounding circumstances, including Johnson’s and Renna’s undisputed, mutually corroborative testi- mony that Renna praised Johnson’s work during the later portion of the meeting not captured in General Counsel’s Exhibit 4. Consequently, we find that the Respondent has not established that the judge abused his discretion by ad- mitting the partial audio recording and transcript thereof into evidence. 3. We affirm the judge’s finding that the Respondent, through Renna, violated Section 8(a)(1) by telling Johnson that unionization would mean that nonunion stores would no longer be able to “borrow” employees from union stores, and vice versa.14 As the judge found, the ability to borrow employees from and lend them to another store was a clear benefit to employees, and Renna’s statement to Johnson threatened a loss of this benefit if the employ- ees unionized. The Respondent argues that Renna told Johnson that the end to borrowing would be the result of signing a collective-bargaining agreement, rather than se- lecting the Union, as the judge found. Even if the Re- spondent were correct, however, Renna’s statement would still be unlawful. While an employer may “make a pre- diction as to the precise effects he believes unionization will have on his company,” such predictions “must be carefully phrased on the basis of objective fact to convey [the] employer’s belief as to demonstrably probable con- sequences beyond his control.” NLRB v. Gissel Packing Co., 395 U.S. 575, 615 (1969). Here, however, Renna’s 12 Fed.R.Evid. 1003 provides: “A duplicate is admissible to the same extent as the original unless a genuine question is raised about the origi- nal’s authenticity or the circumstances make it unfair to admit the dupli- cate.” 13 Fed.R.Evid. 1004 provides, in relevant part: “An original is not re- quired and other evidence of the content of a writing, recording, or pho- tograph is admissible if . . . all the originals are lost or destroyed, and not by the proponent acting in bad faith.”). 14 Member Kaplan finds it unnecessary to pass on whether the Re- spondent violated Sec. 8(a)(1) when Renna told Johnson that unioniza- tion would mean that nonunion stores and union stores would no longer be able to “borrow” employees from one another. He agrees that the Respondent made other 8(a)(1) threats, so this additional finding would not materially affect the remedy. Nevertheless, Member Kaplan ob- serves that, during this conversation, Renna stated both that he was not certain “what the contract looks like” and that any provisions about bor- rowing between stores were in a “hypothetical state right now.” In a statement was not phrased as a possible outcome of the negotiating process, but rather as an inevitability. To be lawful under Gissel, then, it would need to be accompa- nied by objective evidence showing that the Union would refuse to sign any contract that permitted borrowing be- tween union and nonunion stores. Cf. Iplli, Inc., 321 NLRB 463, 468 (1996) (prediction that labor costs would double, leading to plant closure, unlawful absent evidence that union “would either demand or be able to obtain through negotiations, a contract which would double (or even substantially increase), [the employer]’s labor costs”). The Respondent does not claim that such objec- tive evidence even exists, let alone that it contemporane- ously communicated it to Johnson. See, e.g., Neises Con- struction Corp., 365 NLRB 1269, 1272 fn. 16 (2017) (pre- diction of layoffs or closure unlawful where employer “did not provide any substantive support for his predic- tions” to employees); DTR Industries, 350 NLRB 1132, 1133 (2007) (finding violation where “the statements [pre- dicting job losses] provided no objectively-based ra- tionale”), enfd. 297 Fed.Appx. 487 (6th Cir. 2008).15 4. Finally, we affirm the judge’s conclusion that, based on current Board law, the Respondent, through Renna, did not violate Section 8(a)(1) by holding a mandatory cap- tive-audience meeting with Johnson during worktime. On exception, the General Counsel requests that the Board overrule Babcock & Wilcox Co., 77 NLRB 577, 578 (1948) (holding such meetings to be lawful). We decline to do so in this case.16 AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Specifically, we amend the judge’s remedy in the following respect. We shall order the Respondent to mail a copy of the notice to the last known addresses of Neomy Johnson and Phoebe Dehring, individuals whom the Respondent unlawfully threatened and/or interrogated. We find this remedy to be appropriate because the record shows that Johnson and Dehring are no longer employed by the Respondent, and they would future appropriate case, Member Kaplan would be open to reconsidering the effects of such “disclaimers” on coerciveness. 15 We also affirm, for the reasons given by the judge his finding that the Respondent violated Sec. 8(a)(1) when Renna threatened Johnson with a loss of pay and benefits by telling her that bargaining would “start from scratch.” Member Kaplan observes that the Board has often effectively treated phrases such as “start from scratch” as per se violations of the Act despite the fact that they should be evaluated, like other alleged threats, based on the totality of the circumstances. Although Member Kaplan joins his colleagues in finding the violation here under extant precedent, he would be open to reconsidering that precedent in a future appropriate case. 16 Chairman McFerran and Member Prouty are open to reconsidering Babcock & Wilcox, and the legality of mandatory captive-audience meet- ings, in a future appropriate case. Member Kaplan would continue to adhere to Babcock & Wilcox. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 therefore be unable to view a notice posted at the Re- spondent’s Lyndale Ave South store. See, e.g., Firefight- ers, 297 NLRB 865, 874 (1990) (citing Transportation Management Corp., 257 NLRB 760, 771 (1981), enfd. 686 F.2d 63 (1st Cir. 1982)); see also Bill’s Electric, Inc., 350 NLRB 292, 297 (2007) (“‘The Board provides for the mailing of individual notices when posting will not ade- quately inform the employees of the violations that have occurred and their rights under the Act.’”) (quoting Parkview Hospital, Inc., 343 NLRB 76, 76 fn. 3 (2004)).17 ORDER The National Labor Relations Board orders that the Re- spondent, Starbucks Corporation, Minneapolis, Minne- sota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their un- ion activities or support. (b) Threatening employees by telling them that their organizing activities on behalf of Chicago & Midwest Re- gional Joint Board, Workers United/Service Employees International Union (Union) caused a lack of trust or in- structing them to refrain from sharing the concerns that led them to support the Union. (c) Threatening employees with a loss of pay and ben- efits if they select the Union as their bargaining repre- sentative, including by telling employees that negotiations would begin from scratch if they unionize. (d) Threatening employees with reduced hours and more onerous working conditions if they select the Union as their bargaining representative, including by telling em- ployees that borrowing between union and nonunion stores would end if they unionize. