Absolute Healthcare d/b/a Curaleaf

372 NLRB No. 16 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. Absolute Healthcare d/b/a Curaleaf Arizona and Anissa Keane. Case 28–CA–267540 December 8, 2022 DECISION AND ORDER BY MEMBERS RING, WILCOX, AND PROUTY On February 8, 2022, Administrative Law Judge Dickie Montemayor issued the attached decision. The Respond- ent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision1 and the record in light of the exceptions2 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions for the reasons set forth in the judge’s decision as further ex- plained below, and to adopt the recommended Order as modified and set forth in full below.3 A. Factual Background The Respondent operates medical cannabis dispensaries nationwide, including eight in Arizona. To ensure com- pliance with Arizona Department of Health Services reg- ulations, the Respondent maintains a cash-handling policy requiring that employees keep accurate register drawers and tills. The Respondent’s employee handbook sets forth a four-step progressive discipline policy applicable to any violation of its policies: (1) verbal warning/counseling;4 (2) written warning; (3) final written warning; and (4) ter- mination. The handbook explains that the Respondent “reserves the right, in its sole discretion, to combine or skip progressive discipline steps based on the facts of each situation, the nature of the offense, timing, prior counsel- ing or disciplinary action, the employee’s work record, training, etc.” 1 After the issuance of the judge’s decision, the United States District Court for the District of Arizona granted the Board’s petition for injunc- tive relief filed pursuant to Sec. 10(j) of the Act. Overstreet v. Absolute Healthcare, No. CV-22-00361-PHX-GMS, 2022 WL 2275667 (D. Ariz. June 23, 2022). 2 In the absence of exceptions, we adopt the judge’s findings that the Respondent violated Sec. 8(a)(1) of the Act by promising employees benefits to discourage unionization, threatening loss of tips if employees unionized, and creating an impression of unlawful surveillance of em- ployees’ union activities. 3 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language, and in accordance with Paragon Employee Anissa Keane, the Charging Party, worked as a “budtender” at the Gilbert, Arizona dispensary for ap- proximately 3 years. Her responsibilities included selling marijuana, stocking inventory, and cleaning the storefront. In June 2019, 1½ years into Keane’s employment, the Re- spondent purchased the Gilbert facility from another com- pany. In August 2019, Keane signed an acknowledgement of receipt of the employee handbook. In November 2019, Keane contacted a United Food and Commercial Workers (UFCW), Local 99 organizer about organizing a union at the Gilbert facility. In the following months, Keane spoke to the organizer and discussed unionization with her coworkers. On July 6, 2020,5 Tyler Neier, the Gilbert facility gen- eral manager, emailed several managers, including Hu- man Resources (HR) Director Stephanie Cade and Retail Operations District Manager Andrew Holstein, that “it was just brought to my attention that Anissa Keane has been talking to some of the Associates about unionizing the dispensary and asking them if they would sign a peti- tion.” A subsequent email chain among at least 10 high- level managers, including Respondent’s president and HR professionals, discussed Keane’s organization activities, “next steps,” “mitigation efforts,” and “union avoidance.” In late July, Keane sent an information sheet to her coworkers explaining various topics such as the function and the purpose of unions, union dues, and general infor- mation about the UFCW. The document referred to union authorization cards, which Keane began distributing and collecting signed for purposes of filing an election peti- tion. On July 27, Neier sent Respondent’s President Steve Cottrell, Cade, Holstein, and District Manager Keith Mor- ris an email under the subject “Gilbert Union Update” with a document entitled “UNION FACT SHEET.pdf” at- tached. Neier noted, “Someone just sent this to me and said that Anissa [Keane] sent it to everyone tonight.” On July 31, the Respondent held two “mandatory” un- ion “education meetings” with the Gilbert dispensary em- ployees.6 Cade presented the Respondent’s official posi- tion on unionization, generally expressed the purported disadvantages of unionization, emphasized that unions Systems, Inc., 371 NLRB No. 104 (2022). We shall substitute a new notice to conform to the Order as modified. 4 Throughout the record and in the parties’ briefs, “verbal warning,” “verbal counseling,” and “verbal coaching” are used interchangeably. 5 Dates hereafter, unless otherwise indicated, are in 2020. 6 The judge stated that the meetings were scheduled “at a time after the Employer’s surreptitious review of information contained in Keane’s private telephonic communications to other employees.” We clarify that the record shows that the Respondent learned of the contents of those text messages from information an unidentified employee voluntarily disclosed to Assistant Store Manager Cook. There is nothing in the rec- ord showing that the Respondent’s gathering of information about Keane’s union activities invaded her privacy. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD impede “workplace flexibility,” and predicted that, if the dispensary unionized, all employees would be required to pay union dues. Keane attended the first meeting, during which Cade said employees would receive “better dis- counts” on dispensary products if they did not unionize, that unionizing would result in employees losing their tips, and that “the person trying to organize the Union was just trying to get a job with the Union because she would get paid more.” On August 22, Keane had a $20 drawer shortage. On August 23, Assistant Store Manager Kaitlin Cook met with Keane and told her about that error. Keane asked Cook if she would be fired for the incident. Cook replied that, as articulated in the Respondent’s rulebook, it would take at least four cash-handling violations to be fired. On August 28, Cade met with Keane and told her that, since the August 22 cash-handling incident was her third write- up, the Respondent was terminating her in accordance with its progressive discipline policy. Keane replied that Cook had informed her that, according to the rulebook, it would take four cash-handling problems for her to be ter- minated. Cade responded that there was no such rule and then terminated Keane. Keane’s “Separation of Employment” document listed four incidents as justification for her termination.7 The first incident was a “verbal coaching” on April 10, for a drawer shortage of $10.8 The second was a written warn- ing on May 1, for a single transaction entailing seven er- rors that occurred on April 26. The third was a “final writ- ten” warning on July 17, for a transaction entailing three errors, including ringing up a patient under an incorrect profile with an expired medical card and failing to inform management of the mistake. The fourth was on August 22, for the $20 cash-handling discrepancy that led to her discharge. The record contains evidence of one other instance in which the Respondent discharged an employee pursuant 7 The judge’s decision does not address Keane’s disciplinary history. However, for the reasons explained in the discussion below, the omission does not affect our finding that the Respondent unlawfully discharged Keane. 8 In adopting the judge’s decision, we do not rely on his statement that that Keane “had not had any [cash-handling] incidents during the entirety of 2020 prior to the [August 22] $20 error.” Although Keane testified that she did not recall receiving a verbal warning, in an April 28 email sent to Cade, Holstein, and others regarding Keane’s May 1 inci- dent (before the Respondent knew of Keane’s union activities), Neier wrote, “I gave [Keane] verbal coaching on 4/10.” We disagree, however, with the dissent’s reliance on the April 28 email from Neier as proof that the Respondent gave Keane that verbal warning for “several” violations. The first-hand testimony related to this warning addressed only the drawer shortage, and the only official documentation of the warning (i.e., the termination notice issued on August 22 that listed the bases of mis- conduct resulting in termination) stated that the April 10 warning was “delivered for a drawer shortage of $10.00.” Neier did not testify, and to its progressive disciplinary policy. That employee, Ty- ler Tanselle-Hubbard, was a budtender at the Camelback, Arizona dispensary. While there is no evidence of Hub- bard receiving a verbal warning or counseling (the first step of the progressive discipline policy), he had 7 cash- handling discrepancies. On April 23, 2019, he received a written warning that listed 3 incidents of $10 drawer short- ages that occurred on March 8 and 29, and April 20. On May 1, 2019, he received a final written warning, which noted that he had “had multiple cash incidents” and listed 5 incidents that occurred on March 5, 8, and 30; and April 20 and 27. On June 11, 2019, the Respondent discharged Hubbard for a $20 drawer shortage. B. Discussion Applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the judge found that the Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging Keane for her protected union activity. The judge found that the General Counsel met her initial Wright Line burden of showing that Keane engaged in un- ion activity; the Respondent was aware of that activity; and the Respondent had discriminatory motivation as shown by the timing of Keane’s discharge, the presence of other unfair labor practices, and evidence of specific ani- mus and disparate treatment.9 The judge also found that the Respondent did not carry its defense burden of show- ing that it would have taken the same action even if Keane had not engaged in union activity. Finally, the judge or- dered additional remedies, including notice reading and union access. We agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Keane for engaging in protected union activity. First, the judge was correct in concluding that the timing of Keane’s his post-hoc statement in the April 28 email that the April 10 coaching was the result of “several . . . audit discrepancies” is unsubstantiated hearsay. The dissent acknowledges the hearsay quality of the evidence it relies on to turn one violation into “at least” four. We reject as un- proven the dissent’s claim that Keane’s April 10 verbal warning counts for “[at] minimum” four infractions, arithmetic without which its con- tention that Keane’s disciplinary record equaled that of comparator Hub- bard collapses. 9 The Board will infer discriminatory motive or animus from circum- stantial evidence, such as: (1) timing or proximity in time between the protected activity and adverse action; (2) delay in implementation of the discipline; (3) departure from established discipline procedures; (4) dis- parate treatment in implementation of discipline; (5) inappropriate or ex- cessive penalty; (5) employer’s shifting or inconsistent reasons for disci- pline; and (6) evidence that an employer’s proffered explanation for the adverse action is a pretext. Shamrock Foods Co., 366 NLRB No. 107, slip op. at 10 (2018), enfd. 779 Fed. Appx. 752 (D.C. Cir. 2019). ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 3 discharge–2 months after the Respondent learned of Keane’s union activities–supports a finding of animus. See Mondelez Global, 369 NLRB No. 46, slip op. at 2 (2020) (finding that, where adverse employment actions occurred only several months after employees’ Section 7 activities, temporal proximity provided “some evidence of a causal link between the employees’ union activities and their loss of employment”), enfd. 5 F.4th 759 (7th Cir. 2021). Second, the judge correctly concluded that the Re- spondent’s commission of several independent Section 8(a)(1) violations, which the Respondent does not except to here, also supports a finding of animus. See Kitsap Ten- ant Support Services, 366 NLRB No. 98, slip. op. at 16 (2018) (explaining that the employer’s extensive unfair la- bor practices in violation of the Act, among other things, further demonstrated animus).10 In particular, we find that HR Director Cade’s statements during the July 31 union education meeting demonstrated specific animus against Keane. Cade stated that if employees organized, they would lose their tips, and that “the person trying to organ- ize the Union was just trying to get a job with the Union because she would get paid more.” Although Cade did not mention Keane by name, she could not have been referring to anyone else; Keane was the only female employee or- ganizer. See Bardon, Inc., 371 NLRB No. 78, slip. op. at 1 (2022) (finding that an employer’s characterization of a group of employees known to be engaged in union activi- ties as “troublemakers” evinced animus). Third, the judge’s finding of animus is supported by evidence, dis- cussed below, of disparate treatment of Keane in compar- ison to former employee Hubbard. Cf. Airgas USA, 366 NLRB No. 104, slip. op. at 2 (2018) (noting that a finding of disparate treatment, among other factors, supported a 10 See also East End Bus Lines, Inc., 366 NLRB No. 180, slip. op. at 1, fn. 5 (2018) (noting that unchallenged unfair labor practices “lend[] their aroma to the context in which the [remaining] issues are consid- ered”) (citations omitted); Torrington Extend-A-Care Employee Assn. v. NLRB, 17 F.3d 580, 590 (2d Cir. 1994) (observing that where an em- ployer contests some, but not all, of the Board’s findings of unfair labor practices, “[i]t is against the background of acknowledged violations that we consider those findings”) (citations omitted). 11 We agree with the judge that the General Counsel established the existence of “a causal relationship” between Keane’s protected union ac- tivity and the Respondent’s adverse action against her Respondent’s dis- charge of Keane violated Sec. 8(a)(3) and (1) under Tschiggfrie Proper- ties, Ltd., 368 NLRB No. 120, slip op. at 1, 6 (2019) (clarifying that “the evidence of animus must support finding that a causal relationship exists between the employee’s protected activity and the employer’s adverse action against the employee”). In adopting the judge’s findings, Member Wilcox notes her agreement with Chairman McFerran’s concurring opin- ion in Tschiggfrie, wherein she found the majority’s “clarification” of Wright Line principles was unnecessary as the “concepts [discussed by the majority there] are already embedded in the Wright Line framework and reflected in the Board’s body of Wright Line cases.” Id., slip op. at 10. Applying the Board’s well-established Wright Line framework here, finding of animus) (citing Aliante Gaming, 364 NLRB 995, 995 fn. 3 (2016)).11 Turning to the Respondent’s defense burden, we also agree with the judge that the Respondent failed to demon- strate that it would have terminated Keane even absent her union activity. The facts here present a dual-motive situ- ation in which “the employer defends against a [Section] 8(a)(3) charge by arguing that, even if an invalid reason might have played some part in the employer’s motiva- tion, the employer would have taken the same action against the employee for a permissible reason.” Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).12 To establish this affirmative defense, “[a]n employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity.” Consolidated Bus Transit, 350 NLRB 1064, 1066 (2007) (quoting W.F. Bolin Co., 311 NLRB 1118, 1119 (1993), enfd. 577 F.3d 467, 474 (2d Cir. 2009)) (internal quotations omitted). Where “the General Counsel makes out a strong showing of discriminatory motivation, the respondent’s rebuttal burden is substantial.” Bally’s Park Place, 355 NLRB 1319, 1327 (2010), enfd. 646 F.3d 929 (D.C. Cir. 2011). The Respondent primarily argues that it has met its de- fense burden by demonstrating that it followed its estab- lished 4-step progressive discipline policy in discharging Keane. Although the Respondent did provide documen- tation of Keane’s disciplinary history, the record shows that its handbook itself removes any strict adherence to its 4-step disciplinary process by reserving to the Respondent “the right in its sole discretion, to combine or skip pro- gressive discipline steps based on the facts of each Member Wilcox agrees that the General Counsel met her initial burden of establishing that the Keane’s protected union activity was a motivating factor in the Respondent’s decision to terminate her. She further agrees that the Respondent failed to establish that it would have taken the same action in the absence of Keane’s protected union activity. Member Prouty agrees with his colleague that, applying well-estab- lished Board precedents, the Respondent violated the Act as alleged. Be- cause Tschiggfrie’s “clarification” of Wright Line’s principles does not alter that conclusion, Member Prouty expresses no view on Tschiggfrie, in which he did not participate. 12 See Roure Bertrand Dupont, 271 NLRB 443, 450 (1984) (explain- ing that a dual-motive issue was presented where the General Counsel established animus as a motivating factor, but the employer also pre- sented a legitimate basis for discipline based on a record of misconduct). In contrast, “if the reasons for the adverse action are found to be pre- textual—that is false or not actually relied upon, there is no need to per- form the second part of the Wright Line test as the employer necessarily fails to show that it would have taken the same action for those reasons, absent the protected conduct, and thus cannot meet its rebuttal burden.” See Golden State Foods Corp., 340 NLRB 382, 385 (2003); Healthy Minds, Inc., 371 NLRB No. 6, slip op. at 5 (2021). 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD situation, the nature of the offense, timing, prior counsel- ing or disciplinary action, the employee’s work record, training, etc.” The record supports the judge’s finding that in administering its discipline policy, the Respondent did not grant Keane the same leniency that it granted the only other employee whose disciplinary history is in the record. Cf. Mid Mountain-Foods, Inc., 350 NLRB 742, 743 (2007) (finding that disciplinary action administered in ac- cordance with a lawful disciplinary policy is lawful “ab- sent evidence of disparate treatment.”). As noted above, Keane’s only comparator, Hubbard, accrued 7 cash-han- dling violations before the Respondent terminated him.13 In contrast, although Keane was disciplined for four sepa- rate transactions, she had only 2 cash-handling discrepan- cies when the Respondent fired her. The Respondent has provided no explanation for why it applied its policy leni- ently to Hubbard but strictly to Keane. Additionally, as the judge found, Cook told Keane that it would take “at least four cash handling incidents” to be fired, but then fired her for two.14 Finally, we also agree with the judge that the Respond- ent’s reliance on Arizona’s strict regulatory and licensing requirements as justification for terminating Keane is in- sufficient to satisfy its defense burden. The Respondent emphasizes that Keane’s policy violations “were egre- gious, particularly considering [the Respondent’s] heav- ily-regulated environment.” If, as the Respondent sug- gests, the severity of a policy violation can be measured in terms of the compliance risk it poses to the Respondent, both Hubbard’s conduct (7 cash-handling violations) and Keane’s conduct (4 transactions involving a mix of cash- handling and non-cash handling violations) were equally severe because both Hubbard’s and Keane’s conduct im- plicated compliance issues set forth in the Arizona Depart- ment of Health Services’ Medical Marijuana Inspection 13 There is no evidence in the record that Hubbard engaged in any protected union activity. 14 The dissent contends that in light of the Respondent’s progressive disciplinary policy we should not have relied on Cook’s statement to sup- port a finding of disparate treatment, particularly because Cook is the “low level” assistant store manager. Contrary to the dissent, we are not giving credence to Cook’s statement over the Respondent’s written pol- icy, nor are we relying on it for the truth of the matter asserted. Rather, we find that the inconsistency between the Respondent’s application of its disciplinary policy in its handling of Hubbard’s and Cook’s cash-han- dling violations, and the statement from Cook (whose position affords her first-hand knowledge of how the Respondent’s administers discipline at the facility), calls into question the Respondent’s claim that employee discipline, in practice, has historically been administered in accordance with its written policy. 15 Section R9-17-316(C)(26) of the Inspection Sheet requires that dis- pensaries must maintain an inventory control system documenting “[e]ach day’s beginning inventory, acquisitions, harvests, sales, dis- bursements, disposal of unusable marijuana, and ending inventory” (em- phasis added). Sheet. Again, the Respondent has not explained why Hub- bard, who also posed a compliance risk, was afforded more leniency than Keane. Accordingly, we find that the evidence of disparate treatment here contradicts the Re- spondent’s claim that it would have terminated Keane even absent her protected activity. Our dissenting colleague claims that Keane’s miscon- duct implicated a compliance issue pursuant to Arizona Department of Health standards, but Hubbard’s did not, because the Medical Marijuana Inspection Sheet “says nothing about how cash is to be handled or cash-drawer shortages addressed.” However, the Inspection Sheet specifies that dispensaries must implement an inventory control system, which documents, among other things, marijuana sales.15 The Arizona Administrative Code (A.A.C.), on which the Inspection Sheet is based, specifies that dispensaries are required to “document, develop, and implement policies and procedures regarding business records, such as manual or computerized records of assets and liabilities, monetary transactions, journals, ledgers, and supporting documents, including agreements, checks, invoices, and vouchers” (A.A.C. Section R9-17- 310(2)(b)), and renewing a dispensary license requires that the dispensary submit financial statements and an in- dependent audit report. (A.A.C. Section R9-17- 308(2)(b)).16 This is consistent with the testimony of the Respondent’s own witness, Compliance Director Liam Davis, that ensuring that tills are accurate is necessary to maintain compliance with state law.17 Accordingly, a vi- olation of the Respondent’s Cash Handling policy also im- plicates a compliance issue pursuant to Arizona Depart- ment of Health standards.18 In conclusion, while the Respondent has provided a fa- cially reasonable explanation for discharging Keane, the Respondent’s defense burden under Wright Line “is not to 16 While the laws do not specifically use the word “cash,” any fi- nance-related regulations necessarily cover cash transactions because medical marijuana dispensaries operate on a cash-only basis with only limited exceptions. See Secure and Fair Enforcement Banking Act of 2021,167 Cong 1 (2021) (statement of Representative Warren Davidson) (explaining that dispensaries are forced to operate on a cash-only basis because banks and financial institutions are not willing to take on the risks associated with providing financial services to marijuana-related businesses under the current regulatory landscape). 17 Compliance Director Davis further explained that, while the Re- spondent’s policy only holds employees accountable for discrepancies exceeding $5, a $5 cash discrepancy is the same as a $100 discrepancy from a compliance standpoint. 18 Although the dissent emphasizes that Keane’s conduct constituted a direct violation of state law, whereas Hubbard’s violations only indi- rectly implicated compliance with state law, the Respondent does not as- sert that its concern over Keane’s conduct was that she violated state law. Rather, the Respondent’s asserted concern was that Keane’s conduct put its license at risk. For the reasons explained above, Hubbard’s cash han- dling violations also put the Respondent’s license at risk. ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 5 identify legitimate grounds for which it could impose dis- cipline, but to persuade that it would have disciplined the employee even absent his or her protected activity.” See Wendt Corporation, 369 NLRB No. 135, slip. op. at 3 (2020) (emphasis in original), enfd. in part and remanded other grounds, 26 F.4th 1002 (D.C. Cir. 2022). As dis- cussed above, the evidence shows that the Respondent gave Hubbard more leniency than Keane and the Re- spondent has not proffered any evidence or explanation for why it did not give Keane the same leniency. There- fore, the Respondent has not established by a preponder- ance of the evidence that it would have disciplined and discharged Keane even absent her protected union activi- ties in light of the General Counsel’s strong showing of discriminatory motivation. C. Remedial Issues Having affirmed the judge’s conclusion that Keane’s discharge was unlawful, we affirm the judge’s award of reinstatement and backpay and his recommended notice- reading and union access remedies. Contrary to our dis- senting colleague, we believe that notice reading is appro- priate here because the Respondent engaged in serious un- fair labor practices that struck at the heart of employees’ Section 7 rights and, collectively, “sent a message to em- ployees that those who supported the Union did so at their peril.” See Bozzuto’s, Inc., 365 NLRB No. 146, slip op. at 5 (2017) (notice reading appropriate due to the timing and widespread nature of the violations and the participa- tion of high-ranking management officials), enf. denied in relevant part 927 F.3d 672, 693 (2d Cir. 2019). In partic- ular, as stated by the judge, “[t]he Board has long recog- nized that . . . unlawful terminations are destructive to Sec[.] 7 rights because they tend to instill fear in the re- maining employees that, ‘they will lose their employment if union activity persists,’” which “is especially true in cases such as this when the person terminated is the sole union organizer.” (citing A.P.R.A. Fuel Oil, 309 NLRB 19 We respectfully disagree with the dissent’s suggestion that the Board discontinue its practice of requiring a specific individual (or alter- natively a Board agent) to perform notice reading, a remedy which has been enforced by circuit courts. See e.g., HTH Corp. v. NLRB, 823 F.3d 668, 678 (2016) (enforcing a notice-reading remedy where the employer was given the option of having the notice read by the employer’s regional vice president or a Board agent); NLRB v. Homer D. Bronson Co., 273 Fed.Appx. 32, 39–40 (2d Cir. 2008) (enforcing an order requiring the employer’s president to perform, or be present for, the notice reading, because “[r]equiring a company official to read the notice to [the com- pany’s] employees will serve to make the Board’s corrective measures as pronounced as the improper threats were”). Here, requiring Cade to be present for the notice reading “serves as a minimal acknowledgement of the obligations that have been imposed by law and provides employ- ees with some assurance that their organizational rights will be respected in the future.” Salem Hospital Corp., 363 NLRB 515, 515 fn. 3 480, 481 (1992), enfd. 28 F.3d 103 (2d Cir. 1994)). See also Gavilon Grain, LLC, 371 NLRB No. 79, slip. op. at 2 (2022) (notice reading warranted where unfair labor prac- tices “sent a message to employees that those who sup- ported the [u]nion did so at their own peril.”). Addition- ally, in light of Human Resources Director Stephanie Cade’s direct and personal involvement in the unfair labor practices and the nature of that conduct, we will require that Cade (if still employed by the Respondent) read the notice or, at the Respondent’s option, be present for its reading by an agent of the Board. See, e.g., Gavilon Grain, supra, slip op. at 2; Bozzuto’s, supra, slip op. at 5.19 We also adopt the judge’s recommended union-access remedy. We reject the Respondent’s argument and the po- sition of our dissenting colleague that this remedy is un- warranted because there is no evidence that the Respond- ent prevented the Union from accessing employees. The judge’s remedy provides that the Respondent must give the Union access specifically to respond to any address the Respondent makes regarding union representation. As the judge stated, this remedy is tailored to address a situation where, as here, an employer deprived its employees of ac- cess to accurate information about a union, and that infor- mation is needed to “assure employees a free and fair choice regarding union representation.” See United Dairy Farmers Cooperative Assn., 242 NLRB 1026, 1029–1030 (1979) (issuing special remedies, including union access, under circumstances where conventional remedies were “inadequate to give [r]espondent’s employees sufficiently explicit reassurances and understanding of their rights un- der the Act”), enfd. in relevant part 633 F.2d 1054 (3d Cir. 1080). The judge’s recommended order did not specify the duration of this remedy. Consistent with prior deci- sions, we have specified a time period of 2 years or until Board certification after a free and fair election, whichever comes first. See, e.g., Stern Produce Co., 368 NLRB No. 31, slip. op. at 9 (2019).20 (2015) (internal quotation marks omitted), enfd. 808 F.3d 59 (D.C. Cir. 2015). 20 The dissent argues that the 2-year duration for this remedy, which the Board ordered in Stern Produce Co., supra, is unwarranted here be- cause the Respondent’s violations in this case were not as “numerous and egregious” as the employer’s violations in Stern Produce. However, the dissent has not cited any authority establishing that the duration of an access remedy depends on a minimum number of violations or level of “severity.” We further note that the access remedy here is narrower than the one imposed in Stern Produce, which, in addition to requiring the employer to give the union equal time and facilities to respond to any address made by the employer on the issue of union representation, also required the employer to grant the union reasonable access to bulletin boards and all other places where notices were posted and to provide the union with names and addresses of employees. We find that the more limited access remedy here and its 2-year duration are appropriately tai- lored to the violations in this case, which include threats, promises of 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Absolute Healthcare d/b/a Curaleaf Arizona, Gilbert, Arizona, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promising employees benefits to discourage them from supporting United Food and Commercial Workers Local 99 (the Union) or any other labor organization. (b) Creating the impression that it is engaged in surveil- lance of its employees’ union or other protected concerted activities. (c) Threatening employees with loss of tips if they se- lect the Union as their bargaining representative. (d) Discharging or otherwise discriminating against employees for supporting the Union or any other labor or- ganization. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Anissa Y. Keane full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Anissa Y. Keane whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against her, in the manner set forth in the remedy section of the judge’s decision. (c) Compensate Anissa Y. Keane for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 28, within 21 days of the date of the amount of backpay is fixed, either by agreement or Board order, a report allocat- ing the backpay award to the appropriate calendar year. (d) File with the Regional Director for Region 28, within 21 days of the date the amount the backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a benefits, the impression of surveillance, and the discharge of the em- ployee who was the public face of the union campaign. Keane’s dis- charge necessarily deprived the Respondent’s other employees of their main, daily source of information about the Union, at least from her dis- charge in August 2020 until she is offered interim reinstatement pursuant to the court’s June 23, 2022 order in the 10(j) proceeding–a period that, at a minimum, is almost 2 years. 21 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 proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a copy of Anissa Keane’s corresponding W-2 forms reflect- ing the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter, notify the employee in writing that this has been done and that the discharge will not be used against her in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Keane, and within 3 days thereafter, notify Keane in writ- ing that this has been done and that the unlawful discharge will not be used against her in any way. (h) Post at its Gilbert, Arizona facility copies of the at- tached notice marked “Appendix.”21 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. The Respondent shall take reasonable steps 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 em- ployees employed by the Respondent at any time since July 27, 2020. 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 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.” ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 7 (i) Hold a meeting or meetings during work time at its facility in Gilbert, Arizona, scheduled to ensure the widest possible attendance of employees, at which the attached notice marked “Appendix” shall be read to employees by Stephanie Cade (or an equally high-ranking management official if the Respondent no longer employs Cade), in the presence of a Board Agent and an agent of the Union if the Region or the Union so desires, or, at the Respondent’s option, by a Board agent in the presence of Stephanie Cade and, if the Union so desires, the presence of an agent of the Union. (j) Provide the Union with notice of, and equal time and facilities to respond to, any address made by the Respond- ent to employees on the question of union representation, for a period of 2 years from the date the notice is posted, or until the Regional Director has issued an appropriate certification following a free and fair election, whichever comes first. (k) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 8, 2022 ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER RING, dissenting. Before medical marijuana is sold to a patient in the State of Arizona, state law requires the employee who conducts the transaction to ensure (1) that the medical marijuana identification card presented to the employee is valid, (2) that the person presenting the identification card is the per- son identified on the card, and (3) that the amount of ma- rijuana to be sold would not cause the patient to exceed the statutory limit on amounts purchased within any 14- day period.1 The employee determines whether a sale would cause a patient to exceed the statutory limit by checking the patient’s recent purchases in a statewide medical marijuana electronic verification system, in which all medical marijuana sales must be recorded. The 1 Arizona Revised Statutes 36-2806.02(A). These requirements are also set forth in the Medical Marijuana Inspection Sheet issued by the Respondent refers to entering sales into the statewide sys- tem as “booking the allotment.” On April 26, 2020, Charging Party Anissa Keane, an employee at the Respondent’s Gilbert, Arizona facility, sold marijuana to a patient without checking his or her medical marijuana card, violating statutory requirements 1 and 2. She also failed to book the allotment, which in- terfered with effective enforcement of statutory require- ment 3 and put the Respondent’s license at risk. On July 5, 2020, Keane violated statutory requirements 1 and 2 again by selling marijuana to a woman who presented an expired medical marijuana card issued to a man. Despite these egregious lapses, the Respondent proceeded through every step in its progressive discipline system before dis- charging Keane, even though its progressive discipline policy permits it to combine or skip disciplinary steps. Keane was the leader of a union organizing effort among employees at the Gilbert dispensary. The majority finds that her union activity was a motivating factor in the Respondent’s decision to discharge her, and I will assume for argument’s sake that they are correct. The majority also finds that the Respondent failed to mount a successful defense to the allegation that Keane’s discharge violated Section 8(a)(3). Here, my colleagues and I part ways. I would find the Respondent showed that it would have dis- charged Keane regardless of her union activity. Moreo- ver, even assuming Keane’s discharge was unlawful, the extraordinary remedies the majority orders—notice read- ing and union access—would still be unwarranted. Ac- cordingly, I respectfully dissent. Facts The Respondent operates medical marijuana dispensa- ries in the State of Arizona, including a facility in Gilbert, Arizona, where Anissa Keane worked as a “Budtender.” It maintains an employee handbook with a four-step pro- gressive discipline policy—verbal warning, written warn- ing, final written warning, discharge—but the Respondent reserves the right to combine or skip steps based on the facts of each situation. Due to the nature of its business, the Respondent oper- ates on a cash-only basis. On April 10, 2020,2 Keane re- ceived a verbal warning for a shortage of $10 in her cash drawer. Although the discipline was expressly for this sin- gle cash shortage, record evidence indicates that manage- ment decided to issue the discipline because Keane previ- ously had committed multiple infractions. In an April 28 email addressing subsequent performance failures on Keane’s part, the manager of the Gilbert facility, Tyler Bureau of Special Licensing in the Arizona Department of Health Ser- vices. 