Titan Health, LLC d/b/a Tweedleaf

372 NLRB No. 96 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. Titan Health, LLC d/b/a Tweedleaf and United Food and Commercial Workers, Local 7. Case 27– CA–277309 June 9, 2023 DECISION AND ORDER BY MEMBERS KAPLAN, WILCOX, AND PROUTY The General Counsel seeks a default judgment in this case on the ground that Titan Health, LLC d/b/a Tweedleaf (the Respondent) has failed to file an answer to the complaint. Upon a charge and amended charges filed by United Food and Commercial Workers, Local 7 (the Union) on May 18, 2021, August 17, 2021, and Sep- tember 14, 2022, the General Counsel issued a complaint and notice of hearing on June 9, 2022 (reissued on June 28, 2022, February 7, 2023, and March 10, 2023), against the Respondent, alleging that it has violated Sec- tion 8(a)(4), (3), and (1) of the Act. The Respondent failed to file an answer. On April 5, 2023, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On April 12, 2023, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On May 10, 2023, the Board reissued the order transferring the proceeding to the Board and Notice to Show Cause to ensure service on three additional Respondent addresses inadvertently omitted from the initial service. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the second reissued complaint af- firmatively states that unless an answer is received on or before March 24, 2023, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated March 27, 2023, advised the Respondent that unless an answer was received by April 3, 2023, a motion for default judgment would be filed. Neverthe- less, the Respondent failed to file an answer. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations of the complaint to be admitted as true, and we grant the Gen- eral Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a lim- ited liability company, with an office and principal place of business in Colorado Springs, Colorado and multiple facilities in and around Denver, Colorado, including a facility located at 5959 E. 39th Ave., Denver, Colorado (the Respondent’s 39th Ave. facility), where it is en- gaged in the cultivation and retail sale of cannabis for medicinal and recreational purposes. Within the past 12 months, the Respondent, in con- ducting its operations, derived gross revenues in excess of $500,000. Within the past 12 months, the Respondent purchased and received products, goods, and materials valued in excess of $5000 directly from points outside the State of Colorado. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES 1. At all material times, the following individuals held the positions set forth opposite their respective names and have been agents of the Respondent within the meaning of Section 2(13) of the Act: Christopher Jones – Director of Administration Nick Halloran – Cultivation Manager Shelby McDonald – Manager 2. (a) About February 19, 2021, the Respondent, by Manager Shelby McDonald, at the Respondent’s 39th Ave. facility, created the impression that employees’ union activities were under surveillance by telling em- ployees that they were seen going around getting em- ployees to sign Union cards. (b) About February 19, 2021, the Respondent, by Manager Shelby McDonald, at the Respondent’s 39th Ave. facility, told employees that it seemed like they were trying to start a little coup or something when they were engaging in union activities. (c) About March 5, 2021, the Respondent, by Manag- er Shelby McDonald, via text, threatened employees with job loss in the event of unionization. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 (d) About March 5, 2021, the Respondent, by Manag- er Shelby McDonald, via text, threatened employees with legal action and unspecified reprisals in order to discour- age union activities and/or membership. (e) About March 12, 2021, the Respondent, by Culti- vation Manager Nick Halloran, at the Respondent’s 39th Ave. facility, threatened employees with unspecified reprisals in order to discourage union activities and/or membership. (f) About March 27 or 28, 2021, the Respondent, by Director of Administration Christopher Jones, at the Re- spondent’s 39th Ave. facility, interrogated employees about their union activities. (g) About March 27 or 28, 2021, the Respondent, by Director of Administration Christopher Jones, at the Re- spondent’s 39th Ave. facility, solicited grievances and asked employees how they wanted their grievances re- solved in order to discourage union activities and/or membership. (h) About March 30, 2021, the Respondent, by Direc- tor of Administration Christopher Jones, at the Respond- ent’s 39th Ave. facility, promised to improve employees’ working conditions. (i) About March 30, 2021, the Respondent, by Direc- tor of Administration Christopher Jones, at the Respond- ent’s 39th Ave. facility, told employees that they were at war with the Respondent because of their union or pro- tected concerted activities. (j) About March 30, 2021, the Respondent, by Direc- tor of Administration Christopher Jones, at the Respond- ent’s 39th Ave. facility, told employees that it was futile for them to engage in union activities or protected activi- ties. (k) About March 30, 2021, the Respondent, by Direc- tor of Administration Christopher Jones, interrogated employees about their union and/or protected activities. (l) About March 30, 2021, the Respondent, by Direc- tor of Administration Christopher Jones, at the Respond- ent’s 39th Ave. facility, told employees that they were discharged for engaging in union or protected activities and in order to discourage union activities and/or mem- bership. 