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its 5351 Lyndale Ave South, Minneapolis, Minnesota store, copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent’s authorized representative, shall be 17 Member Prouty would also order notice mailing to all other em- ployees who worked at the Respondent’s Lyndale Ave South store while the unfair labor practices were committed. He finds this remedy to be appropriate because the record reveals that the store, which only employs approximately 15 to 20 employees, participates in “borrowing,” meaning that Lyndale Ave South employees may work shifts at other stores and vice versa. As such, there may be employees who were working at the store during the period of the violations but would not be able to view a notice posted at the Lyndale Ave South store as it is not their home store, or they are working elsewhere during the notice posting period. 18 If the store involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the store involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the posted by the Respondent and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an in- tranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the store involved in these proceedings, the Respondent shall dupli- cate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at that store at any time since March 28, 2022. (b) Within 5 days of posting the notice, mail signed copies of the notice to the last known addresses of Neomy Johnson and Phoebe Dehring. (c) Within 21 days after service by the Region, file with the Regional Director for Region 18 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. August 28, 2024 ______________________________________ Lauren McFerran Member ______________________________________ Marvin E. Kaplan, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD notice must be posted within 14 days after the store reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” STARBUCKS CORP. 5 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Fed- eral labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT coercively question you about your union activities or support. WE WILL NOT threaten you by telling you that your or- ganizing activities on behalf of Chicago & Midwest Re- gional Joint Board, Workers United/Service Employees International Union (Union) caused a lack of trust or in- structing you to refrain from sharing the concerns that led you to support the Union. WE WILL NOT threaten you with a loss of pay and bene- fits if you select the Union as your bargaining representa- tive, including by telling you that negotiations would begin from scratch if you unionize. WE WILL NOT threaten you with reduced hours and more onerous working conditions if you select the Union as your bargaining representative, including by telling you that borrowing between union and nonunion stores would end if you unionize. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. STARBUCKS CORPORATION The Board’s decision can be found at http://www.nlrb.gov/case/18-CA-299560 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. 1 Although I have included several citations to the record to highlight specific testimony or exhibits, my findings and conclusions are not Kaitlin Bohaty, Esq., for the General Counsel. Marko J. Mrkonich, Jacob Multer, and Laura Bernstein, Esqs., for the Respondent. Hannah Fogarty, for the Charging Party Union. DECISION INTRODUCTION1 ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. This hear- ing was held on March 9, 2023, in Minneapolis, Minnesota, over allegations that Starbucks Corporation (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (Act) in re- sponse to a union organizing effort at its 5351 Lyndale Ave South, Minneapolis, Minnesota store. The General Counsel al- leges that: (1) on about March 28, 2022, Store Manager Tim Renna, by text, interrogated employees about their organizing activity and threatened employees that their activity caused a loss of trust; (2) on about March 29, 2022, Renna, by email, threat- ened employees not to spread concerns raised in a letter to Pres- ident and CEO Howard Schultz with fellow employees because it allegedly contained inaccuracies; and (3) on about April 14, 2022, Renna, in a one-on-one meeting with an employee, threat- ened that if employees selected a union, then: bargaining would start from scratch or zero, union employees would not be able to work at non-union stores and non-union employees would not be able to work at union stores, and Respondent would be required to give the union access to all documents submitted so far. The General Counsel also alleges that, in the April 14 meeting, Renna forced the employee to convene on paid time to listen to Re- spondent’s position on union activity, resulting in a mandatory captive audience meeting. Respondent denies that it violated the Act. Based upon the record, the parties’ arguments, and the appli- cable law, I find Respondent committed all but the last two al- leged violations. STATEMENT OF THE CASE On March 30, 2022, the Chicago & Midwest Regional Joint Board, Workers United / Service Employees International Union (the Union) filed a petition to represent employees at the Lyndale Avenue store. Pursuant to a Stipulated Election Agreement, a mail-ballot election was conducted among all full-time and reg- ular part-time baristas and shift supervisors employed at the Lyndale Avenue store, excluding store managers, office cleri- cals, professional employees, guards, and supervisors as defined by the Act. The tally of ballots shows that of the approximately 19 eligible voters, 5 votes were cast for and 6 votes were cast against the Union, with 0 challenged ballots. On June 20, 2022, the Petitioner filed timely objections to conduct affecting the re- sults of the election. On July 18, 2022, the Union filed the charge in the instant case. The Union later amended that charge on November 1, 2022. On December 9, 2022, the General Counsel, through the Regional Director for Region 18, issued a complaint and notice of hearing. Six days later, the Regional Director issued an Order Directing Hearing on Objections, Order consolidating cases and notice of hearing. On December 16, 2022, Respondent filed its answer to the complaint. On January 9, 2023, Respondent filed limited to those portions and instead are based on my review and consid- eration of the entire record. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 its first amended answer to the complaint.2 On January 30, 2023, the Regional Director issued an Order rescheduling the hearing. On February 16, 2023, the Regional Director issued an Order severing cases, Order approving with- drawal of Objections, and Certification of Results of Election, leaving only the complaint allegations for hearing. At the hearing, all parties were afforded the right to call and examine witnesses, present any relevant documentary evidence, and argue their respective legal positions. The General Counsel and Respondent filed posthearing briefs, which I have carefully considered. On the entire record, including my observation of the wit- nesses, I make the following FINDINGS OF FACT3 I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent, a corporation with headquarters in Seattle, Wash- ington, has been engaged in the retail operation of restau- rants/stores throughout the United States, including the Lyndale Avenue store. In conducting its operations during the 12-month period ending April 30, 2022, Respondent derived gross reve- nues in excess of $500,000. During the 12-month period ending April 30, 2022, Respondent, in conducting its operations, pur- chased and received at its Minneapolis, Minnesota facility goods and services valued in excess of $5000 directly from points out- side the State of Minnesota. Respondent admits, and I find, that it has been an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. It further admits, and I find, that at all material times, the Union has been a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Tim Renna has been the Store Manager