Overstreet v. Absolute Healthcare ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cornele A Overstreet, No. CV-22-00361-PHX-GMS 10 Petitioner, ORDER 11 v. 12 Absolute Healthcare, 13 Respondent. 14 15 16 Before the Court is a Petition for Temporary Injunction Under Section 10(j) of the 17 National Labor Relations Act, As Amended (Doc. 1), brought by Cornele A. Overstreet, 18 Regional Director of the Twenty-Eighth Region of the National Labor Relations Board, for 19 and on behalf of the National Labor Relations Board (the “Regional Director”). For the 20 following reasons, the Petition for Temporary Injunction is granted in part and denied in 21 part. 22 BACKGROUND 23 Absolute Healthcare (“Respondent”) operates several medical marijuana 24 dispensaries in Arizona.1 One of Respondent’s dispensaries is located in Gilbert, Arizona. 25 Respondent’s operations are heavily regulated by the state of Arizona and local 26 1 Relevant factual background is drawn from the record developed by the Administrative 27 Law Judge (“ALJ”) in Absolute Healthcare D/B/A Curaleaf Arizona, No. 28-CA-267540, whose decision is currently before the National Labor Relations Board (“the Board”). (R. 28 at 349.) 1 municipalities. (R. at 92.) As relevant here, Respondent must ensure that every patient 2 who enters its dispensaries is licensed to purchase medical marijuana. Medical marijuana 3 patients in Arizona are entitled to an allotment of 2.5 ounces every fourteen days. (R. at 4 100.) State regulations require Respondent to confirm that each patient does not purchase 5 more medical marijuana than their allotment allows, and to accurately document changes 6 in each patient’s allotment in a state-operated database. Id. 7 Anissa Keane (“Ms. Keane”) was a sales associate employed by Respondent at the 8 Gilbert dispensary for approximately three years, ending in August 2020. In her role, Ms. 9 Keane sold medical marijuana to Respondent’s patients. (R. at 48.) Ms. Keane was also a 10 union organizer. She first explored organizing her workplace in November 2019. After 11 speaking with a representative from United Food and Commercial Workers Local 99, Ms. 12 Keane became the principal campaigner at the Gilbert dispensary. Id. Ms. Keane spoke 13 with most of her coworkers about unionizing. (R. at 50.) These conversations focused on 14 what unionization would entail, and how unionization might improve what some 15 employees viewed as substandard COVID-19 safety protocols. (R. at 50–51.) 16 Respondent first became aware of Ms. Keane’s efforts on July 6, 2020. Tyler Neier 17 (“Mr. Neier”), the General Manager in Gilbert, emailed Stephanie Cade (“Ms. Cade”), 18 Respondent’s Director of Human Resources for Arizona, informing her that “Anissa Keane 19 has been talking to some of the associates about unionizing the dispensary and asking them 20 if they would sign a petition.” (R. at 246.) Ms. Cade forwarded Mr. Neier’s email to Greg 21 Fredericks, the VP of Human Resources for the West Coast, who inquired whether the 22 Gilbert managers had been trained on “Union Avoidance.” (R. at 243–44.) Ms. Cade 23 indicate the training had been given in January. (R. at 243.) Amanda Hargreaves (“Ms. 24 Hargreaves”), another HR executive, asked Ms. Cade to gather additional information, 25 including how Mr. Neier learned the information, what had been said, and the attitude of 26 the employee delivering the news. (R. at 243.) 27 According to Mr. Neier, an employee named J.G.2 had informed Kaitlin Cook (“Ms. 28 2 The Court will abbreviate the names of non-management employees other than Ms. Keane. 1 Cook), an Assistant Store Manager, that Ms. Keane had asked him to “sign a petition and 2 he said no.” (R. at 239.) J.G. indicated that another employee also supported the union, 3 and that Ms. Keane was promoting unionization as leading to higher wages and better 4 benefits for sales associates. Id. By Mr. Neier’s estimate, as many as nine of the thirty-six 5 dispensary employees could have been in favor of unionizing. (R. at 240.) Ms. Cade 6 relayed Mr. Neier’s message to Ms. Hargreaves. (R. at 236.) 