2 All dates refer to 2020 unless otherwise noted. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Neier, stated: “I gave Anissa a verbal coaching on 4/10 because my inventory leads had connected her to several . . . audit discrepancies after reviewing tape.”3 On May 1, Keane received a written warning for a trans- action involving a first-time patient in which Keane com- mitted no fewer than six infractions. Specifically, Keane (1) failed to check the patient’s medical marijuana identi- fication card; (2) failed to give the patient a free quarter- ounce of marijuana under the store’s “buy one get one free” incentive for first-time patients; (3) charged the pa- tient for a quarter-ounce of “Mango Kush” but gave the patient an eighth-ounce; (4) rang up the sale to the profile of another patient; (5) gave the patient a discount for “loy- alty points” the patient, as a first-time patient, could not possibly have; and (6) failed to “book the allotment,” i.e., to enter the transaction into the statewide medical mariju- ana electronic verification system.4 Regarding this sale, Neier stated in an email to District Manager Andrew Hol- stein and Human Resources Director Stephanie Cade: “In my 4 years of management I have never come across a transaction that is quite this bad.” Neier also noted that Keane’s failure to book the allotment “puts our license at risk.” Neier asked for “feedback on whether I should go further than a write-up,” but Holstein told Neier to follow the progressive discipline policy and issue a written warn- ing. Nevertheless, Holstein called the sale “a night mare [sic] transaction.” On July 5, Keane sold marijuana to a woman who pre- sented an expired medical marijuana card issued to a man. On July 9, Neier sought approval from HR Director Cade to issue Keane a final written warning for this transaction. In his email, Neier stated, “I wrote Anissa up a couple months ago on a transaction that had more mistakes than I’ve ever seen and I suspect she may still be a large part of our store’s discrepancies. I would like to give her a final written warning or terminate her position at the Gilbert lo- cation based off of her putting our dispensary license at risk.” In her reply, Cade called the infraction “extreme” but nevertheless instructed Neier to follow the progressive discipline policy. “Because her last one was a verbal/writ- ten,”5 she wrote, “we will need to make this her last and 3 While Neier referred to Keane’s April 10 discipline as a verbal “coaching,” documentary evidence confirms that it was a verbal warn- ing. See Respondent’s Exhibit 7. 4 Keane’s written warning additionally cited a seventh infraction: “Patient wanted to buy [a quarter-ounce] of flower and get a [quarter- ounce] of flower for FTP BOGO [first-time patient buy one get one] but was charged for 3 [eighth-ounces].” In my view, this simply restates infractions (2) and (3) above in different words, so I will not count it as a separate infraction. 5 Apparently, Cade was unaware of Keane’s April 10 verbal warning and assumed that the verbal warning and written warning steps had been combined in Keane’s May 1 discipline, as the Respondent’s progressive discipline policy permits. final warning. After this one any infractions would result in termination.” On July 17, Keane received a final writ- ten warning for the July 5 incident. On July 6, the Respondent became aware that Keane was leading a union organizing campaign at the Gilbert facility. On August 22, Keane had a $20.00 shortage in her cash drawer. On August 28, the Respondent dis- charged Keane for this shortage in accordance with the progressive discipline policy. Discussion Keane’s discharge was lawful. Under Wright Line,6 the General Counsel has the initial burden of establishing that an employee’s union or pro- tected concerted activity was a motivating factor in an em- ployer’s decision to take adverse action against the em- ployee. The General Counsel meets this burden by show- ing that the employee engaged in union and/or protected concerted activity, that the employer had knowledge of that activity, and that the employer harbored animus against union or protected concerted activity. See, e.g., CSC Holdings, LLC, 368 NLRB No. 106, slip op. at 2 (2019); Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009); Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004).7 If the General Counsel makes this initial showing, the burden then shifts to the employer to prove that it would have taken the same action even if the employee had not en- gaged in protected activity. Wright Line, 251 NLRB at 1089. I will assume arguendo that the General Counsel met her initial Wright Line burden with respect to Keane’s dis- charge. Contrary to my colleagues, however, I believe the Respondent met its burden to demonstrate that it would have discharged Keane even in the absence of her union activities. The facts set forth above show that Keane was disci- plined on four separate occasions in accordance with the Respondent’s progressive discipline policy. Some of her infractions were quite grave. Thus, on April 26, Keane sold marijuana to a patient without checking the patient’s 6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). 7 “[T]he General Counsel does not invariably sustain his [or her] bur- den by producing—in addition to evidence of the employee’s protected activity and the employer’s knowledge thereof—any evidence of the em- ployer’s animus or hostility toward union or other protected activity. In- stead, the evidence must be sufficient to establish that a causal relation- ship exists between the employee’s protected activity and the employer’s adverse action against the employee.” Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 8 (2019). ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 9 medical marijuana identification card, and on July 5, she sold marijuana to a woman who presented an expired med- ical marijuana card issued to a man. By doing so, Keane violated state law as explained above.8 In addition, Keane failed to “book the allotment” for the April 26 sale, frus- trating enforcement of the statutory limit on the amount of medical marijuana an individual may purchase. Store Manager Neier stated that this last infraction “put[] our li- cense at risk.” District Manager Holstein amplified this point at the unfair labor practice hearing, testifying that, as a result of failing to book an allotment, “[t]he budtender, sales associate, would receive a number of violations. We would also have a ding on our license that could be finan- cial, or they could—they could just suspend our license or take it.” (Tr. 142.) Where, as here, an employer adheres to its progressive discipline policy, it sustains its Wright Line defense bur- den “absent evidence of disparate treatment.” Mid-Moun- tain Foods, Inc., 350 NLRB 742, 743 (2007) (finding that employer met its Wright Line defense burden where disci- pline imposed on employee was consistent with Respond- ent’s progressive discipline policy, and no instances of disparate treatment were identified). My colleagues find that Keane was treated disparately. Specifically, they find that she was not granted “the same leniency” accorded a comparator employee, Tyler Hubbard. On this basis, they conclude that the Respondent failed to sustain its Wright Line defense burden. I disagree. On April 23, 2019, Hubbard was issued a written warn- ing for $10 cash-drawer shortages on three separate dates.9 On May 1, 2019, Hubbard was issued a final written warn- ing noting cash-drawer shortages on five dates—three $10 shortages and two $20 shortages—but two of the five re- peated incidents previously listed in his April 23 disci- pline. Thus, Hubbard’s May 1 discipline documented three additional cash-drawer shortages. Finally, the Re- spondent discharged Hubbard for a $20 shortage on June 8 See supra fn. 1 and accompanying text. 9 There is no evidence that Hubbard previously had been issued a verbal warning. Apparently, the Respondent chose to skip a disciplinary step, as its progressive discipline policy permits. 10 General Counsel’s Exh. 5 includes Hubbard’s two written warn- ings, as well as his termination notice, all in 2019. The April 23 written warning states there were $10 cash shortages on March 8, March 29, and April 20. The May 1 final written warning lists the cash shortages as “3/5-$10, 3/8-$10, 3/30-$20, 4/20-$10, 4/27-$20[.]” Thus, the March 8 and April 20 shortages are listed twice. I also note that the April 23 warning lists a cash shortage on March 29, and the May 1 warning lists a cash shortage on March 30. Given that the May 1 discipline plainly repeats two infractions previously cited in the April 23 discipline, the proximity of March 29 and 30 suggests the possibility that the March 30 shortage listed on the May 1 discipline and the March 29 shortage listed on the April 23 discipline are one and the same, and that Hubbard com- mitted six infractions in all rather than seven. Nevertheless, I will 11, 2019. In total, Hubbard was warned for six infractions and discharged for a seventh.10 In comparison, on April 10, the Respondent issued Keane a verbal warning for a drawer shortage of $10 after her manager “had connected her to several audit discrep- ancies after reviewing tape.”11 Although the evidence does not permit a determination of just how many audit discrepancies Keane was responsible for prior to April 10, “several” means at least three. At minimum, then, three infractions underlay the verbal warning, even though she was only expressly disciplined for the fourth (if indeed it was only the fourth). On May 1, the Respondent issued Keane a written warning for a transaction on April 26, in the course of which she committed no fewer than six in- fractions, including ones that violated state law and put the Respondent’s license at risk. On July 17, the Respondent issued Keane a final written warning for a July 5 transac- tion in which she violated statutory requirements once again. Finally, on August 28, the Respondent discharged Keane for a $20 cash-drawer shortage that occurred on August 22. In total, Keane had at least two cash-drawer shortages; she was responsible for several audit discrep- ancies; she committed six infractions in a single transac- tion, including violations of state law; and she violated state law again in another transaction. Yet my colleagues find that Keane was treated more harshly than Hubbard. To the contrary, a fair comparison shows that if anything, she was treated more leniently.12 The majority relies on Assistant Store Manager Cook’s statement to Keane that it would take “at least four cash handling incidents” to be discharged. The majority acknowledges the Respondent’s progressive discipline chart, which is in evidence, yet they give credence to a low-level manager’s offhand comment misdescribing it. The chart covers all discipline; it is not limited to disci- pline for “cash handling incidents.” assume two separate shortages on consecutive days, and therefore that Hubbard had a total of seven cash-drawer shortages. 11 The majority challenges my reliance on Neier’s April 28 email statement that inventory control leads had linked Keane to several audit discrepancies, calling the statement unsubstantiated hearsay. The Board, however, may rely on hearsay if it is “rationally probative in force and . . . corroborated by something more than the slightest amount of other evidence.” Meyers Transport of New York, Inc., 338 NLRB 958, 969 (2003). Neier’s email statement is probative of Keane’s negligence, if not worse, and it is corroborated by undisputed evidence of her negli- gence in her April 26 “night mare transaction” and the July 5 incident in which she sold marijuana to a woman who presented an expired medical marijuana card issued to a man. 12 The judge’s disparate-treatment analysis is flawed, based as it is on his erroneous finding that Keane “had not had any incidents during the entirety of 2020 prior to the $20 error” on August 22. As the majority recognizes, the judge is clearly mistaken. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, the majority claims that “both Hubbard’s con- duct (7 cash-handling violations) and Keane’s conduct (4 transactions involving a mix of cash-handling and non- cash handling violations) were equally severe because both Hubbard’s and Keane’s conduct implicated compli- ance issues set forth in the Arizona Department of Health Services’ Medical Marijuana Inspection Sheet.” Their analysis is faulty in two respects. First, their misleading numerical comparison—Hubbard seven, Keane four— conveniently disregards the fact that one of Keane’s “four” involved multiple infractions, and that multiple au- dit discrepancies underlay a second. More seriously, how- ever, while Keane’s misconduct directly implicated “com- pliance issues set forth in the Arizona Department of Health Services’ Medical Marijuana Inspection Sheet,” Hubbard’s did not. The Medical Marijuana Inspection Sheet, admitted into the record as Respondent’s Exhibit 1, says nothing about how cash is to be handled or cash- drawer shortages addressed. That issue is addressed in Respondent’s Exhibit 4, a Curaleaf policy document titled “Cash Handling.” Item 5.6.1 in that document provides that “[a]ny cash discrepancy +/- $5 will need to be inves- tigated and considered for disciplinary action.” Thus, Hubbard’s infractions were limited to violations of Cura- leaf policy, whereas Keane’s included violations of state law.13 Based on the foregoing, I would reverse the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging employee Anissa Keane. The Remedies the Majority Orders Are Unwarranted. Because Keane was lawfully discharged, she is not en- titled to reinstatement or backpay. But even assuming Keane was unlawfully discharged, I believe the extraordi- nary remedies the majority orders—notice reading and un- ion access—are unwarranted. I adhere to the Board’s longstanding practice of treating notice reading as an ex- traordinary remedy, reserved for cases involving viola- tions of the Act “‘so numerous, pervasive, and outra- geous’” that a reading of the remedial notice is “necessary ‘to dissipate fully the coercive effects of the unfair labor practices found.’” Federated Logistics & Operations, 340 NLRB 255, 256 (2003) (quoting Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995)), review denied 400 F.3d 920 (D.C. Cir. 2005). A single 8(a)(3) violation and a few 13 The majority strains unsuccessfully to equate the severity of Keane’s transgressions with Hubbard’s. They point to language in the Inspection Sheet that addresses inventory controls. But there is no nec- essary correlation between cash-drawer shortages and inventory discrep- ancies. A cash-drawer shortage may reflect an error in making change or petty theft, with no inventory missing. The majority also points to language in the Arizona Administrative Code—” on which the Inspec- tion Sheet is based,” they say—that addresses accounting procedures, but 8(a)(1) violations do not remotely justify a notice-reading remedy under this exacting standard. But even if such a remedy were justified here, I would dissent from my col- leagues’ decision to require a specific named individual— Human Resources Director Stephanie Cade—to perform the reading. For reasons I have previously explained, the Board should abandon this practice. See North Texas In- vestment Group d/b/a Whitehawk Worldwide, 371 NLRB No. 122, slip op. at 3 fn. 12 (2022) (Member Ring, dis- senting in relevant part). Finally, the union-access remedy the majority orders is utterly unwarranted. My colleagues justify this remedy on the basis that the Respondent “deprived its employees of access to accurate information about a union.” But there is no evidence that UFCW Local 99 was rendered incapa- ble of communicating with the Respondent’s employees by Keane’s discharge. See Sysco Grand Rapids, LLC v. NLRB, 825 Fed. Appx. 348, 360 (6th Cir. 2020) (refusing to enforce union-access remedy where no party had shown that Sysco prevented the union from reaching its employ- ees). Besides, the majority orders the Respondent to rein- state Keane, so Local 99 can go right back to using her as its line of communication with the Respondent’s employ- ees, rendering a union-access remedy entirely unneces- sary. Going even further, the majority sets a duration of two years for this remedy, citing Stern Produce Co., 368 NLRB No. 31 (2019), where the employer’s numerous and egregious unfair labor practices likely would have warranted a Gissel bargaining order had not the passage of time rendered such an order unenforceable. This case is nothing like Stern Produce. CONCLUSION Keane violated state law and put the Respondent’s med- ical marijuana dispensary license at risk. Nevertheless, even though the Respondent could have skipped steps in its progressive discipline system, it did not, giving Keane every reasonable opportunity to keep her job. My col- leagues acknowledge this undisputed fact, as they must, but they conclude that her discharge was unlawful all the same. They base this conclusion on two key findings: Keane’s and Hubbard’s infractions equally “implicated compliance issues” for the Respondent under state law, and Keane was treated more harshly than Hubbard. As I have shown, these findings are simply wrong. Keane was they cannot dispute that the Inspection Sheet itself says nothing about such procedures, let alone how cash-drawer shortages are to be handled. To be sure, accurate cash handling helps ensure compliance with state law, as Liam Davis, the Respondent’s director of compliance, testified. At best for the majority’s case, then, Hubbard’s errors indirectly impli- cated compliance with state law, whereas Keane directly violated state law. Her transgressions were of a different order of magnitude than Hub- bard’s. ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 11 not treated disparately, and her discharge was lawful. Ac- cordingly, I respectfully dissent. Dated, Washington, D.C. December 8, 2022 ______________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT promise benefits to you by telling you that you will obtain increased employee discounts in order to discourage you from supporting the Union. WE WILL NOT create the impression that we are engaged in surveillance of your union or other protected concerted activities. WE WILL NOT threaten you with losing your tip compen- sation if you select the Union as your bargaining repre- sentative. WE WILL NOT discharge or otherwise discriminate against any of you for supporting the Union or any other labor organization. WE WILL NOT in any like or related manner interfere with the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Anissa Keane full reinstatement to her former job or, if the job no longer exists, to a substantially equiv- alent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Anissa Keane whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against her, less any net interim earnings, plus interest, and WE WILL also make her whole for reasonable search-for work and interim employment expenses, plus interest. WE WILL compensate Anissa Keane for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 28, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board Order, a report allocating the backpay award to the appropriate calendar year. WE WILL file with the Regional Director for Region 28, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of the backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any references to the unlaw- ful termination of Anissa Keane, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the unlawful termination will not be used against her in any way. WE WILL provide the Union with notice of, and equal time and facilities to respond to, any address we make to you on the question of union representation, for a period of 2 years from the date the notice is posted, or until the Regional Director has issued an appropriate certification following a free and fair election, whichever comes first. ABSOLUTE HEALTHCARE D/B/A CURALEAF The Board’s decision can be found at www.nlrb.gov/case/28-CA-267540 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. Katherine E. Leung, Esq., for the General Counsel. Alan I. Model, Esq. (Littler Mendelson, P.C.), for the Respond- ent. DECISION STATEMENT OF THE CASE DICKIE MONTEMAYOR, Administrative Law Judge. This case 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was tried before me on June 15 and 16, 2021, via the Zoom for Government videoconferencing platform. Charging Party filed a charge on October 13, 2020, and an amended charge on De- cember 28, 2020. A complaint and notice of hearing was issued January 20, 2021. The complaint alleged that the Respondent engaged in unlawful activity in violation of Section 8(a)(3) and (1) of the Act (See complaint pars. 5 and 6) by creating an im- pression that employees were under surveillance, threatened em- ployees with losing tips if they formed a union, promised em- ployees benefits if they did not form a union, and discharging Keane for allegedly engaging in protected and concerted activi- ties. Respondent on February 2, 2021, filed an answer denying that it violated the Act. In its answer Respondent asserted that the Acting General Counsel was acting ultra vires and contrary to Humphrey’s Executor v. U.S, 295 U.S. 602 (1935).1 On Sep- tember 20, 2021, a Notice of Ratification was issued and signed by the General Counsel. A separate Notice of Ratification was signed and issued on December 14, 2021, ratifying the continued prosecution of the complaint and all actions taken after the re- moval of the former General Counsel. Each Notice of Ratifica- tion was served on the parties and is by this reference made part of the official trial record. At the trial in this matter, the parties were given full oppor- tunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. On August 4, 2021, the parties filed briefs in the matter. I carefully observed the demeanor of witnesses as they testified, and I rely on those observations here. I have studied the whole record, including the post hearing briefs, and based upon the detailed findings and analysis below, I conclude that the Respondent violated the Act essentially as alleged. FINDINGS OF FACT JURISDICTION The complaint alleges, and I find that 1. The charge in this proceeding was filed by Keane on Octo- ber 13, 2020, and a copy was served on Respondent by U.S. mail on October 14, 2020. 2. The amended charge in this proceeding was filed by Keane on December 28, 2020, and a copy was served on Respondent by U.S. mail on December 29, 2020. 3. At all material times, Respondent has been a corporation with an office and place of business in Gilbert, Arizona (Re- spondent’s facility), and has been engaged in operating a can- nabis-related dispensary providing adult use and medical mari- juana products for its patients and customers. 4. During the 12-month period ending October 13, 2020, Re- spondent, in conducting its operations described above in par- agraph 2(a), purchased and received at Respondent’s facility goods valued in excess of $50,000 directly from points outside the State of Arizona. 5. In conducting its operations during the 12-month period ending October 13, 2020, Respondent derived gross revenues in excess of $500,000. 