and highest-ranking official at the Lyndale Avenue store for the last 9 years. Under Renna, there are approximately 4–6 shift supervisors and 10–15 baristas. (Tr. 29; 147.) All employees at the store are referred to as “partners.” As store manager, Renna is responsible for hiring, training, scheduling, staffing, conducting periodic performance reviews, and issuing discipline. Respondent allows the “borrowing” of employees between its stores. Borrowing, which occurred regularly at the Lyndale Av- enue store, allows employees from one store to volunteer to pick up additional shifts at another store dealing with scheduling or staffing issues. (Tr. 40–41; 111–112.) B. Union Organizing Campaign Begins Phoebe Dehring and Neomy Johnson worked as shift 2 Respondent raises various affirmative defenses, including alleged violations of its rights under the U.S. Constitution. The proponent of an affirmative defense has the burden of establishing it. At the hearing and in its posthearing brief, Respondent failed to present evidence or argu- ment regarding these defenses, except its arguments under the First Amendment and Sec. 8(c) of the Act. Accordingly, Respondent failed to meet its burden regarding those defenses. 3 The Findings of Fact are a compilation of the stipulated facts, cred- ible testimony, and other evidence, as well as logical inferences drawn therefrom. To the extent testimony contradicts with the findings herein, such testimony has been discredited, either as in conflict with credited evidence or because it was incredible and unworthy of belief. In as- sessing credibility, I primarily relied upon witness demeanor. I also con- sidered the context of the testimony, the quality of their recollection, supervisors under Renna at the Lyndale Avenue store. Dehring began in August 2016 as a barista and was promoted to a shift supervisor in 2019. She resigned in August 2022. (Tr. 27–28.) Johnson began in about March 2017 as a barista and was pro- moted to shift supervisor in about 2018. She resigned in October 2022. (Tr. 71–72.) In February 2022,4 Dehring contacted the Union about starting an organizing campaign at the store. She discussed with Johnson and other employees about what they needed to do. They com- municated primarily by text, outside of work, or in person at the store when Renna was not present. One employee they spoke to was Sarah Andre, another shift supervisor. In their discussions, they all agreed not to alert Renna or anyone in management about their organizing efforts until after they filed a petition for an election and mailed their letter to Respondent’s president and CEO Howard Schultz with their reasons for organizing. (Tr. 68.) However, on about March 28, Andre notified Renna that Dehring planned to file a petition the following day. (Tr. 56–58; 153). At the time, Dehring was not aware Andre had notified Renna about their plans. (Tr. 69.) C. March 28 Text Messages Between Dehring and Renna As a shift supervisor, Dehring regularly communicated with Renna about work-related matters, such as scheduling, staffing, and maintenance issues. They did this by phone, text, or in per- son. Prior to March 28, Dehring never discussed with Renna her views on unions or her plans to organize. (Tr. 35–737.) On March 28, after Andre notified Renna about Dehring’s plans, he initiated a text exchange with Dehring. (GC Exh. 2.) At 1:58 p.m., Renna began by asking Dehring, “Hey, you’re fil- ing to form a union tomorrow?” At 2:02 p.m., Dehring replied, “Yep!” At 2:03 p.m., Renna responded, “Okay . . . why did you hide it from me? Why didn’t you come talk to me? I have been pretty open about like, hey come talk with me, what is it you’re not getting from me . . . so I’m just curious: what are you hoping to get?” At 2:06 p.m., Dehring replied: I didn’t see a point [to be honest]. It’s nothing personal Tim, I just looked into the union and researched it myself and it seemed like the best plan. I’ve already seen what Buffalo and what the over one hundred other stores are negotiating for and I’d like similar things for our store. Things like guaranteed tips, more protected sick hours, etc. Things you unfortunately can’t give us. At 2:08 p.m., Renna responded, “Fair enough. How many people are involved? I don’t need names, I’m just curious how many people feel the same way.” At the same time, Dehring texted: testimonial consistency, the presence or absence of corroboration, the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the rec- ord as a whole. See Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto- motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all- or-nothing propositions. Indeed, nothing is more common in judicial de- cisions than to believe some, but not all, of a witness’s testimony. Daikichi Sushi, supra at 622; Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008) (citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), rev’d. on other grounds 340 U.S. 474 (1951)). 4 Hereinafter, all dates refer to 2022, unless otherwise stated. STARBUCKS CORP. 7 The union doesn’t prevent you from doing your job in any way either. All it does is add another person to represent us and we felt it was best for us and the store. It isn’t a bad thing and I honestly believe it would help everyone, including you. I un- derstand the pressure you must be under from upper manage- ment and with the union and our contracts it could help with that. The majority of the store is involved[.] At 2:10 p.m., Renna responded, “It just makes me sad that, despite the flexibility I’ve provided you and the team, the open door to come to me that the store would hide it from me. My trust is broken.” At 2:13 p.m., Dehring replied: I’m sorry it feels that way! To us, it felt like that meeting with [District Manager Jaycee Grainer] was a union-busting meet- ing and so we felt it was best not to tell you. Intentional or not, there was some misinformation in that meeting about unions that we debunked. I know those meetings were being done all over the US and it wasn’t something specific to our store, but I also understood the managers were being pressured to discour- age unions. Like I said, it’s nothing personal. We just all want to do what’s best for us—the store. Dehring then went on to discuss certain “misinformation” she believed Renna and Grainer had given in the earlier meeting about unions. Renna responded by denying he gave any misin- formation. He later texted Dehring, “Well, regardless, things will change. I don’t wish any ill will on anyone regarding it. We will move forward but I honestly don’t think you’re going to get what you think.” (GC Exh. 2.) As Dehring was texting with Renna, she was forwarding their texts to Johnson, a union representative (Esau Chavez), and other partners from the store. D. March 29 Email Exchange Between Dehring and Renna On about March 29, four employees, including Dehring and Johnson, prepared, signed, and sent a letter to Respondent’s pres- ident and CEO, Howard Schultz, announcing the store employ- ees were filing a petition that day to be represented by Starbucks Workers United. The letter also explained reasons why the em- ployees were unionizing, including issues over tipping, de- creased hours, scheduling, training, and sick leave. That same day, Dehring emailed Renna the letter. Renna responded by email, stating: Thank you Phoebe. I’ve read through the letter and understand many of your concerns. However, it is filled with misinfor- mation which is why I have always said to come to me. I hope you’re not spreading some of this to partners because there is [sic] some inaccuracies that needs [sic]to be addressed in order for this to be