7 On July 11, 2020, Ms. Cook informed Ms. Cade and other members of management 8 that she had obtained greater detail on Ms. Keane’s efforts. According to Ms. Cook, Ms. 9 Keane sought: 10 • Pay be raised to $18/hr including tips 11 • They would like to be paid Hazard Pay and back hazard Pay for the last couple of months 12 • She is saying they can get better insurance for only $10 13 a paycheck 14 • They would like some control over the products that we carry, I am not sure what she means exactly but [I] 15 would assume she would like to bring in new brands? 16 • The last thing she mentioned was wanting Tranica Reilly to take management classes, again I am not 17 exactly sure what she means here just relaying the information I was given. 18 19 (R. at 228.) Ms. Cook also relayed that Ms. Keane told an employee that she had “12 of 20 18 required signatures.” Id. In a subsequent affidavit, Ms. Keane indicated she had 21 actually obtained only four signatures by the end of July 2020. (R. at 367.) 22 Ms. Keane subsequently sent a detailed information sheet to her coworkers via text 23 message. (R. at 59.) The information sheet, which answered questions about the 24 unionization process, potential benefits, how grievances would be handled, and the role of 25 union cards, was subsequently sent to Mr. Neier, who relayed it to Ms. Cade and other 26 members of Respondent’s management on July 27, 2020. On July 29, Bryce Skaggs (“Mr. 27 Skaggs”), another Assistant Store Manager in Gilbert, emailed all Gilbert employees about 28 two “Union meeting[s]” scheduled for Friday July 31 in the morning and the afternoon. 1 (R. at 230.) “[E]veryone except the new temps” needed to attend one of the two. Id. Mr. 2 Skaggs sent an email just after midnight on July 31, reminding employees to attend one of 3 the “Union mandatory meeting[s]” that day. (R. at 231.) 4 The ALJ, weighing competing testimony, determined that Ms. Cade made several 5 statements at the morning meeting which were “designed to sway employees away from 6 supporting the Union.” (R. at 354.) Ms. Keane testified that Ms. Cade told the gathered 7 employees that if they formed a union, they would lose their tips. (R. at 61.) Ms. Keane 8 also testified that Ms. Cade promised employees better discounts on marijuana in response 9 to employee concerns about hazard pay. (R. at 62.) Ms. Keane finally testified that Ms. 10 Cade implied “that the person trying to organize the Union was just trying to get a job with 11 the Union because she would get paid more.” (R. at 62.) While Ms. Cade denied making 12 the statements about losing tips and employee discounts, the ALJ found Ms. Keane’s 13 testimony to be more credible because Ms. Cade’s testimony that the July 31 meeting was 14 not mandatory was contradicted by the documentary record. (R. at 356.) 15 Ms. Keane was terminated almost a month later. The stated reason for her 16 termination was that she had accrued enough disciplinary violations to warrant termination 17 under Respondent’s progressive discipline policy. Under the progressive discipline policy 18 set forth in Respondent’s Employee Handbook, employees received a verbal warning for 19 their first infraction. After a second infraction, employees received a written warning. A 20 third infraction would result in a final written warning, after which point an employee faced 21 termination. (R. at 326.) Ms. Cade characterized the policy as “you get three chances with 22 us and then it results in termination after that.” (R. at 38.) On August 23, Ms. Cook 23 “informed [Ms.] Keane that she violated the cash handling policy and that she had a $20 24 discrepancy” in her register drawer. (R. at 354.) While Ms. Keane—who had been written 25 up twice before for other infractions—asked whether she would be terminated, Ms. Cook 26 told her she “would need to have at least four cash handling problems to be fired.”3 (R. at 27 354.) 28 3 Respondent contends Ms. Keane also received a verbal warning for a cash-handling error on April 10, 2020. (R. at 73.) Ms. Keane denied receiving such a warning. Id. 1 On August 28, Ms. Keane met with Ms. Cade at the Gilbert location. (R. at 63.) 