1 The Board has since rejected this very assertion which compels a conclusion that Respondent’s arguments surrounding the validity of the appointment of the General Counsel are without merit. See Aakash, Inc. 6. At all material times, Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 7. At all material times, United Food and Commercial Work- ers Union, Local 99 (the Union) has been a labor organization within the meaning of Section 2(5) of the Act. 8. At all material times, the following individuals held the po- sitions set forth opposite their respective names and have been supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act: Stephanie Cade Human Resource Manager Katie Cooke — Assistant Store Manager Tyler Neier — General Manager Tranika Riley — Assistant Store Manager Bryce Scaggs — Assistant Store Manager ALLEGED UNFAIR LABOR PRACTICES Respondent operates cannabis dispensaries throughout the United States including eight in Arizona. The industry in Ari- zona is highly regulated with the Arizona Department of Health, Arizona Department of Revenue, Arizona Department of Envi- ronmental Services, Weights and Measures as well as the spe- cific city and county regulations applicable to the particular dis- pensary. Charging Party Anissa Keane was employed by Re- spondent for approximately 1-1/2 years. She had previously worked 1-1/2 years for Emerald which was acquired by Re- spondent in June of 2019. In total, she had been employed at the facility for approximately 3 years until her termination of August 28, 2020. At all times while employed at Respondent’s facility, she held the position of Bud Tender. As a Bud Tender, she was responsible for selling Marijuana, as well as stocking and clean- ing the store. In November of 2019, she became interested in organizing a union and reached out to officials of the United Food and Com- mercial Workers Local 99. She called the Union and spoke to a union representative about organizing at the store. She soon thereafter became the head campaigner at the store. She was in direct contact with union officials and began in earnest an at- tempt to organize the workers at her store. To this end she had conversations with most but not all workers regarding unioniz- ing. The focus of her discussions were the benefits of unioniza- tion especially as it related to COVID-19 safety measures. Among the items discussed were the installation of plexiglass, Personal Protective Equipment and hazard pay for the workers who were front line workers with direct face to face customer contacts. The Employer became aware of her activities and on July 6, 2020, at 12:38 p.m. On this date, Tyler Neier, the general man- ager emailed Stephanie Cade, the director of human resources for Arizona and advised her, “it was just brought to my attention that Anissa Keane has been talking to some of the Associates about unionizing the dispensary and asking them if they would d/b/a Park Central Care & Rehabilitation Center, 371 NLRB No. 46 (2021) (relying on Collins v. Yellen, 141 S.Ct. 1761 (2021). ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 13 sign a petition. (GC Exh. 2, p. 11). He sent a copy of the email to Andrew Holstein, Retail Operations District Manager, and Keith Morris, District Manager. Cade forwarded the email to Greg Fredricks, the vice presi- dent of human resources with the question “thoughts on next steps if any?” (GC Exh. 2, p. 10–11). He responded by forward- ing the email to Amanda Hargreaves the vice president of human resources for the East Coast, and advising that he was “looping in Amanda, who has been leading the mitigation efforts in the East.” His email also contained the question,” have we provided managers training for Union avoidance in AZ?” (GC Exh. 2, p. 10.) Cade responded,” yes, we have provided the training. It was January.” (GC Exh. 2, p. 10.) Amanda Hargreaves responded to Cade asking, “Can you get some more information from Tyler without him going back and asking the employee? We need to know the context and details of how he found out and from who, what they said, and what the attitude was about it when it was told to us. This will help us determine our response. Also, how many employees work in this dispensary? What's your feeling on how engaged they are- how many do you think definitely would and would not support it, and anyone you're unsure of.” (GC Exh. 2, p. 10.) Cade Contacted Tyler Neier seeking the information re- quested by Hargreaves. He responded as follows: Kaitlin Cook was told by Jacob Games that Anissa Keane asked him to sign a petition and he said no. Jacob also said that Stephen Berumen stated that he is in favor of unions and would support it. Anissa was approaching it and selling it to Jacob that it would increase wages and benefits for the employees. We have 36 people including myself at the dispensary right now. It's really hard to say how many of them would be for or against it at this point. I know my 3 ASM's and 3 inventory leads would most likely be against it and of course myself. I'm not really sure where the bud tenders would side. Below is a list of all employees at the Gilbert location and where I would think they would side but I have not directly asked anyone and these are all assumptions. (GC Exh. 2, p. 12.) He attached to the email a table that contained the name of each employee and their position with a separate column titled: “In Favor of Union.” The list identified three employees as in favor of the union and five as “maybe.” (GC Exh. 2, p. 13.) Cade communicated this information in an email to Har- greaves stating, Kaitlin Cook (ASM Gilbert) was told by Jacob Games (Budtender) that Anissa Keane (Budtender) asked him to sign a petition and he said no. Jacob also said that Stephen Berumen (Budtender) stated that he is in favor of unions and would sup- port it. Anissa was approaching it and selling it to Jacob that it would increase wages and benefits for the employees. We have 36 people in the dispensary right now. It's really hard to say how many of them would be for or against it at this point. Best Guess maybe 5-8 employees out of the 37 would be in favor. This is what Tyler said to me. Let me know your thoughts. Hargreaves responded by asking Cade to schedule a call to “talk through next steps.” (GC Exh. 2, p. 9.) On July 11, 2020, Kaitlan Cook sent an email to Cade, Cottrell (president), and Holstein, copying Neier, Bryce Skaggs (ASM), and Tranica Reilly (ASM) advising of the following: This afternoon an employee disclosed some information about Anissa and what she is trying to accomplish with this union. I was told that she is working with UFCW99 and these are the things she is advocating for: • Pay be raised to $18/hr. including tips • They would like to be paid Hazard Pay and back hazard Pay for the last couple of months. • She is saying they can get better insurance for only $10 a paycheck • They would like some control over the products that we carry, I am not sure what she means exactly but I would assume she would like to bring in new brands? • The last thing she mentioned was wanting Tranica Reilly to take management classes, again I am not exactly sure what she means here just relaying the information I was given. This is all the information that she had sent in a text to at least one employee. She also stated that she has 12 of 18 required signatures, I am not sure how many she has now but that is what she told this employee. Please let me know how you would like us to proceed. (GC Exh. 2, p. 1). In late July 2020, Keane sent an information sheet to her coworkers. (GC. Exh. 2, p. 6–8.) The document was constructed in a question and answer format, briefly discussing various top- ics including: (1) What is a union? (2) What will the union be fighting for in our store? (3) How much union dues will be? (4) What are some of the benefits of unionizing? (5) Will I no longer be able to go to management directly with problems? (6) What is the grievance process? (7) What Union would we be working with? (8) Does every Curaleaf unionize with us? (9) What were those cards that I handed out for you to sign? I did not get a card, but I want to contact the union with specific questions? (10) Are there any fun benefits to joining the UFCW99? (GC. Exh. 2, p. 6–8.) The cards referenced in the document referred to union authorization cards which Keane began distributing and collect- ing for the purposes of filing a petition for a NLRB supervised election. On July 27, 2020, Neier emailed Stephanie Cade, Andrew Holstein, Keith Morris, Steve Cottrell the president, a document titled: “Union Update” forwarding the Google Doc information. The email noted that “someone sent this . . . and said that Anissa sent it to everyone tonight.” (GC Exh. 2, p. 5.) Sometime before July 29, 2020, employees were notified that they were to attend a mandatory meeting regarding the Union. On July 29, 2020, Skaggs sent an email to all employees “re- minding” them “to attend the Union meeting.” (GC Exh. 2, p. 3.) On July 31, 2020, Skaggs again sent out a reminder stating, “to- morrow is the Union mandatory meeting noting specifically, “if you are off, you must come to one or the other meetings.” (GC Exh. 2, p. 4.) On July 31, 2020, the meeting which Cade described as an “education meeting” was held at 7 a.m. It was one of two meet- ing held that day. Present during the meeting was Cade, Holstein, and Neier and approximately 20 other employees. Included 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD among the group of employees was Keane. During the meeting Cade spoke to employees and presented a power point presenta- tion that was prepared by Hargreaves. The power point presen- tation set forth Curaleaf’s official position as follows: We feel the union does not provide enough value to account for the cost and lack of flexibility. Unions and workplace flexibility are often not consistent Our patients’ experiences are not improved due to possible work inflexible rules and work stoppages No one should have to pay union dues to work for Curaleaf. (GC Exh. 3, p. 2.) During the power point presentation, she made several state- ments all of which were designed to sway employees away from supporting the Union. Keane described the statements as fol- lows: She discussed how, if we signed the card, we're basically sign- ing away our freedom to talk to management. She talked about how—she talked about how even if we didn't sign the union cards, if the Union went through, we would still all have to be- come members of the Union. She talked about how the union reps were going to come to our house even without our permis- sion to kind of force us to sign the cards, how the Union was a for-profit place that was only trying to get us organized so they could make money off of us. She talked about how once if we organized and—try to get us better pay, we would lose our tips. (Tr. 61.) She further recounted that Cade in response to concerns raised by employees about COVID-19 hazard pay indicated that they would receive “better discounts2.” (Tr. 62.) Lastly, she recalled that Cade “did mention that the person trying to organize the Un- ion was just trying to get a job with the Union because she would get paid more. And then she just talked about how once we or- ganized a union, we wouldn't have direct contact with manage- ment anymore.” (Tr. 62.) On August 28, 2020, 28 days after the mandatory meeting, Keane was terminated from her employment. The circumstances relating to the termination are not in dispute. On August 23, 2020, Cook informed Keane that she violated the cash handling policy and that she had a $20 discrepancy. (Tr. 38, 68, 147, 149– 150; GC Exh. 4.) When advised of the discrepancy Keane ex- pressed concern to Cook inquiring whether she would be fired to which Cook responded that Keane would need to have at least four cash handling problems to be fired. (Tr. 64.) Up to that point in 2020, Keane had not had any cash discrepancy incidents. On August 28, 2020, Keane was told to meet with Cade in a conference room. During the meeting Cade informed her that because this was her third write up, she would be terminated. Keane advised her that the week prior she was told by Cook that she “would have to have four cash handling problems before [she] was fired.” (Tr. 64.) 2 In this context “better discounts” referred to employee discounts to purchase marijuana which at the time prior to the statements by Cade were set at 20 percent. (Tr. 66.) ANALYSIS 1. Cade’s promise of increased employee discounts The promise of benefits to influence an organizing campaign can violate Section 8(a)(1). In NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), the court noted that “the broad purpose of sec- tion 8(a)(1) is to establish ‘the right of employees to organize for mutual aid without employer interference.’ Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945). We have no doubt that it prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is under- taken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” The Court also noted, “the danger inherent in well-timed increases in benefits is the suggestion of a fist in- side the velvet glove. Employees are not likely to miss the infer- ence that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.” The Court concluded its reasoning by noting, “the beneficence of an employer is likely to be ephemeral if prompted by a threat of unionization which is subsequently re- moved. Insulating the right of collective organization from cal- culated good will of this sort deprives employees of little that has lasting value.” Id. 406. The Board has held that an inference of improper motivation and interference with free choice can be drawn from the evidence presented and from Respondent’s failure to establish a legitimate reason for the timing of its actions. Holly Farms, 311 NLRB 273, 274 (1993), citing B &D Plastics, 302 NLRB 245 (1991); Speco Corp., 298 NLRB 439 fn. 2(1990). Respondent did not offer any legitimate reason for the timing of its promise and instead denied that the statement regarding improved discounts was ever made. In this regard, I credit the testimony of Keane as being truthful in relation to whether the statement was made over the general denials and rationalizations of Cade and Holstein. Moreover, the record established that dur- ing her testimony Cade made statements which were demonstra- bly false. For example, she testified that employees were not required to attend the meeting, however the Employer’s own emails show that the meeting was not voluntary. (Tr. 34, GC Exh. 2, p. 4.) The Union Mandatory Meeting as it was referenced in Skaggs’ email to all employees was not a regularly scheduled event but convened in response to the organizing activities of Keane. The meeting was not called by the employees, nor were they given the option of attending. The meeting hadn’t been scheduled to discuss employees concerns about COVID-19 safety or hazard pay but rather to express the Company’s anti- union position. This occurred at a time after the Employer’s sur- reptitious review of information contained in Keane’s private tel- ephonic communications to other employees which revealed that 12 out of 18 required signatures had been obtained by Keane. (GC Exh. 2, p. 1.) There was no showing that the increased ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 15 discount announcement would have been made at the same time even if there had been no union activity. A reasonable inference from the context and timing of the promise of a grant of improved employee discounts (during an organizing campaign which was close to obtaining 18 signa- tures) was that it was an attempt to impinge upon the employee’s freedom of choice for or against unionization. I therefore find that the promise of improved discounts at the Union Mandatory Meeting violated Section 8(a)(1) of the Act. 2. Cade’s threat of loss of tips The Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 616–620 (1969), held that an employer may lawfully com- municate to its employees “carefully phrased” predictions based on “objective facts” as to “demonstrably probable consequences beyond his control” that it believes unionization will have on the Company. However, the Court said, if there is “any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him,” the statement is a threat of retaliation” which violates Section 8(a)(1). In determining how employees might reasonably construe such communications, the Court em- phasized that “the economic dependence of employees on the employer” must be factored into the analysis. In evaluating whether statements of this kind violate Section 8(a)(1), the Board has long applied an objective standard to de- termine whether the remark would reasonably tend to interfere with the free exercise of employee rights, without regard to the motivation behind the remark. American Freightways Co., 124 NLRB 146, 147 (1959). See also Medeco Security Locks v. NLRB, 142 F.3d 733, 747 (4th Cir. 1998) (noting Federal court approval of this standard). Statements that “reasonably com- municate the views that a union cannot compel concessions in negotiations [or] guarantee the retention of all present benefits because such benefits are subject to bargaining” and thus “accu- rately reflect the bargaining process,” do not violate Section 8(a)(1). Pilliod of Mississippi, Inc., 275 NLRB 799 (1985). At the outset it is important to note that Cade denied making the statement that was attributed to her by Keane. I find Keane’s version of events to be more credible and believable and there- fore credit her version of events. As noted previously, Cade’s testimony on several occasions during the hearing was demon- strably false and/or inconsistent with documentary evidence. (Tr. 34, GC Exh. 2, p. 4.) Keane’s version of events is also more logically consistent. Keane testified that after the statement about the loss of tips was made by Cade, she challenged her. She tes- tified, “I started speaking up saying that that wasn't true, that I had seen a New York Curaleaf union document and they’re able to keep their tips. . . .” (Tr. 61.) It logically follows that Keane would not have challenged the truth of Cade’s statement if no such statement was made. Gissel counsels that economic dependence must be factored into the analysis. In the case of low wage workers, other than the employee’s salary, tips often are one of the most important 3 It is important to note that I do not find that Keane’s own belief that her challenge to Cade’s comments related to collective bargaining some- how insulates Respondent from liability. Prior coercive statements must be specifically disavowed and be accompanied by assurances against and substantial benefits. Applying the law to the facts presented, as it relates to threats of economic reprisal, it is clear that Cade’s comments were not “carefully phrased.” She unequivocally told the employees that they “would” lose their tips. This was a clear threat of economic reprisal with a degree of certainty tied di- rectly to unionization. See President Riverboat Casinos of Mis- souri Inc., 329 NLRB 77 (1999) (phrasing of a threat of loss of wages as a “possibility” violated the Act.).3 I therefore find that the threat that employees would lose tips violated Section 8(a)(1) of the Act. 3. Cade created the impression of surveillance The Board’s test for determining whether an employer has created an unlawful impression of surveillance is whether, “un- der all the relevant circumstances, reasonable employees would assume from the statement in question that their union or other protected activities had been placed under surveillance.” Fron- tier Telephone of Rochester, Inc., 344 NLRB 1270, 1276 (2005). Accord: Bridgestone Firestone South Carolina, 350 NLRB 526, 527 (2007). The standard is an objective one, based on the ra- tionale that “employees should be free to participate in union or- ganizing campaigns without the fear that members of manage- ment are peering over their shoulders, taking note of who is in- volved in union activities, and in what particular ways.” Flexsteel Industries, 311 NLRB 257 (1993). As noted previously, Keane testified that Cade stated during the Mandatory Union Meeting that the person trying to organize the Union was “just trying to get a job with the union because she would get paid more.” (Tr. 62.) Cade did not dispute that she made the statement. Evaluating the case against the Board’s standards it is important at the outset to note that the statement directly singles out Keane and by its very nature is an expression of animus and an attempt to place her in a negative light with her coworkers calling into question her motivations for attempting to organize. The statement referenced the organizer as “she,” but Cade did not disclose how she knew the organizer was a female. Keane had not disclosed to the Employer that she was organizing but other employees knew because she had directly contacted them. I find that under these circumstances a reasonable employee es- pecially one standing in Keane’s shoes would assume from the statement that; (1) the employer knew who the person organizing was and (2) since she didn’t tell them it would leave with her an impression of surveillance. An impression that other employees who were aware of Keane’s activities would also share. I there- fore find that the statement created an unlawful impression of surveillance and violated Section 8(a)(1) of the Act. 4. Keane’s discharge Section 8(a)(3) makes it “an unfair labor practice to discrimi- nate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization.” The Board applies the burden shifting analysis set forth in Wright Line, 251 NLRB 1083 future interference with employees’ Section 7 rights. Teksid Aluminum Foundry, 311 NLRB 711 fn. 2 (1993). Cade denied any statement was made and the record is devoid of any effort to disavow the statement. 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), in addressing alleged violations of Section 8(a)(3). To prove that a discharge violates the Act under Wright Line, the General Counsel must initially show that the employee’s Section 7 activity was a motivating factor in the em- ployer’s decision to discharge the employee. The elements re- quired to support this initial showing are union or other protected concerted activity by the employee, employer knowledge of that activity, and animus on the part of the employer. If the General Counsel makes such a showing, the burden of persuasion shifts to the employer to demonstrate that it would have taken the same adverse action even in the absence of the employee’s protected conduct. Wright Line, 251 NLRB at 1089; see also Manno Elec- tric, 321 NLRB 278, 280 fn. 12 (1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997), Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 1 (2019) (initial burden requires evidence of ani- mus to support finding that a causal relationship exists between the employee’s protected activity and the employer’s adverse ac- tion). Under certain circumstances, animus may be inferred from circumstantial evidence, based on the record as a whole. See Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992), Electrolux Home Products, 368 No. 34 (2019). Evidence is probative of unlawful motivation only if it adds support to a reasonable inference that the employee’s Sec- tion 7 activity was a motivating factor in the employer’s decision to impose discipline. General Motors LLC, 369 NLRB No. 127 (2020). It is undisputed that Keane engaged in union activity, the em- ployer was aware of that activity and Keane was discharged. Thus, the first two elements of the prima facie case have been met. The record also provides sufficient evidence of animus to establish the third element. Singling out Keane to malign her motivations for engaging in organizing efforts standing alone is sufficient evidence of animus directly related to her union activ- ities. The three unfair labor practice violations cited above viewed collectively are sufficient in and of themselves to estab- lish the requisite animus given their direct connection to union activity. In addition, the timing of her discharge is sufficient in and of itself to establish the requisite animus. The discharge was in fact effectuated less than a month after the Mandatory Union Meeting a timeframe in which the “temporal proximity” pro- vides evidence of a causal link between the employee’s union activity and loss of employment. Velox Express, Inc. 368 NLRB No. 61 (2019), Napoleon Cadillac of Libertyville, 367 NLRB No. 6 (2018). Further evidence of animus can be inferred from the disparate treatment she was afforded. Cade, without hesitation, set forth her version of company policy stating, “you get three chances with us and then it results in termination after that.” (Tr. 38.) This directly conflicted with what Keane was told by her super- visor. (Tr. 64.) It also conflicts with the documentary evidence of record. In fact, one employee who had five cash handling in- fractions within a matter of 2 months (including not one but two $20 violations) was not terminated and was only placed on final warning status. (GC Exh. 5.) On the other hand, Keane who had not had any incidents during the entirety of 2020 prior to the $20 error was terminated. The stark difference in treatment is readily apparent. This disparate treatment alone and in conjunction with the other evidence of animus is sufficient to establish the final element of the prima facie case. See Golden State Foods Corp., 340 NLRB 382, 384–386 (2003) (finding unlawful termination where employer seized upon reasons for discharge as a pretext for retaliating against employee because of union activism), see also Healthcare Emps. Union Local 399 v. NLRB, 463 F.3d 909, 922 (9th Cir. 2006) (evidence suggested that the employer “seized