true. (GC Exh. 3.) There was no further communication between Renna and Dehring regarding the letter to Schultz. Renna never informed Dehring what alleged misinformation or inaccuracies he be- lieved the letter contained. (Tr. 69; 170.) E. April 14 PDC Meeting Between Renna and Johnson As stated, Renna conducts periodic performance reviews of 6 The transcript the General Counsel introduced was prepared by a court reporter. Both the recording and the transcript were shared with Respondent prior to the hearing. Respondent objected to the recording and the transcript for several reasons (discussed below). One of the rea- sons the Respondent objected to the transcript was it claimed it had errors all partners. These are one-on-one meetings which are referred to as Partner Development Conversations (PDC). PDCs typi- cally occur every 6 months, and last about 30 minutes to an hour each. They are scheduled weeks in advance and are held while employees are on the clock and being paid. They are usually held in the back room by Renna’s desk or out in the café area where the customers sit. When Johnson began with Respondent she was told that she was required to attend these PDCs as part of her employment. (Tr. 109.) Renna scheduled Johnson’s PDC for April 14. She decided to secretly record the meeting using the Recorder app on her cell- phone because she was concerned about possible retaliation for her role in the Union organizing effort and she wanted to have evidence if Renna said anything. (Tr. 79–80.) Although Johnson recorded the entire meeting, only about the first 5 or so minutes was preserved because she later damaged her phone, causing her to lose the full recording. The remainder of the meeting was spent discussing Johnson’s performance. The recording was in- troduced into evidence, along with a transcript (with revisions). Based upon my review of the recording, I find the following was said:6 RENNA: Alright, so let's get the union thing out of the way. So, I had a meeting on Tuesday with what I can and can’t say. JOHNSON: Um-hmm. RENNA: What I can and can’t share to employees. What I can share with you guys is facts, opinions, and any expe- riences that I have with unions. JOHNSON: Um-hmm. RENNA: And so, I want to make sure that this conver- sation is pretty much all fact-based, with a couple of differ- ent things, just to make sure that it is in line, and that you guys don’t feel I am pressuring you to do anything— JOHNSON: Okay. RENNA:—that you do don’t want to do. I, as Starbucks has said, I don’t want to piggyback off the rhetoric. I don’t believe that we need a union. JOHNSON: Um-hmm. RENNA: But, that’s me, personally. Starbucks aside, Starbucks messages and all other things aside, me, person- ally, I honestly don’t think I want things to—like, some- thing or someone to come in between the way we communi- cate. Because I want to be your partner. So— JOHNSON: Okay. RENNA: It’s my own opinion and belief—o even if you have signed an authorization card, you’re welcome—up to you. It’s a shadow vote. It’s a mail-in ballot, so, please vote. Please, vote with your heart for whatever you believe is right for you. You also, I mean, at the end of this—so, regardless of the vote, somebody is, you know, if the United Workers get voted in— JOHNSON: Um-hmm. RENNA: You know, the outcome is still un- known. JOHNSON: Yeah. and omissions. I held the record open to allow Respondent to submit a document identifying the alleged errors and omissions, which it did. I have listened to the recording and reviewed the transcript and Respond- ent’s proposed revisions in making my findings. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 RENNA: Make sure that we—everybody knows that. And, then throughout the process, whatever happens, I will always be your partner. JOHNSON: Okay. That’s good to know. RENNA: If it goes to a vote, and it gets voted in, we enter into a state called dynamic status quo. JOHNSON: Um-hmm. RENNA: It pretty much means that we are in a state of we’re just going to do our jobs until collective bargaining is worked out, so— JOHNSON: Okay. RENNA: Obviously, I don’t know anything about col- lective bargaining, because I am not a lawyer. I think our— know it. My understanding, what they told me—is that the average to negotiate a contract is about a year. JOHNSON: Yeah. RENNA: It said, the number they gave me was 410 days, which I thought was oddly specific. JOHNSON: That is oddly specific. RENNA: About a year. It is possible for the union to begin demanding member dues, but it’s highly likely they don’t. And, based on 2020 information, that’s $35.28 to $57.24 a month. I don’t, obviously, I have no idea what it’s going to be in 2023 when it all shakes out. And then, as part of the negotiations, both sides will start from scratch. So, benefits, wages, what your work will be, will actu- ally start from zero. Some people that I have talked to outside of our store said that they think that we’re adding on benefits and that’s a start from scratch process. Which is why –because it takes a while. And then, if there is a contract that goes into place, I cannot perform any – legally can’t perform any bar- gaining unit work. JOHNSON: Um-hmm. RENNA: So, if it’s, you know, could say that only shift supervisors and baristas can make drinks, ring on register, warm food, I legally can’t perform that work. JOHNSON: Okay. RENNA: The Union is legally entitled to all information you have provided to Starbucks so far. The Union dues if not already in place will become due, or start to become due—they are required to be paid to stay employed at the store/in the union. Anything Starbucks has announced after the contract is in place, such as new benefits or wage ad- justments, might not be entitled to. JOHNSON: Um-hmm. RENNA: —The contract can be renegotiated at that point— 6 Respondent objected to the introduction of the partial recording of this meeting and the transcript, arguing they were incomplete and spoli- ated. I overruled the objection after questioning Johnson and concluding the recording was an accurate and complete recordation of what was said during that portion of the meeting. (Tr. 100–102.) Johnson testified that after the meeting she attempted to email the en- tire recording to the Union, but the audio file was too large. She used the app to “crop” the recording. She explained cropping meant separating the first 5 or so minutes from the rest of the recording so she could send it to the Union. She testified she sent the first 5 or so minutes because it was the only part of the meeting where Renna discussed unions and what would happen if the Union was elected, and Johnson wanted to find out from the Union if that was permissible. She did not send the remainder of the recording because it only covered their discussion about Johnson’s performance, without any mention about unions. (Tr. 79–81; 97–98.) In cropping the recording, I credit Johnson that nothing was added, deleted, JOHNSON: Okay. RENNA: You can decertify the union after one year. There is a one-year bar on decertification process. JOHNSON: Um-hmm. RENNA: Decertified just means that you vote for no un- ion. JOHNSON: Okay. RENNA: Store partners, I’m sorry, store partners, not Starbucks nor I, would be responsible for the decertification. JOHNSON: Um-hmm. RENNA: So, if United Workers gets voted in, and this is a hypothetical, if you don’t like them – again, I don’t know anything about that. JOHNSON: Um-hmm. RENNA: There’s a one year period—to decertify that process. JOHNSON: I do have a question. RENNA: Yeah. JOHNSON: Does every barista, if the Union does go through, have to join the union? RENNA: Yes. JOHNSON: Okay. RENNA: Every partner would have to be represented by the union. JOHNSON: Okay. RENNA: There is a set contract that you will be held accountable to. Again, I don’t know what that contract looks like. If it has—hypothetical state right now. And then, non-union stores cannot borrow partners to union stores, vice-versa. JOHNSON: Okay. RENNA: Those are the facts that I was made aware of. (End of Recording). (GC Exhs. 4 and 5 (as modified).)6 The remainder of the meeting there was no further mention of unions or Renna’s earlier comments. ANALYSIS A. Overview The General Counsel alleges that Respondent, through Store Manager Tim Renna, made statements and engaged in conduct in response to the union organizing effort that violated Section 8(a)(1) of the Act. The statements and conduct were all or altered. (Tr. 79–82; 96–97; 101–103.) Johnson later damaged her phone and lost the entire recording. All that remains is this portion, which Johnson emailed to the Union and later to the Region. Johnson was unable to independently recall the specific details of the meeting without listening to the recording. But after listening to the re- cording, she confirmed its authenticity and that its contents were a com- plete and accurate recordation of what was said during that portion of the meeting. (Tr. 96–97.) The General Counsel later called Renna as a wit- ness and questioned him, quoting verbatim from the recording, about each of the specific statements alleged to constitute a threat. Renna did not deny making any of those statements. (Tr. 141–142.) Respondent also questioned Renna. In his testimony, Renna, who was present when the recording was played, did not dispute it was his voice on the record- ing or claim that it did not accurately reflect what was said. He also did not dispute Johnson’s testimony that there was no further discussion about unions during the unrecorded portion. STARBUCKS CORP. 9 documented in either texts, emails, or audio recordings.7 Section 8(a)(1) makes it an unfair labor practice for an em- ployer to interfere with, restrain, or coerce employees in the ex- ercise of their Section 7 rights. Section 7 of the Act provides that, “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Board employs a totality of circumstances standard to distinguish between employer state- ments that violate Section 8(a)(1) by explicitly or implicitly threatening employees with loss of benefits or other negative consequences because of their union activities and speech that is protected by Section 8(c) of the Act. Multi-Ad Services, 331 NLRB 1226, 1227–1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). In considering whether communications from an em- ployer to its employees violate the Act, the Board applies the ob- jective standard of whether the remark reasonably tends to inter- fere with the free exercise of employee rights. The Board does not consider either the motivation behind the remark or its actual effect. Scripps Memorial Hospital Encinitas, 347 NLRB 52, 52 (2006); American Tissue Corp., 336 NLRB 435, 441 (2001). Respondent denies the allegations and further argues as an af- firmative defense that any meeting it held with partners and any statement made by any of its supervisors and/or agents fall within the ambit of Section 8(c) of the Act and the First Amend- ment to the United States Constitution, and as such, neither con- stitutes nor can be used as evidence of an unfair labor practice. Section 8(c) states “[t]he expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or 7 Respondent argues in its posthearing brief that the partial recording, the transcript, and Johnson’s testimony about the meeting should be ex- cluded or not relied upon because of the incompleteness and spoliation. Respondent makes no mention of Renna’s responses to the General Counsel’s questions quoting the recording and him not denying he made the alleged unlawful threats on the recording. Spoliation is defined as "destruction or significant alteration of evidence or the failure to preserve property for another's use as evidence [,] in pending or reasonably fore- seeable litigation.” See Queen of the Velley Med. Ctr., 368 NLRB No. 116, slip op. at 41–42 (2019) (quoting Zubulake v. UBS Warburg, LLC, 220 FRD 212, 216 (S.D.N.Y. 2003). The party asserting spoliation has the burden of proving it. Id. (citing to Reinsdorf v. Sketchers USA, Inc., 296 FRD 604 296, 626 (2013). A finding of spoliation of evidence re- quires evidence that: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind" and (3) the evidence was "relevant" to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Id quoting Zubulake. Respondent presented no evidence or argument establishing these elements were met. As for Respondent’s (in)completeness argument, the Board rejected a similar claim in Kumho Tires Georgia, 370 NLRB No. 32, slip op. at 3 (2020), upholding the admission of a partial recording (and transcript) of a captive-audience meeting when no complete copy of the recording ex- isted. The Board noted: Rule 106 of the Federal Rules of Evidence provides that “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement— that in fairness ought to be considered at the same time.” Rule 106 “is concerned with misleading impressions created by tak- ing statements in documents or recordings out of context.” 1 force or promise of benefit.” In NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), the Supreme Court held that an employer may lawfully communicate to his employees “carefully phrased” predictions based on “objective fact[s]” as to “demonstrably probable consequences beyond his control” that he believes un- ionization will have on his company. However, the Court cau- tioned that if there is “any implication that an employer may or may not take action solely on his own initiative for reasons un- related to economic necessities and known only to him,” the statement is a threat of retaliation, which violates Section 8(a)(1). Id. The Court further emphasized that in determining whether a statement is a lawful prediction or an unlawful threat, the Board “must take into account the economic dependence of the employ- ees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disin- terested ear.” Id. at 617. B. Interrogation The General Counsel alleges that on March 28, Renna, by text, violated Section 8(a)(1) when he interrogated Dehring about her and other employees’ union activity. In determining whether the questioning of an employee about union or other protected activ- ity constitutes unlawful interrogation, the Board applies a total- ity-of-the-circumstances test. Rossmore House, 269 NLRB 1176, 1177 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This test considers various factors, including: the background, i.e., whether the employer has a his- tory of hostility toward or discrimination against union activity; the nature of the information sought; the identity of the interro- gator, i.e., his or her placement in the employer’s hierarchy; whether the interrogated employee was an open or active union Weinstein’s Federal Evidence § 106.02[1] (2d ed. 2013). The Rule, however, does not require evidence to be excluded simply because it is not available in its complete form. See United States v. Ferguson, 395 Fed.Appx. 77, 78–79 (4th Cir. 2010). (Id.) In reaching its decision, the Board further held the employer failed to explain how the missing part of the speech would demonstrate that the rest of the speech in which threats were made was lawful. Additionally, the employer failed to call the speaker or anyone else present to testify about the missing part. Here, in contrast, Respondent called Renna who continues to