2 Ms. Cade informed Ms. Keane that she was terminated. (R. at 64.) Ms. Keane told her 3 what Ms. Cook had said about a disciplinary policy specific to cash-handling violations, 4 and Ms. Cade denied the existence of such a policy. (R. at 64.) 5 Ms. Keane subsequently filed an Unfair Labor Practice (“ULP”) charge against 6 Respondent on October 13, 2020. (R. at 375.) The charge was amended on December 28, 7 2020. (R. at 378.) The ALJ held a hearing on June 15 and 16, 2021. (R. at 349.) In an 8 order issued on February 8, 2022, the ALJ concluded that Respondent violated the National 9 Labor Relations Act (the “Act”) as follows: 10 1. Respondent’s actions of terminating [Ms. Keane] violated Section 8(a)(3) and (1) of the Act. 11 2. Respondent’s threat to employees that they would lose their 12 tips if they formed a union violated Section 8(a)(1) of the Act. 13 3. Respondent’s promise of benefits to employees if they did not form a union violated Section 8(a)(1) of the Act. 14 4. Respondent’s actions created an impression of surveillance 15 when it singled out the sole female organizer and violated Section 8(a) (1) of the Act. 16 17 (R. at 359.) Respondent has filed exceptions to the ALJ’s decision, and the matter is 18 presently pending before the Board. 19 DISCUSSION 20 I. Legal Standard 21 The Regional Director seeks an injunction pursuant to Section 10(j) of the Act 22 pending final disposition of the administrative proceeding before the Board. Section 10(j) 23 provides: 24 The Board shall have power, upon issuance of a complaint as provided in subsection (b) charging that any person has 25 engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the 26 unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for 27 appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof 28 to be served upon such person, and thereupon shall have 1 jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper. 2 3 29 U.S.C. § 160(j). 4 “To decide whether granting a request for interim relief under Section 10(j) is ‘just 5 and proper,’ district courts consider the traditional equitable criteria used in deciding 6 whether to grant a preliminary injunction.” McDermott v. Ampersand Publ’g, LLC, 593 7 F.3d 950, 957 (9th Cir. 2010); see also Frankl v. HTH Corp. (HTH Corp. I), 650 F.3d 1334, 8 1355 (9th Cir. 2011). Consequently, the Regional Director must show “that he is likely to 9 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 10 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 11 the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). 12 II. Analysis 13 A. Likelihood of Success on the Merits 14 For purposes of a § 10(j) petition, “likelihood of success is a function of the 15 probability that the Board will issue an order determining that the unfair labor practices 16 alleged by the Regional Director occurred and that [the Ninth Circuit] would grant a 17 petition enforcing that order.” HTH Corp. I, 650 F.3d at 1355. Where, as here, approval 18 to file the § 10(j) petition was given by the General Counsel and not the Board itself, the 19 mere fact of the petition’s filing is not relevant to evaluating the Regional Director’s 20 likelihood of success. Id. at 1356. However, it remains “necessary to factor in the district 21 court’s lack of jurisdiction over unfair labor practices, and the deference accorded to NLRB 22 determinations by the courts of appeals.” Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 460 23 (9th Cir. 1994), abrogated on other grounds by Winter, 555 U.S. at 20. “[E]ven on an issue 24 of law, the district court should be hospitable to the views of the General Counsel, however 25 novel.” Id. (quoting Danielson v. Joint Bd. of Coat, Suit & Allied Garment Workers’ 26 Union, 494 F.2d 1230, 1245 (2d Cir. 1974)). Likewise, “[a] conflict in the evidence does 27 not preclude the Regional Director from making the requisite showing for a [§] 10(j) 28 injunction.” Scott ex rel. NLRB v. Stephen Dunn & Assocs., 241 F.3d 652, 662 (9th Cir. 1 2001), abrogated on other grounds as recognized in Ampersand Publ’g, 593 F.3d at 957. 