Trader Joe’s East: Unequal Rule Enforcement Undermined a Final Warning

The evidence supported an earlier counseling session but not the employer’s later explanation for a final warning. In Trader Joe’s East, Inc., Case 09-CA-312856, the Board’s January 15, 2026 order adopted Judge Sarah Karpinen’s December 5, 2025 decision after no exceptions were filed. The adopted decision found retaliatory discipline and ordered the warning removed, while rejecting additional relief that lacked proof.

The dispute separated two disciplinary events

Louisville employee Zachary Smith supported Trader Joe’s United and was in a relationship with a lead organizer. Management knew his union position. In February 2023, a supervisor counseled him about an extended break and related conduct involving a shared laptop used for timekeeping. The judge credited evidence supporting that counseling.

A later event was different. On February 19, Smith clocked out on the shared laptop after seeing coworker Patterson do so. He testified that he did so to test whether management was targeting him. The next day, management issued a written incident report designated a final warning. It listed that clock-out alongside three February 2 matters already addressed by counseling: Clocking in before putting away belongings, taking an extended break and using the shared laptop. Trader Joe’s, adopted decision, PDF pages 3–10.

Actual practice undermined the stated reason

Evidence showed repeated laptop clock-outs by Patterson without comparable discipline. The judge examined the difference between clocking in before putting away personal items, taking an extended break and clocking out at the end of work. Treating those acts as one undifferentiated rule violation obscured the comparison.

The final warning also revisited conduct for which Smith had already been counseled. Along with management’s knowledge and the comparative treatment, the departure from ordinary practice supported the finding of unlawful motivation. The judge applied Wright Line, 251 NLRB 1083 (1980), and Intertape Polymer Corp., 372 NLRB No. 133 (2023), and rejected the employer’s same-decision position on this record. Trader Joe’s at 11–16.

The rating and monetary requests required another causal link

The order required rescinding the incident report and removing references to it, including from the later review. But the judge declined to order a higher performance rating or the requested monetary relief. Other unchallenged performance matters remained, including customer-complaint and clothing issues. Smith’s own explanation of the lower rating focused on the customer complaints, and the record did not prove that the unlawful warning caused the rating or lost raise alleged.

That difference explains the remedy. The finding that a warning was retaliatory supported removing it. Changing an additional employment decision or calculating lost pay required evidence tying that consequence to the violation. Trader Joe’s at 17–20.

The public reasoning stands apart from sealed exhibits

The opinion also addressed an evidentiary dispute involving internal emails. The judge explained that the material was unnecessary to resolving the disciplinary claim, and the exhibit remained sealed. This analysis relies on the public decision and does not reproduce that exhibit.

The Board adopted the findings and recommended order without exceptions. The adoption establishes the agency action described here; it is not evidence that every compliance step or payment has since occurred. Read the Board’s adoption order with the underlying decision.

For the practical preparation task, our guide explains comparing final warnings with actual coworker discipline while keeping evidence gathering within lawful access.