The Healing Healthcare 3, Inc d/b/a Curaleaf Camelback Dispensary

373 NLRB No. 31 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. The Healing Healthcare 3, Inc. d/b/a Curaleaf Camel- back Dispensary and United Food and Commer- cial Workers Union, Local 99. Case 28–CA– 329732 February 29, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY This is a refusal-to-bargain case in which the Respond- ent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on October 23, 2023, by the United Food and Commercial Workers Union, Local 99 (the Union), the General Counsel issued a complaint on November 21, 2023, alleging that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union following the Un- ion’s certification in Case 28–RC–296310. (Official no- tice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On December 12, 2023, the General Counsel filed a Motion for Summary Judgment. On December 26, 2023, the Board issued an Order Transferring the Proceeding to the Board and a Notice to Show Cause why the motions should not be granted. On January 9, 2024, the Respond- ent filed a response to the Notice to Show Cause. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain but con- tests the validity of the Union’s certification of 1 In its answer, the Respondent largely admits the complaint allega- tions, including the allegation that it is refusing to recognize and bargain with the Union. It denies, however, par. 5(c), which alleges that the Un- ion is the exclusive collective-bargaining representative of the unit; par. 5(f), which alleges that the Union’s information requests involve infor- mation necessary for, and relevant to, the Union’s performance of its col- lective-bargaining representative duties; par. 6, which alleges that the Respondent’s refusal to bargain violates Sec. 8(a)(5) and (1); and par. 7, which alleges that the Respondent’s unfair labor practices affect com- merce. These issues, however, were fully litigated and resolved in the underlying representation hearing. Accordingly, the Respondent’s deni- als do not raise any litigable issue in this proceeding. representative based on its contention, raised and rejected in the underlying proceeding, that the Regional Director erred in directing an election by mail.1 All representation issues raised by the Respondent were or could have been litigated in the prior representation pro- ceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor has it established any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice pro- ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). We also find that there are no factual issues warranting a hearing with respect to the Respondent’s refusal to fur- nish the Union with requested information. The complaint alleges, and the Respondent admits, that by email dated September 7, 2023, the Union requested the following in- formation: 1. A list of all employees currently employed in the bar- gaining unit, including their full names, dates of hire, rate of pay, job classification, last known address, and telephone number. 2. A copy of all current personnel policies, practices or procedures, and a full description of any unwritten poli- cies, practices and procedures. 3. A copy of all current work rules, and a full description of any unwritten work rules. 4. A copy of each current job description for all posi- tions within the bargaining unit. 5. A copy of tip and pool policy. 6. A copy of all disciplinary notices, warnings or other records of disciplinary actions taken against any mem- ber of the bargaining units for the past year. The Respondent’s answer also asserts several affirmative defenses, including that the complaint fails to state a claim upon which relief can be granted. This defense has not, however, been supplemented with any additional argument or support, and we therefore find that it is insuffi- cient to warrant denial of the Motions for Summary Judgment. See, e.g., Sysco Central California, Inc., 371 NLRB No. 95, slip op. at 1 fn. 1 (2022); Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018). Moreover, the Respondent admits that it has refused to recognize and bargain with the Union. As such, “the complaint does indeed state claims upon which relief can be granted.” Wolf Creek Nuclear Operating Corp., 366 NLRB No. 30, slip op. at 1 fn.2 (Mar. 13, 2018), enfd. 762 F. App’x 461 (10th Cir. 2019). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 7. A copy of all reports of occupational injuries and ill- ness, including copies of the OSI-IA 300 logs for the past 3 years. 8. A copy of all job accident reports for the last 5 years. 9. A copy of any current attendance policy or program. 10. A copy of the attendance record of any employee in the bargaining unit who has been warned either orally or in writing, suspended, terminated, or otherwise disci- pline[d] because [of] attendance problems. 11. A copy of the most current employee handbook. 12. A copy of any employee benefit package, for exam- ple, vacation, holiday pay, sick pay, personal days off. The complaint further alleges, and the Respondent admits, that since September 7, 2023, the Respondent has failed and refused to furnish the information requested by the Union. It is well established that information concerning the terms and conditions of employment of unit employees is presumptively relevant for purposes of collective bargain- ing and must be furnished on request. See, e.g., Metro Health Foundation, Inc., 338 NLRB 802, 803 (2002). The Respondent has not asserted any basis for rebutting the presumptive relevance of this information. We find, therefore, that the Respondent unlawfully refused to fur- nish the information sought by the Union. See, e.g., NP Sunset LLC d/b/a Sunset Station Hotel Casino, 367 NLRB No. 62, slip op. at 1–2 (2019), enfd. mem. 792 F. App’x 557 (9th Cir. 2020); CVS Albany, LLC, d/b/a CVS, 364 NLRB No. 122, slip op. at 1 (2016), enfd. mem. 709 F. App’x 10 (D.C. Cir. 2017) (per curiam); Metro Health Foundation, supra. Accordingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a corpo- ration with an office and place of business in Phoenix, Ar- izona (the Respondent’s facility), where it has been oper- ating a cannabis-related dispensary providing adult use and medical marijuana products for its patients and cus- tomers. During the 12-month period ending October 23, 2023, the Respondent, in conducting its operations described above, purchased and received at its facility, goods and services valued in excess of $50,000 directly from points outside the State of Arizona. During the same period, the Respondent derived gross revenues in excess of $500,000. 