2 The Regional Director therefore carries his burden if he can “produce[] some evidence to 3 support the unfair labor practice charge, together with an arguable legal theory.” HTH 4 Corp. I, 650 F.3d at 1356 (quoting Cal. Pac. Med. Ctr., 19 F.3d at 460); see also Coffman 5 v. Queen of the Valley Med. Ctr., 895 F.3d 717, 725 (9th Cir. 2018). 6 1. Uncontested Violations 7 Under § 8(a)(1) of the Act, it is an unfair labor practice if an employer “interfere[s] 8 with, restrain[s], or coerce[s] employees in the exercise of” the employees’ rights under 9 § 7 of the Act to self-organize, engage in union activity, collectively bargain, and engage 10 in concerted activity. 29 U.S.C. § 158(a)(1); id. § 157. The ALJ concluded that 11 Respondent violated § 8(a)(1) by: (1) promising “improved discounts at the Union 12 Mandatory Meeting,” (2) threatening that the employees would lose tips if they unionized, 13 and (3) creating an impression of surveillance by suggesting that management was 14 monitoring Ms. Keane’s unionization efforts. (R. at 355–57.) Because Respondent 15 concedes Ms. Cade’s comments amount to violations of § 8(a)(1), the Court assumes that 16 the Regional Director is likely to succeed before the Board on each of the three alleged 17 § 8(a)(1) violations. (See Doc. 15 at 21–22, 29, 21 n.22.) 18 2. Ms. Keane’s Discharge 19 Under § 8(a)(1) and (3) of the Act, it is an unlawful labor practice for an employer 20 to discipline or terminate an employee in order “to encourage or discourage membership 21 in any labor organization.” 29 U.S.C. § 158(a)(3); Frankl v. HTH Corp. (HTH Corp. II), 22 693 F.3d 1051, 1062 (9th Cir. 2012) (“An employer violates Section 8(a)(3) when the 23 employee’s involvement in a protected activity was a substantial or motivating factor in 24 the employer’s decision to discipline or terminate the employee.”). The Board utilizes a 25 burden-shifting framework first set forth in Wright Line, 251 NLRB 1083 (1980) to 26 evaluate § 8(a)(3) violations. See Tschiggfrie Props., Ltd., 368 NLRB No. 120, at *5 27 (2019). First, the Regional Director must show that Ms. Keane’s union activities were a 28 motivating factor in Respondent’s decision to terminate her. Wright Line, 251 NLRB at 1 1089. The elements of such a showing are (1) “union or other protected concerted activity 2 by the employee,” (2) “employer knowledge of that activity,” and (3) “animus on the part 3 of the employer.” Electrolux Home Prods., 368 NLRB No. 34, at *3 (2019). Then, the 4 “burden shifts to the Respondent to establish that it would have discharged [Ms. Keane] 5 for a legitimate, nondiscriminatory reason regardless of [Ms. Keane]’s union activity.” 6 Tschiggfrie, 368 NLRB No. 120, at *5. “An employer cannot prove this affirmative 7 defense where its ‘asserted reasons for a discharge are found to be pretextual.’” United 8 Nurses Ass’ns of Cal. v. NLRB, 871 F.3d 767, 779 (9th Cir. 2017) (quoting In re Stevens 9 Creek Chrysler Jeep Dodge, Inc., 357 NLRB 633, 637 (2011)). 10 Defendant does not contest that the Board is likely to conclude that (1) Ms. Keane 11 engaged in union activity when she attempted to organize her workplace, and 12 (2) Respondent knew about her actions. (Doc. 15 at 22.) Therefore, the issues are whether 13 the Regional Director is likely to succeed in showing animus, and whether the Board is 14 likely to conclude that Respondent’s proffered reason for terminating Ms. Keane was 15 pretextual. 16 a. Animus 17 Proof of animus may be based on “direct evidence or, under certain circumstances, 18 it may be inferred from circumstantial evidence based on the record as a whole.” Boar’s 19 Head Provisions Co., Inc., 370 NLRB No. 124, slip op. at 25 (2021); Electrolux, 368 20 NLRB No. 34, at *3. Factors supporting an inference of animus include “the timing of the 21 adverse action in relation to the protected activity, other unfair labor practices committed, 22 respondent’s reliance on pretextual or shifting reasons to justify the adverse action, 23 disparate treatment of members based on protected activity and a respondent’s deviation 24 from past practice.” Laborers’ Int’l Union of N. Am., Local Union No. 91 (Scrufari Constr. 