3. (a) About February 19, 2021, the Respondent is- sued employee Erik Stanford two disciplinary warnings. (b) About March 12, 2021, the Respondent issued employee Erik Stanford a disciplinary warning. (c) About April 1, 2021, the Respondent discharged employee Erik Stanford. (d) The Respondent engaged in the conduct described above in paragraphs 3(a), 3(b), and 3(c) because the named employee of the Respondent joined and assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. (e) The Respondent engaged in the conduct described above in paragraph 3(c) because employee Erik Stanford attended a Board proceeding. CONCLUSIONS OF LAW 1. By the conduct described above in paragraph 2, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 2. By the conduct described above in paragraphs 3(a), 3(b), 3(c), and 3(d), the Respondent has been discrimi- nating in regard to the hire or tenure or terms or condi- tions of employment of its employees, thereby discourag- ing membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. 3. By the conduct described above in paragraphs 3(c) and 3(e), the Respondent has been discriminating against employees for filing charges or giving testimony under the Act in violation of Section 8(a)(4) and (1) of the Act. The unfair labor practices of the Respondent described above affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(4), (3), and (1) by discharging employee Stanford for engaging in union and protected concerted activities and for at- tending a Board proceeding, we shall order the Respond- ent to offer him full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. We shall also order that the Respondent make Stanford whole, with interest, for any loss of earnings and other benefits suf- fered as a result of the unlawful discharge. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate pre- scribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision in King Soopers, Inc., 364 NLRB 1153 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we shall also order the Respondent to compensate Stanford for his search-for-work and in- terim employment expenses regardless of whether those expenses exceed interim earnings. Search-for-work and TITAN HEALTH, LLC D/B/A TWEEDLEAF 3 interim employment expenses shall be calculated sepa- rately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. In addition, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compensate Stanford for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful dis- charge, if any, regardless of whether these expenses ex- ceed interim earnings.1 Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, su- pra, compounded daily as prescribed in Kentucky River Medical Center, supra. Further, we shall order the Respondent to compensate Stanford for the adverse tax consequences, if any, of re- ceiving a lump-sum backpay award and to file a report with the Regional Director for Region 27 allocating the backpay award to the appropriate calendar year(s). Ad- voServ of New Jersey, Inc., 363 NLRB 1324 (2016). In addition to the backpay allocation report, we shall order the Respondent to file with the Regional Director for Region 27 a copy of Stanford’s corresponding W-2 form(s) reflecting the backpay award. Cascade Contain- erboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). The Respondent shall also be required to remove from its files any reference to the unlawful discipline and dis- charge of Stanford and to notify him in writing that this has been done and that the discipline and discharge will not be used against him in any way.2 ORDER The National Labor Relations Board orders that the Respondent, Titan Health, LLC d/b/a Tweedleaf, Colo- rado Springs, Colorado, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Creating the impression that it is engaged in sur- veillance of its employees’ union activities. 1 Unlike his colleagues, Member Kaplan would require the Re- spondent to compensate Stanford for other pecuniary harms only inso- far as the losses were directly caused by the unlawful discharge, or indirectly caused by the unlawful discharge where the causal link be- tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc., supra. 2 The General Counsel additionally requests a number of non- traditional remedies. We deny these requests because the General Counsel has not shown that these additional measures are needed to remedy the effects of the Respondent’s unfair labor practices. See, e.g., Environmental Contractors, Inc., 366 NLRB No. 41, slip op. at 4 fn. 6 (2018); Guy Brewer 43 Inc. d/b/a Checkers, 363 NLRB No. 173, slip op. at 2 fn. 2 (2016). (b) Telling employees that it seems like they are try- ing to start a little coup or something when they are en- gaging in union activities. (c) Threatening employees with job loss in the event of unionization. (d) Threatening employees with legal action and un- specified reprisals to discourage union activities and/or membership. (e) Interrogating employees about their union and/or protected concerted activities. (f) Soliciting grievances and asking employees how they want their grievances resolved to discourage union activities and/or membership. (g) Promising to improve employees’ working condi- tions to discourage union activities and/or membership. (h) Telling employees that they are at war with the Respondent because of