2 The Respondent’s request that the complaint be dismissed is there- fore denied. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election conducted by mail between July 7 and July 28, 2022, the Regional Di- rector for Region 29 issued a Decision on Objections and Certification of Representative in Case 28–RC–296310 on May 23, 2023,3 certifying the Union as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time Store Associates em- ployed by the Employer at its facility located in Phoenix, Arizona, but excluding all other employees, office cleri- cal, professional employees, Store Associate Leads, in- ventory leads, inventory lead specialists, managers, guards, and supervisors as defined in the Act. On July 27, 2023, the Board denied the Respondent’s request for review of the Regional Director’s decision. The Union continues to be the exclusive collective-bar- gaining representative of the union employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain By email dated September 7, 2023, the Union requested that the Respondent recognize and bargain collectively with the Union as the exclusive collective-bargaining rep- resentative of the unit. Since about September 7, 2023, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bar- gaining representative of the unit. By email dated September 7, 2023, the Union requested that the Respondent furnish it with the information de- scribed above that is necessary for, and relevant to, the Union’s performance of its duties as the collective-bar- gaining representative of the unit. Since September 7, 2023, the Respondent has failed and refused to furnish the requested information. We find that these failures and refusals constitute an un- lawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since September 7, 2023, to rec- ognize and bargain with the Union as the exclusive 3 On September 19, 2022, the General Counsel transferred the repre- sentation case from Region 28 to Region 29. THE HEALING HEALTHCARE 3, INC. D/B/A CURALEAF CAMELBACK DISPENSARY 3 collective-bargaining representative of the employees in the appropriate unit, and by failing and refusing since Sep- tember 7, 2023, to furnish the Union with requested infor- mation that is necessary and relevant to the Union’s per- formance of its duties as the exclusive collective-bargain- ing representative of the Respondent’s unit employees, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an un- derstanding is reached, to embody the understanding in a signed agreement. We shall also order the Respondent to furnish the Union with the information it requested on September 7, 2023. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Re- spondent, the Healing Healthcare 3, Inc., d/b/a Curaleaf Camelback Dispensary, Phoenix, Arizona, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with the United Food and Commercial Workers Union, Local 99 (the Union) as the exclusive collective-bargaining rep- resentative of the employees in the bargaining unit. (b) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the exclusive collective- 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tices must be posted within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work, and the notices may not be posted until a substantial complement of employees has re- turned to work. If, while closed or not staffed by a substantial comple- ment of employees due to the pandemic, the Respondent is communi- cating with its employees by electronic means, the notice must also be bargaining representative of the Respondent’s unit em- ployees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time Store Associates em- ployed by the Employer at its facility located in Phoenix, Arizona, but excluding all other employees, office cleri- cal, professional employees, Store Associate Leads, in- ventory leads, inventory lead specialists, managers, guards, and supervisors as defined in the Act. (b) Furnish to the Union in a timely manner the infor- mation requested by the Union on September 7, 2023. (c) Post at its facility in Phoenix, Arizona, copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 28, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent 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, 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 employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since September 7, 2023. posted by such electronic means within 14 days after service by the Re- gion. 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (d) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. February 29, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, 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 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 fail and refuse to recognize and bargain with the United Food and Commercial Workers Union, Local 99 (the Union) as the exclusive collective-bargain- ing representative of our employees in the bargaining unit. WE WILL NOT refuse to bargain collectively with the Un- ion by failing and refusing to furnish it with requested in- formation that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and con- ditions of employment for our employees in the following appropriate bargaining unit: All full-time and regular part-time Store Associates em- ployed by the Employer at its facility located in Phoenix, Arizona, but excluding all other employees, office cleri- cal, professional employees, Store Associate Leads, in- ventory leads, inventory lead specialists, managers, guards, and supervisors as defined in the Act. WE WILL furnish to the Union in a timely manner the information requested by the Union on September 7, 2023. THE HEALING HEALTHCARE 3, INC. D/B/A CURALEAF CAMELBACK DISPENSARY The Board’s decision can be found at https://www.nlrb.gov/case/ 28-CA-329732 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