25 Co., Inc.), 370 NLRB No. 42, slip op. at 9 (2020). The Board has recently clarified that 26 “evidence of the Respondent’s general hostility toward the Union is not sufficient” to 27 satisfy this element. Tschiggfrie, 368 NLRB No. 120, at *5. Instead, the evidence of 28 animus must support “a causal relationship . . . between the employee’s protected activity 1 and the employer’s adverse action against the employee.” Id. at *11. 2 The Regional Director argues the Board is likely to adopt the ALJ’s conclusion that 3 sufficient evidence of animus existed in the administrative record. (Doc. 1-1 at 27.) The 4 ALJ based its conclusion on four grounds: (1) Ms. Cade’s comment at the mandatory 5 meeting that the organizer of the union was trying to get a “job with the union because she 6 would get paid more,” (R. at 354), (2) the three uncontested § 8(a)(1) violations, (R. at 7 358), (3) that Ms. Keane was discharged “less than a month after” the mandatory meeting, 8 (R. at 358), and (4) evidence of Ms. Keane’s disparate disciplinary treatment. (R. at 358.) 9 The Board is likely to find animus on the administrative record. As for Ms. Cade’s 10 comment, the ALJ concluded that it amounted to singling out Ms. Keane for her organizing 11 efforts and maligning her motivations. (R. at 358.) Ms. Cade’s comment readily lends 12 itself to an interpretation consistent with the ALJ’s conclusion: that Ms. Keane’s efforts to 13 organize her workplace were not so she could reap the rewards of higher wages as 14 Respondent’s employee, but that she hoped a successful union election would lead to her 15 being hired by the union in the future. The implication is that Ms. Keane’s efforts were to 16 further her personal interests and not necessarily those of her coworkers. As the comment 17 relates directly to Ms. Keane’s protected activity, the Board could infer that it amounted to 18 an attempt to persuade her coworkers to be skeptical of her outreach and therefore tends to 19 show that Respondent not only exhibited animus towards unions generally, but towards 20 Ms. Keane’s efforts specifically. 21 The uncontested § 8(a)(1) violations likewise weigh in favor of finding animus. 22 While the Board has found that contemporaneous ULPs are insufficient to show animus if 23 they merely reflect hostility towards unions generally, see Boar’s Head, 370 NLRB No. 24 124, slip op. at 26, the ULPs in this case are likely to be considered sufficiently related to 25 Ms. Keane’s protected activity. See Tschiggfrie Props., 368 NLRB No. 120, at *5 (noting 26 that the inquiry should focus on animus towards the disciplined or discharged employee’s 27 “specific union activity”). All three violations took place at a mandatory meeting 28 specifically called in response to Ms. Keane’s efforts to organize her workplace. As the 1 record reflects that Ms. Keane was the driving force behind the union drive, the Board is 2 likely to conclude that had Ms. Keane not attempted to organize her coworkers, the 3 comments would not have been made. Therefore, the contemporaneous ULPs have a 4 sufficient causal nexus to Ms. Keane’s specific protected activity that the Board is likely 5 to consider them evidence of animus. 6 As for the timing of Ms. Keane’s discharge, this factor is somewhat weaker but still 7 weighs in favor of animus. The Board considers discharge within days of protected activity 8 to be strongly probative of animus. See Napleton Cadillac of Libertyville, 367 NLRB No. 9 6, slip op. at 15 (2018) (finding termination nine days after union election strongly 10 probative of animus); Velox Express, Inc., 368 NLRB No. 61, slip op. at 29 (2019) (finding 11 employee’s discharge three days after protected activity was “sufficient to meet the General 12 Counsel’s initial burden” of showing animus). Here, however, Ms. Keane was discharged 13 on August 28, 2020, while the mandatory meeting took place on July 31 and Respondent 14 first learned of her protected activity on July 6. Therefore, this case is more akin to 15 Mondelez Global, LLC, 369 NLRB No. 46, at *2 (2020). In Mondelez, the employees 16 engaged in protected activity and were terminated “a few months” later. 