their union and/or protected con- certed activities. (i) Telling employees that it is futile for them to en- gage in union and/or protected concerted activities. (j) Telling employees that they were discharged for engaging in union and/or protected concerted activities and in order to discourage union activities and/or mem- bership. (k) Issuing disciplinary warnings to employees for en- gaging in union and/or protected concerted activities or to discourage other employees from engaging in these activities. (l) Discharging or otherwise discriminating against employees for engaging in union and/or protected con- certed activities or to discourage other employees from engaging in these activities. (m) Discharging or otherwise discriminating against employees for attending a Board proceeding. (n) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Erik Stanford full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Erik Stanford whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful dis- charge and adverse disciplinary action against him, in the manner set forth in the remedy section of this decision. (c) Compensate Erik Stanford for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 27, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year(s). (d) File with the Regional Director for Region 27, 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 Erik Stanford’s corresponding W-2 form(s) re- flecting the backpay award. (e) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful disci- pline and discharge, and within 3 days thereafter, notify Erik Stanford in writing that this has been done and that the discipline and discharge will not be used against him 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, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its facility in Colorado Springs, Colorado, copies of the attached notice marked “Appendix.”3 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 27, after being signed by the Respond- ent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- 3 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its 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 judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 19, 2021. (h) Within 21 days after service by the Region, file with the Regional Director for Region 27 a sworn certifi- cation 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. June 9, 2023 ______________________________________ Marvin E. Kaplan, Member ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) 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 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 behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT create the impression that we are en- gaged in surveillance of your union activities. TITAN HEALTH, LLC D/B/A TWEEDLEAF 5 WE WILL NOT tell you that it seems like you are trying to start a little coup or something when you are engaging in union activities. WE WILL NOT threaten you with job loss in the event of unionization. WE WILL NOT threaten you with legal action and un- specified reprisals to discourage your union activities and/or membership. WE WILL NOT interrogate you about your union and/or protected concerted activities. WE WILL NOT solicit your grievances and ask you how you want your grievances resolved to discourage your union activities and/or membership. WE WILL NOT promise to improve your working condi- tions to discourage your union activities and/or member- ship. WE WILL NOT tell you that you are at war with us be- cause of your union and/or protected concerted activities. WE WILL NOT tell you that it is futile for you to engage in union and/or protected concerted activities. WE WILL NOT tell you that you were discharged for en- gaging in union and/or protected concerted activities and in order to discourage union activities and/or member- ship. WE WILL NOT issue disciplinary warnings to you for engaging in union and/or protected concerted activities or to discourage other employees from engaging in these activities. WE WILL NOT discharge or otherwise discriminate against you for engaging in union and/or protected con- certed activities or to discourage other employees from engaging in these activities. WE WILL NOT discharge or otherwise discriminate against you for attending a Board proceeding. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Erik Stanford full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights previously enjoyed. WE WILL make Erik Stanford whole for any loss of earnings and other benefits resulting from the discrimina- tion against him, less any net interim earnings, plus in- terest, and WE WILL also make him whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful discharge, including reasonable search- for-work and interim employment expenses, plus inter- est. WE WILL compensate Erik Stanford for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 27, 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(s). WE WILL file with the Regional Director for Region 27, 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 Erik Stanford’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 reference to the unlaw- ful discipline and discharge of Erik Stanford, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the unlawful employment actions will not be used against him in any way. TITAN HEALTH, LLC D/B/A TWEEDLEAF The Board’s decision can be found at www.nlrb.gov/case/27-CA-277309 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.