upon a pretext to mask an anti-union motivation).” Having established a prima facie case, the burden of persua- sion shifts to the employer to prove, as an affirmative defense, that it would have taken the same action even if the employee had not engaged in protected activity. Consolidated Bus Transit, 350 NLRB 1064, 1066 (2007). In is not sufficient for an em- ployer to merely present a legitimate reason for its action. It must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the pro- tected activity. Rhino Northwest, LLC, 369 NLRB No. 25, slip op. at 3 (2020). “In other words, a respondent must show that it would have taken the challenged adverse action in the absence of protected activity, not just that it could have done so.” Id. I find that Respondent has failed to meet its burden. Although it is true that the industry is highly regulated and cash handling policies and procedures may differ from other retail establish- ments, Respondent failed to meet its burden of persuasion given the stark evidence of disparate treatment of at least another em- ployee. Applying the same standards to Keane that were applied to at least one other employee suggests that but for her union activity she would have been afforded at least five opportunities to improve before even being given a written warning. Consid- ering these facts, Respondent’s arguments surrounding its reli- ance on policy related to strict regulatory requirements as justi- fication for its actions falls short of meeting its burden. See Limestone Apparel Corp., 255 NLRB 722 (1981). See Hobson Bearing International, 365 NLRB No. 73, slip op. at 1 fn. 1 (2017) (if the General Counsel makes his/her initial case, the em- ployer will be found to have violated the Act unless it meets its defense burden to prove that it would have taken the same action even in the absence of the Sec. 7 activity). I therefore find that the discharge of Keane violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent’s actions of terminating the Charging Party vi- olated Section 8(a)(3) and (1) of the Act. 2. Respondent’s threat to employees that they would lose their tips if they formed a union violated Section 8(a)(1) of the Act. 3. Respondent’s promise of benefits to employees if they did not form a union violated Section 8(a)(1) of the Act. 4. Respondent’s actions created an impression of surveillance when it singled out the sole female organizer and violated Sec- tion 8(a) (1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In addition, Respondent must also make ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 17 Anissa Y. Keane whole for any loss of earnings and other bene- fits incurred a result of Respondent’s unlawful discharge of her. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with King Soopers, Inc., 364 NLRB 1153 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), the Respondent shall also compensate the employee for her reason- able search-for work and interim employment expenses, if any, regardless of whether those expenses exceed interim earnings. Search-for-work and interim employment expenses shall be cal- culated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.4 Additionally, the Respondent shall compensate Anissa Y. Keane for the adverse tax consequences, if any, of receiving a lump sum backpay award, in accordance with Don Chavas LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), and file with the Regional Director for Region 28, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year for each affected employee in accordance with Ad- voServ of New Jersey, Inc., 363 NLRB 1324 (2016). The Re- gional Director will then assume responsibility for transmission of the report to the Social Security Administration at the appro- priate time and in the appropriate manner. In addition, pursuant to Cascades Containerboard Packaging, 370 NLRB No. 76 (2021), the Respondent will file with the Regional Director for Region 28 a copy of each backpay recipient’s corresponding W- 2 form(s) reflecting the backpay award. I also find that special remedies are required to dissipate the detrimental and lingering effects of the Respondent’s unfair la- bor practices. The Board has long recognized that such unlawful terminations are destructive to Section 7 rights because they tend to instill fear in the remaining employees that, “they will lose their employment if union activity persists.” A.P.R.A. Fuel Oil, 309 NLRB 480, 481 (1992), enfd. 28 F.3d 103 (2d. Cir. 1994). This is especially true in cases such as this when the person ter- minated is the sole union organizer. I shall order the Respondent to have the attached notice read aloud to the employees so that they “will fully perceive that the Respondent and its managers are bound by the requirements of the Act.” Federated Logistics & Operations, 340 NLRB 255, 258 (2003), review denied 400 F.3d 920, 929–930 (D.C. Cir. 2005). The Board has long held that the “public reading of the notice is an ‘effective but moderate way to let in a warming wind of information and, more important, reassurance.”’ United States Service Industries, 319 NLRB 231, 232 (1995) (quoting J.P. Ste- vens & Co. v. NLRB, 417 F.2d 533, 540 (5th Cir. 1969)), enfd. 107 F.3d 923 (D.C. Cir. 1997). Reassurance to employees that their rights under the Act will not be violated by the Respondent is of paramount importance given the timing of the unfair labor 4 The Board has yet to determine whether consequential damages would be a necessary component of make-whole relief and I have not included such as the question is still pending before the Board. See Thryv, Inc., 371 NLRB No. 37 (2021). practices in relation to the organizing efforts of Keane, the sole union organizer. I shall accordingly order the Respondent, dur- ing the time the required notice is posted, to convene the unit employees during working time at its Gilbert Arizona facility and have Cade (or, if she is no longer employed by the Respond- ent, by an equally high-ranking management official), in the presence of a Board agent and an agent of the Union if the Re- gion or the Union so desires, read the notice aloud to employees or, at the Respondent’s option, permit a Board agent, in the pres- ence of Cade to read the notice to the employees. See Bozzuto’s, Inc., 365 NLRB No. 146, slip op. at 5 (2017). During the reading of the notice, Cade (or, if she is no longer employed by the Re- spondent, by an equally high-ranking management official), shall advise any affected employee if during the surreptitious gathering of information from Keane’s private telephonic com- munications any employee’s identity and/ or communications re- garding union activity with Keane were revealed to Respondent. I shall additionally order the Respondent to give notice of, and equal time and facilities for the Union to respond to, any address made by the Respondent to its employees on the question of un- ion representation. I order these special remedies considering the significant and damaging nature of the Respondent’s unfair labor practices and the need to assure employees a free and fair choice regarding union representation. See Monfort of Colorado, 298 NLRB 73, 86 (1990), enfd. in relevant part 965 F.2d 1538 (10th Cir. 1992); United Dairy Farmers Cooperative Assn., supra, 242 NLRB at 1029. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER The Respondent, Absolute Healthcare d/b/a Curaleaf Arizona, [Gilbert, Arizona] its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promising increased benefits including improved em- ployee discounts to discourage employees from selecting union representation. (b) Creating the impression among employees that their union activities are under surveillance. (c) Threatening employees with loss of tips if they choose to be represented by the union. (d) Discharging or otherwise discriminating against employ- ees for supporting the union or any other labor organization. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Anissa Y. Keane full reinstatement to her former job, or, if that job credibly no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or priv- ileges previously enjoyed. 5 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. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Make Anissa Y. Keane whole for any loss of earnings and other benefits suffered, and search-for-work and interim employ- ment expenses incurred, because of the discrimination against her, in the manner set forth in the remedy section of this decision. (c) Compensate Anissa Y. Keane for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards. (d) Within 21 days of the date the amount of backpay is fixed either by agreement or Board order, or such additional time as the Regional Director may allow for good cause shown, file with the Regional Director for Region 28 a copy of a report allocating the backpay awards to the appropriate calendar years for the af- fected employee. (e) File with the Regional Director for Region 28 a copy of the backpay recipient’s corresponding W-2 forms reflecting the backpay award. (f) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (g) Remove from Respondent’s files, any and all records of the discharge of Keane and within 3 days thereafter, notify Keane in writing that the action was taken, and that the materials removed will not be used as a basis for any future personnel ac- tion against her or referred to in response to any inquiry from any employer, employment agency, unemployment insurance office, or reference seeker, or otherwise used against her. (h) Within 14 days after service by the Region, post at its fa- cility in Gilbert, Arizona copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Re- spondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees 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. In the event that, during the pen- dency of these proceedings, the Respondent has gone out of busi- ness or closed the facility involved in theseproceedings, the Re- spondent 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 24, 2020. (i) Convene a meeting at its Gilbert Arizona facility during working time, scheduled to ensure the widest possible attend- ance, at which the notices to employees will be read to all em- ployees, supervisors, and managers in accordance with the order set forth above. 6 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 (j) Give the Union notice and equal time and facilities to re- spond to any address made by Respondent to employees regard- ing the issue of union representation. (k) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. February 8, 2022. 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT interfere with, restrain, or coerce you in the ex- ercise of the above rights. WE WILL NOT make it appear that we are watching you engage in union activities on behalf of United Food and Commercial Workers Union, Local 99 (the Union) or any other labor organi- zation. WE WILL NOT threaten you with losing your tip compensation if you unionize. WE WILL NOT promise you benefits in order to stop you from unionizing. WE WILL NOT fire you because of your union membership, ac- tivities, sympathies, and/or support for the Union or any other labor organization. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL offer ANISSA Y. KEANE (KEANE) immediate and full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position, without any loss to her sen- iority rights or any other privileges previously enjoyed because we discharged her. WE WILL make whole KEANE for any loss of earnings and other benefits resulting from her termination, less any interim earnings, plus interest, plus reasonable search-for-work and in- terim employment expenses. WE WILL file with the Regional Director for Region 28 copies of W-2 forms reflecting KEANE’S backpay award. WE WILL within 14 days, remove from our files, any and all United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA 19 records of the discharge of KEANE and WE WILL within 3 days thereafter, notify KEANE in writing that we have taken this ac- tion, and that the materials removed will not be used as a basis for any future personnel action against her or referred to in re- sponse to any inquiry from any employer, employment agency, unemployment insurance office, or reference seeker, or other- wise used against her. ABSOLUTE HEALTHCARE D/B/A CURALEAF ARIZONA The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/28-CA-267540 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.