369 NLRB No. 17 46, at *2. The Board held that “[t]his temporal proximity provides some evidence of a 18 causal link between the employees’ union activities and their loss of employment” but was 19 not conclusive. Id. As Ms. Keane’s discharge took place almost a month after the 20 mandatory meeting and almost two months after Respondent first learned of her protected 21 activity, the Board is likely to conclude that the timing of her discharge provides “some 22 evidence of a causal link” but is not sufficient to show animus standing alone. Id. 23 The Regional Director finally argues the Board will find animus because Ms. Keane 24 was subjected to disparate disciplinary treatment. See In re Golden State Foods Corp., 340 25 NLRB 382, 385 (2003) (finding evidence of disparate disciplinary treatment relevant to a 26 finding of animus). The ALJ concluded that Ms. Keane was treated differently than T.H., 27 a sales associate terminated in 2019. (R. at 358.) T.H. received his first written warning 28 on April 23, 2019, for cash drawer discrepancies on three different dates. (R. at 262.) He 1 received his final written warning on May 1, 2019, which listed two additional dates with 2 cash discrepancies in addition to the three listed in the first written warning. (R. at 261.) 3 T.H. was ultimately discharged in June 2019 for a $20 discrepancy on June 11, 2019. (R. 4 at 260). Ms. Keane received her first written warning on April 28, 2020, for seven distinct 5 errors in processing a single customer transaction. (R. at 284.) Ms. Keane’s final written 6 warning came on July 17, 2020—after Respondent became aware of her protected 7 activity—for allowing a patient to purchase marijuana with an expired medical card, and 8 for processing the transaction under the wrong patient profile. (R. at 286). Finally, Ms. 9 Keane was terminated on August 28, 2020 because of a $20 discrepancy in her cash drawer. 10 While Ms. Keane was terminated after four infractions consistent with Respondent’s 11 written progressive discipline policy, the Regional Director contends she was treated 12 disparately because each written warning occurred after a single erroneous transaction— 13 while T.H.’s warnings encompass infractions spanning several transactions—and because 14 she was terminated after only a single cash-handling incident. (Doc. 1-1 at 27–28.) Ms. 15 Cade’s testimony that it takes “four incidents” for an employee to be terminated, (R. at 16 154), is inconsistent with T.H.’s disciplinary records, which suggest that he was terminated 17 after violating Respondent’s cash-handling policy six different times. (R. at 260–62.) 18 Likewise, her testimony that an employee advances along the stages of Respondent’s 19 progressive discipline policy regardless of the type of infraction is contradicted by two 20 pieces of evidence in the administrative record. (R. at 154.) First, Ms. Keane—who the 21 ALJ found more credible than Ms. Cade4—testified that Ms. Cook told her that she “would 22 have to have at least four cash-handling problems” before she was terminated. (R. at 64, 23 358.) Second, Mr. Neier indicated in an email written after Ms. Keane’s $20 discrepancy 24 was discovered in August that “[n]ormally we do a verbal warning and then written with 25 4 An ALJ’s credibility finding will be upheld unless it is “inherently incredible or patently unreasonable.” New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir. 1997) 26 (quoting Retlaw Broad Co. v. NLRB, 53 F.3d 1002, 1005 (9th Cir. 1995)). The ALJ determined Ms. Keane was more credible because Ms. Cade’s testimony was directly 27 contradicted by the documentary record on at least one occasion. (R. at 356.) As this determination was supported by the record, the ALJ’s credibility finding will likely be 28 upheld by the Board and the Ninth Circuit. 1 cash discrepancies specifically.” (R. at 256.) This further supports the Regional Director’s 2 argument that cash-handling incidents were treated differently from other types of 3 disciplinary infractions, and that Ms. Keane was treated more harshly for cash-handling 4 violations than a comparator employee who did not engage in protected activity. 