GHG Management LLC, d/b/a Windy City Cannabis and d/b/a Curaleaf Weed Street

372 NLRB No. 13 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. GHG Management LLC d/b/a Windy City Cannabis and d/b/a Curaleaf Weed Street and United Food & Commercial Workers Local 881. Case 13–CA– 295623 December 5, 2022 DECISION AND ORDER BY MEMBERS KAPLAN, WILCOX, AND PROUTY This is a refusal-to-bargain case in which the Respond- ent GHG Management LLC d/b/a Windy City Cannabis and d/b/a Curaleaf Weed Street is contesting the Union’s certification as bargaining representative in the underlying representation proceeding. Pursuant to a charge and amended charge filed on May 11 and July 26, 2022,1 by United Food & Commercial Workers Local 881 (the Un- ion), the General Counsel issued a complaint on July 28, 2022, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recog- nize and bargain with the Union following the Union’s certification in Case 13–RC–271360. (Official notice is taken of the record in the representation proceeding as de- fined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and assert- ing affirmative defenses. On September 15, 2022, the General Counsel filed a Motion for Summary Judgment. On September 16, 2022, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On September 30, 2022, the Re- spondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 The Respondent, in its answer to the complaint, admits that it was served with the charge, but denies that it was served with the amended charge. It also claims that it is without sufficient knowledge to admit or deny the filing and service dates of the charge and amended charge. Cop- ies of the amended charge and affidavit of service are attached as Exhs. 13–14 to the General Counsel’s motion, and the Respondent has not con- tested the authenticity of those documents in its response to the Notice to Show Cause. Accordingly, we find that the Respondent’s denials have not raised any issue warranting a hearing. See, e.g., U-Haul Co. of Ne- vada, 345 NLRB 1301, 1301 fn. 1 (2005), enfd. 490 F.3d 957 (D.C. Cir. 2007); Shore Club Condominium Assn., 340 NLRB 700, 700 fn. 1 (2003), enfd. 400 F.3d 1336 (11th Cir. 2005). 2 In its answer to the complaint, the Respondent denies par. IV(d), which states that the Union has been the exclusive collective-bargaining representative since August 5, 2021. That issue was fully litigated and Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain but con- tests the validity of the Union’s certification of representa- tive based on its objections to the election in the underly- ing representation proceeding.2 All representation issues raised by the Respondent were or could have been litigated in the prior representation pro- ceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor has it established any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice pro- ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Illinois limited liability company doing business as Windy City Cannabis or Curaleaf Weed Street, with an office and place of busi- ness in Chicago, Illinois, is an employing entity for a retail cannabis dispensary operator. In conducting its operations during the 12-month period ending July 15, 2022, the Respondent performed services valued in excess of $50,000 in states other than the State of Illinois. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election, the Union was certified on August 5, 2021,4 as the exclusive collective- resolved in the underlying representation hearing. The Respondent also denies the portion of par. VI alleging that the Respondent has violated Sec. 8(a)(5) and (1) and that the unfair labor practices affect commerce within the meaning of Sec. 2(6) and (7) of the Act. These denials of legal conclusions do not raise any issues warranting a hearing. 3 The Respondent’s requests that the complaint be dismissed and the election and certification be set aside are therefore denied. 4 On April 21, 2022, the Board granted the Respondent’s request for review of the Acting Regional Director for Region 7’s Decision and Cer- tification of Representative, finding that it raised substantial issues war- ranting review with respect to the Respondent’s objection alleging that a Board agent affected the outcome of the election by misrepresenting the status of an individual mail ballot (Objection 2). The Board denied the request for review in all other respects. On review, the Board found that the alleged misrepresentation did not raise a reasonable doubt as to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 bargaining representative of the Respondent’s employees in the following appropriate unit within the meaning of Section 9(b) of the Act: Included: All full-time and regular part-time product specialists employed by the Employer from its facility currently located at 923 W. Weed Street in Chicago, Il- linois. Excluded: Managers, product specialist leads, agents in charge, office clerical employees and guards, profes- sional employees and supervisors as defined in the Act. The Union continues to be the exclusive collective-bar- gaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain By letter dated April 26, 2022, the Union requested that the Respondent bargain with the Union as the exclusive collective-bargaining representative of the unit. By letter dated May 5, 2022, and continuing to date, the Respondent has refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since May 5, 2022, to recognize and bargain with the Union as the exclusive collective- bargaining representative of the employees in the appro- priate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an un- derstanding is reached, to embody the understanding in a signed agreement. fairness and validity of the election and that the Acting Regional Director properly overruled the objection. Accordingly, the Board affirmed the Decision and Certification of Representative. Although Member Kaplan dissented from that Decision on Review and Order, he agrees that the Respondent has raised no new evidence in the instant proceeding and that its defenses were or could have been liti- gated in the underlying representation proceeding. Accordingly, he joins his colleagues in the instant Decision and Order. 5 Having ordered the customary remedies for test-of-certification cases, we decline to order, in this case, the additional remedies sought by the General Counsel in her Motion for Summary Judgment. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Union.5 Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Re- spondent, GHG Management LLC d/b/a Windy City Can- nabis and d/b/a Curaleaf Weed Street, Chicago, Illinois, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with United Food & Commercial Workers Local 881 (the Un- ion) as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) 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) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time and regular part-time product specialists employed by the Employer from its facility currently located at 923 W. Weed Street in Chicago, Il- linois. Excluded: Managers, product specialist leads, agents in charge, office clerical employees and guards, profes- sional employees and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Chicago, Illinois, copies of the attached no- tice marked “Appendix.”6 Copies of the notice, on forms Member Prouty would consider such remedies in a future appropriate case but concurs with the order in the instant proceeding because the General Counsel has not shown that these additional measures are needed to remedy the effects of the Respondent’s unfair labor practices. See DFWS, Inc. d/b/a The Guild San Jose, 370 NLRB No. 47, slip op. at 2 fn.6 (2020). 6 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facilities reopen GHG MANAGEMENT LLC D/B/A WINDY CITY CANNABIS 3 provided by the Regional Director for Region 13, after be- ing signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since May 5, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 13 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. Dated, Washington, D.C. November 5, 2022 ______________________________________ Marvin E. Kaplan, Member ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employ- ees by electronic means, the 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 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. 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 fail and refuse to recognize and bargain with United Food & Commercial Workers Local 881 (the Union) as the exclusive collective-bargaining representa- tive of our employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and con- ditions of employment for our employees in the following appropriate bargaining unit: Included: All full-time and regular part-time product specialists employed by the Employer from its facility currently located at 923 W. Weed Street in Chicago, Il- linois. Excluded: Managers, product specialist leads, agents in charge, office clerical employees and guards, profes- sional employees and supervisors as defined in the Act. GHG MANAGEMENT LLC D/B/A WINDY CITY CANNABIS AND D/B/A CURALEAF WEED STREET “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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 The Board’s decision can be found at www.nlrb.gov/case/13-CA-295623 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.