be the store manager, but it did not question him or elicit evi- dence indicating the unrecorded portion was relevant, that it somehow clarified, modified, or provided context to what was said during the recorded portion. Respondent’s failure to ques- tion Renna about these topics supports an inference that nothing more was said about unions. See Farm Fresh Co., Target One, LLC, 361 NLRB 848, 860 (2014) (noting an administrative law judge may draw an adverse inference from a party's failure to call or question a witness who may reasonably be assumed to be favorably disposed to a party, and who could reasonably be ex- pected to corroborate its version of events, particularly when the witness is the party's agent). As a result, I conclude the partial recording is the best evidence of what was said, and Respondent has not established how it was prejudiced by its admission into evidence. Contrary to Respondent’s assertions, I have set forth in my findings and considered in my analysis the entire record- ing, not selective “snippets” from it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 supporter at the time of the questioning; whether proper assur- ances were given concerning the questioning; the place and method of the interrogation; and the truthfulness of the interro- gated employee’s reply. Id. See also Westwood Health Care Center, 330 NLRB 935, 939 (2000). The Board’s test utilizes an objective standard and is not based on the intent of the questioner or reaction of the questioned employee. Multi-Ad Services, su- pra. See also Double D Construction Group, 339 NLRB 303, 303–304 (2003). The Board has recognized that unlawful inter- rogation may include written communications, including texts and email messages. See RHCG Safety Corp., 365 NLRB 852, 852–853 (2017). Under the totality of the circumstances, I find Renna’s texts to Dehring constitute unlawful interrogation. He is the highest- ranking official at the Lyndale Avenue store, and he initiated the text exchange to gather information about employees’ union ac- tivities, even though he already knew from Andre that employees intended to file a petition for an election the following day. He failed to convey any other, legitimate purpose for his inquiries; nor did he provide Dehring with any assurances against reprisals. See RHCG Safety Corp., supra at 852–853; Multi-Ad Services, Inc., supra at 1227–1228. Although Renna and Dehring texted daily about work-related matters, they had never discussed, and Dehring never volunteered, her views or plans about organizing. Dehring testified she and the others involved planned to keep their organizing activities a secret from management until they filed the petition and mailed their letter to President and CEO Schultz. As such, she was not an open Union supporter. But when Renna directly asked her whether she was “filing to form a union tomorrow” she answered her supervisor truthfully. Renna then probed further. He asked Dehring why she had hid her plans to organize and why she had not come to talk to him, suggesting that she had done something wrong. He also asked what she was not getting from him and what she was hoping to get by trying to form a union. The Board has held these types of questions further support finding unlawful interrogation. See Hall of Mississippi, Inc., 249 NLRB 775, 781 (1980) (question- ing employees what they hoped to gain by supporting union, without any other legitimate purpose, constituted unlawful inter- rogation). See also Mid-States Distribution Co., 276 NLRB 1511, 1554 (1985) (supervisor asking what benefits employee hoped to derive from unionizing was coercive interrogation par- ticularly when accompanied by threat); Corl Corp., 222 NLRB 243 (1976) (supervisor coercively interrogated employee by ask- ing how the union would benefit the employees), enfd. NLRB v. Corl Corp., 547 F.2d 1171(7th Cir. 1977). Dehring again re- sponded truthfully, explaining her reasons for wanting to organ- ize. In response, Renna texted, “Fair enough. How many people are involved? I don’t need names, I’m just curious how many people feel the same way.” Thus, even if Dehring was now an open union supporter that was sharing her views about the Un- ion, the focus of Renna’s inquiries changed from Dehring’s views to the views or support of others who had not identified themselves as union supporters or engaged in open union activi- ties. Again, Renna offered no legitimate purpose for soliciting this information. The Board has recognized questions about the number of employees who support the union to be coercive. See Cumberland Farms, Inc., 307 NLRB 1479 (1992) (supervisor engaged in unlawful interrogation by asking open union support- ers about views and activities of others). See also Sundance Construction Mgmt., 325 NLRB 1013 (1998) (supervisor’s ques- tion about how many of the employees supported the union constituted unlawful interrogation); Excel Corp., 324 NLRB 416, 418 (1997) (supervisor’s inquiry as to how many authoriza- tion cards the union had received constituted unlawful interroga- tion). Cf. John W. Hancock, Jr., Inc., 337 NLRB 1223 (2002) (supervisor asking employee how many men were at union meet- ing was not unlawful because it did not solicit which of the em- ployees supported the union). Respondent defends that Renna’s questioning was not unlaw- ful because Dehring was open and honest about her support for the Union and continued to respond to his questions rather than discontinue the exchange. When a supervisor out of the blue in- itiates an exchange with an employee about their protected or union activities and does not advise the employee they are not obligated to participate in the exchange or answer the questions, the employee’s continued participation cannot reasonably be viewed as voluntary and does not absolve the supervisor of wrongdoing. Additionally, whether or not Dehring felt coerced by the interrogation is irrelevant, as the Board has held that ac- tual coercion is not the test for whether an interrogation violates Section 8(a)(1). Oklahoma City Collection, 263 NLRB 79, 81 (1982), enfd. mem. 679 F.2d 900 (9th Cir. 1982). Accordingly, in considering the totality of the circumstances, I conclude Renna’s March 28 text inquiries of Dehring amounted to unlaw- ful interrogation, in violation of Section 8(a)(1) of the Act. C. Threats By Text and Email The General Counsel also alleges that Renna, in his March 28 text exchange with Dehring, violated Section 8(a)(1) by threat- ening employees that their union organizing activity caused a loss of trust. As previously stated, after Dehring confirmed in response to Renna’s inquiry that she planned to file to form a union the following day, he questioned why she had hid it from him and had not come to talk to him. Later, after Dehring pro- vided her reasons for organizing, and again stated her actions were not personal against him, Renna responded, “It just makes me sad that, despite the flexibility I’ve provided you and the team, the open door to come to me that the store would hide it from me. My trust is broken.” The Board consistently has held statements equating union activity with disloyalty or causing a loss of trust to violate the Act. See A.S.V. Inc. a/k/a Terex, 366 NLRB No. 162, slip op. at 26 (2018) (statements suggesting em- ployees have demonstrated disloyalty and caused loss of trust by pursuing union representation held unlawful). See also Corliss Resources, Inc., 362 NLRB 195, 195-196 (2015) (statement call- ing employees "backstabbers" for organizing held unlawful be- cause it was reasonably understood as characterizing union sup- porters as disloyal and impliedly threatening them with retalia- tion); Hialeah Hospital, 343 NLRB 391, 391 (2004) (expres- sions of disappointment for employees engaging in protected ac- tivity found unlawful); and Sea Breeze Health Care Center, 331 NLRB 1131, 1132 (2000) (manager unlawfully expressed disap- pointment and loss of confidence in employee for not telling him about her union sympathies). Cf. Oklahoma Installation Co., 309 NLRB 776, 776 (1994), enf. denied 27 F.3d 567 (6th Cir. 1994) (supervisors may express "purely personal opinions” that are critical of protected activity). Here, it is reasonable to conclude from Renna’s statements and the context in which they were made that any prior flexibility shown to employees could be lost because their secret organizing activities broke his trust, in vio- lation of Section 8(a)(1). The General Counsel also alleges that Renna, in his March 29 email to Dehring, violated Section 8(a)(1) by impliedly STARBUCKS CORP. 11 threatening her not to share the information contained in the em- ployees’ letter to Schultz because it contained misinformation and inaccuracies. As stated, the letter contained the employees’ reasons for organizing, noting the specific terms and conditions of employment they sought to address and improve through un- ion representation and collective bargaining. Renna responded by telling Dehring “I hope you’re not spreading some of this to partners because there is [sic] some inaccuracies that needs [sic] to be addressed in order for this to be true.” It is well established that employees petitioning their employer to improve their terms and conditions of employment are engaged in protected, con- certed activity. Even if what Dehring and the others said was somehow incorrect, the Board has held an employer may not at- tempt to “restrict employees in the exercise of their Section 7 rights by prohibiting statements which are merely false, as dis- tinguished from those which are maliciously so.” Simplex Wire & Cable Co., 313 NLRB 1311, 1315 (1994). See also Valley Hospital, 351 NLRB 1250, 1252 (2007), enfd. 358 Fed.Appx. 783 (9th Cir. 2009). “If employees lost their right to protest working conditions every time an employer could identify a mi- nor misstatement, it would render that right a nullity in a large segment of instances and would profoundly chill employees from exercising their Section 7 rights at all.” Maine Coast Re- gional Health Facilities, 369 NLRB No. 51, slip op. at 15 (2020). Furthermore, Renna claimed the letter contained misinformation or inaccuracies, but he never advised Dehring what those alleg- edly were, and Respondent has presented no evidence or argu- ment that any misinformation or inaccuracies in the letter were deliberately or maliciously false. I, therefore, find Renna’s state- ment would reasonably tend to interfere with, restrain or coerce employees engaged in the exercise of their Section 7 rights, in violation of Section 8(a)(1). D. Threats During April 14 PDC Meeting with Johnson The General Counsel alleges that on April 14, Renna, during his one-on-one meeting with Johnson, violated Section 8(a)(1) when he threatened that if the employees unionized: (a) bargain- ing would start from zero and from scratch; (b) employees would not be able to work at non-union stores, and vice-versa; and (c) Respondent would be required to provide the Union access to all documents employees have submitted to Respondent so far. The Board has held that employer statements that bargaining will be from scratch or from zero violate Section 8(a)(1) if, in context, they reasonably could be understood by employees as a threat of loss of existing wages and benefits and leave employees with the impression that what they may ultimately receive de- pends upon what the union can induce the employer to restore. The duty to bargain ordinarily forecloses unilateral changes to wages, hours, or terms and conditions of employment, and bar- gaining begins with those in existence at the time the union is selected. On the other hand, such statements are not violative when communications make it clear that any reduction in wages or benefits or changes to the terms and conditions of employment may occur as a result of the give and take of good-faith negotia- tions. See Boar’s Head Provisions Co., 370 NLRB No. 124 slip op. 1 fn. 2, 17–18 (2021); Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980), enfd. mem. 679 F.2d 900 (9th Cir. 1982). See also Somerset Welding & Steel, Inc., 314 NLRB 829, 832 (1994). The presence of contemporaneous threats or unfair labor prac- tices is often a critical factor in determining whether there is a threatening color to the employer's remarks. Coach & Equip- ment Sales Corp., 228 NLRB 440, 440–441 (1977). Renna informed Johnson in their meeting that if the Union was voted in, the parties would enter a state of what is called dynamic status quo, which he said “pretty much means that we’re just go- ing to do our jobs until collective bargaining is worked out.” He then admitted he knew nothing about collective bargaining be- cause he was not a lawyer. But that did not stop him from offer- ing what would happen; He said that, on average, negotiations take up to 410 days and: [A]s part of the contract negotiations, both sides will start from scratch. So, benefits, wages, what your work will be, will actu- ally start from zero. Some people that I have talked to outside of our store said that they think that we’re adding on benefits and that’s a start from scratch process. Which is why --because it takes a while. I conclude from Renna’s statement that benefits, wages, and work “will actually start from zero” was objectively an unlawful threat that existing wages and benefits would be reduced and their work would change if the Union was elected, and the Union would then have to try to get them back. Contrary to Respond- ent’s arguments, the language Renna used was conclusive and definite (bargaining “will start from scratch” and “benefits, wages, and what your work will be, will actually start from zero”), and not an indication of what might happen through the give and take of good-faith negotiations. This conclusion is bolstered by Renna’s subsequent statement during the meeting that once a contract was reached “non-union stores cannot borrow partners to union stores, and vice- versa. . . .” The ability to freely borrow from and lend to another store is a clear benefit for the partners. It gives them the oppor- tunity to volunteer for additional shifts at other stores and it helps ensure that stores have adequate staffing. Partners in an under- staffed store reasonably would expect to work more without the help from partners from other stores. Again, the message was conclusive and definite, borrowing would be curtailed, if not eliminated, because this new requirement would reduce the pool of stores to only union stores. And unlike Renna’s statement that he may no longer be able to help partners in serving customers under the terms of a negotiated agreement, this statement about borrowing was presented as an established fact if the employees voted in the Union. Hence, I find this statement is also a clear threat of a loss of a benefit if the employees unionized, in viola- tion of Section 8(a)(1). Finally, there is Renna’s statement that the Union is legally entitled to all information employees have provided to Respond- ent so far. Unlike the prior statements, I do not view this as an unlawful threat. Rather, it is an imprecise statement of the law regarding a union’s right to information about the employees it represents. Section 8(a)(5) imposes on an employer the duty to provide the union with requested information that is relevant to and necessary for its representational duties. See NLRB v. Acme Indus. Co., 385 U.S. 432, 435–436 (1967). Generally, requested information relating to unit employees' terms and conditions of employment is presumptively relevant and must be produced. NP Palace, LLC, 368 NLRB No. 148, slip op. at 4 (2019); A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011). That right, however, does not arise until the union is certified or rec- ognized as the bargaining representative, and it does not neces- sarily include “all information employees have provided.” Renna’s use of the term “so far” could be interpreted as him sug- gesting the Union was entitled to the information at that time, before it was certified or recognized as the bargaining DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 representative. The Board has held that misstatements of the law are not in themselves a violation of Section 8(a)(1) if there is no express threat that the employer, by its own action, would inter- fere with employees’ statutory rights. Daniel Construction Co., 257 NLRB 1276, 1276 (1981), enfd. mem. 732 F.2d 139 (1st. Cir. 1984). I, therefore, recommend dismissing this allegation as I find it contains no threats. E. Mandatory Meeting In addition to alleging that Renna made threatening statements during his April 14 meeting with Johnson, the General Counsel alleges that Renna independently violated Section 8(a)(1) by re- quiring Johnson to attend a meeting on paid time that she did not feel she could leave in which he provided her with Respondent’s views on unions. The Board has interpreted Section 8(c) as en- titling employers to lawfully compel employees to attend indi- vidual or group meetings in which it urges them to reject union representation. Babcock & Wilcox Co., 77 NLRB 577, 578 (1948). See also NLRB v. Gissel Packing Co., 395 U.S. at 617. The General Counsel argues the Board should overrule Babcock and hold that, as a matter of law, reasonable employees will per- ceive an implicit, if not explicit, threat of reprisal for exercising their right to refrain from listening to their employer’s speech concerning their exercise of Section 7 rights in two circum- stances: when they are (1) convened on paid time or (2) cornered while performing their job duties. In both cases, employees con- stitute a captive audience, compelled to listen by a threat of dis- cipline, discharge, or other reprisal. In addition, the General Counsel contends the Board should adapt the frameworks of Johnnie’s Poultry Co., 146 NLRB 770, 774 (1964), enf. denied, 344 F.2d 617 (8th Cir. 1965), Struksnes Construction Co., 165 NLRB 1062, 1062 (1967), and Allegheny Ludlum Corp., 333 NLRB 734, 734 (2001), enfd, 301 F.3d 167 (3d Cir. 2002), in- volving sensible prophylactic safeguards, to the captive-audi- ence context. The position of the administrative law judge is to follow Board precedent that has not been overruled by the U.S. Supreme Court. It is not to make or alter existing law or policy; that role lays solely with the Board. See Western Cab Co., 365 NLRB 761 fn. 4 (2017); Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004). Thus, under Babcock & Wilcox Co, I find Renna did not violate the Act by requiring Johnson to attend the April 14 meeting. CONCLUSIONS OF LAW 1. Respondent, Starbucks Corporations, is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent’s Store Manager, Tim Renna, is a supervisor within the meaning of Section 2(11) of the Act and an agent within the meaning of Section 2(13) of the Act. 3. On about March 28, 2022, by text message, Renna interro- gated an employee about employee union activity or support, in violation of Section 8(a)(1) of the Act. 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 9 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed due to the Coronavirus Disease 2019 (COVID–19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees has returned to 4. On about March 28, 2022, by text message, Renna threat- ened an employee that engaging in union activity causes loss of trust, in violation of Section 8(a)(1) of the Act. 5. On about March 28, 2022, by text message, Renna threat- ened employees not to spread concerns among the partners re- garding their reasons for choosing a union, in violation of Sec- tion 8(a)(1) of the Act. 6. On about April 14, 2022, Renna, at a meeting with employ- ees, threatened that: (a) bargaining would start from zero and from scratch, and (b) employees will not be able to work at non- union stores and non-union employees will not be able to work at union stores, in violation of Section 8(a)(1) of the Act. 7. The above unfair labor practices affect commerce within the mean- ing of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended ORDER8 Having found Respondent, Starbucks Corporation, has en- gaged in certain unfair labor practices, I find that it, through its officers, agents, successors, and assigns, must cease and desist therefrom and to take certain affirmative action designed to ef- fectuate the policies of the Act. 1. Cease and desist from (a) Interrogating employees about their union activity. (b) Threatening employees that engaging in union activity causes loss of trust and not to spread concerns among the part- ners regarding the reasons for choosing a union. (c) Threatening employees that bargaining would start from zero and from scratch and that employees will not be able to work at nonunion stores and nonunion employees will not be able to work at union stores. (d) In any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights listed above. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act: (a) Within 14 days after service by the Region, post at its 5351 Lyndale Ave South, Minneapolis, Minnesota store, copies of the attached notice marked “Appendix A.” 9 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. In ad- dition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its members by such means. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by 30 any other material. In the event that, during the pendency of these proceedings, work, and the notices may not be posted until a substantial complement of employees has returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribution of the notice if Respondent customarily communicates with its employees by electronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” STARBUCKS CORP. 13 Respondent has gone out of business or closed the facility in- volved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by Respondent at the facility at any time since March 28, 2022. (b) Within 21 days after service by the Region, file with the Regional Director for Region 18 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., April 6, 2023 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government FEDERAL LAW GIVES YOU THE RIGHT TO: Form, join, or assist a union Choose a representative to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT interrogate employees about their or other em- ployees’ union activity or support. WE WILL NOT threaten employees that engaging in union ac- tivity causes loss of trust and not to spread concerns among the partners regarding the reasons for choosing a union. WE WILL NOT threaten employees that bargaining would start from zero or scratch and that if employees unionize they will not be able to work at non-union stores and that non-union employ- ees will not be able to work at union stores. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights listed above. STARBUCKS CORPORATION The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-299560 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.