5 While the Regional Director’s interpretation of the evidence is not the only possible 6 one, he need only present “some evidence” and “an arguable legal theory” supporting the 7 ALJ’s conclusion. HTH Corp. I, 650 F.3d at 1356. As he has done so, he has met his 8 burden to show he is likely to succeed before the Board in establishing his prima facie case. 9 b. Legitimate Nondiscriminatory Reason for Termination 10 To rebut the Regional Director’s prima facie case, Respondent must show by a 11 preponderance of the evidence that “it would have discharged [Ms. Keane] for a legitimate, 12 nondiscriminatory reason regardless of [Ms. Keane]’s union activity.” Tschiggfrie Props., 13 368 NLRB No. 120, at *5. “In other words, a respondent must show that it would have 14 taken the challenged adverse action in the absence of protected activity, not just that it 15 could have done so.” Rhino Nw., LLC, 369 NLRB No. 25, at *3 (2020). Respondent 16 argues that it would have terminated Ms. Keane regardless of her protected activity because 17 Respondent operates in a highly regulated environment, and her infractions threatened 18 Respondent’s license to operate medical marijuana dispensaries. (Doc. 15 at 27.) The 19 Regional Director notes that Respondent’s disparate treatment of Ms. Keane and T.H. 20 undermines this assertion, as Respondent was arguably more lenient with T.H. than Ms. 21 Keane. (Doc. 17 at 11.) 22 The Board is likely to conclude that Respondent has not shown that it would have 23 discharged Ms. Keane had she not engaged in protected activity. The ALJ found that the 24 “stark evidence of disparate treatment of at least another employee,” namely T.H., fatally 25 undermined Respondent’s case because it suggested Respondent applied its progressive 26 discipline policies inconsistently against Ms. Keane and T.H. (R. at 359); cf. Great Lake 27 Window, Inc., 319 NLRB 615, 617–18 (1995) (finding evidence that the respondent’s 28 policies were applied “in the same manner to other employees” highly relevant to 1 determining whether the respondent would have terminated employee absent protected 2 activity). While the ALJ’s decision is “not binding” on the Court, it “serves as a useful 3 benchmark for gauging the Regional Director’s likelihood of success on the merits.” HTH 4 Corp. II, 693 F.3d at 1063. Moreover, the ALJ’s determination is supported by the text of 5 Respondent’s progressive discipline policy, which does not mandate termination after four 6 violations, but preserves discretion for Respondent in determining how to discipline its 7 employees. (R. at 326.) Therefore, while the Board will likely conclude that Respondent 8 has shown that it could have discharged Ms. Keane, Respondent will likely fail to make 9 the more exacting showing that it would have. Because the record contains at least “some 10 evidence” supporting the Regional Director’s position that Ms. Keane’s discharge was 11 retaliatory in nature, the Board is likely to agree that Respondent has not met its burden to 12 establish by a preponderance of the evidence that it would have terminated Ms. Keane had 13 she not engaged in protected activity.5 Cal. Pac. Med. Ctr., 19 F.3d at 460. 14 c. Conclusion 15 The Regional Director is likely to succeed on the merits because the Board is likely 16 to conclude that Respondent violated § 8(a)(1) and (3) when it terminated Ms. Keane. 17 While Respondent has presented evidence of Ms. Keane’s disciplinary issues, the Board 18 could nevertheless conclude that Ms. Keane’s discharge was in retaliation for her protected 19 activity. “That is not the only conclusion the evidence would support, but contrary 20 evidence in the record does not preclude a showing of a likelihood of success on the merits” 21 in a § 10(j) proceeding. Overstreet v. David Saxe Prods., LLC, No. 18-cv-01287-APG- 22 NJK, 2019 WL 332406, at *7 (D. Nev. 2019). 23 B. Likelihood of Irreparable Harm 24 In § 10(j) cases, “‘permit[ting an] allegedly unfair labor practice to reach fruition 25 and thereby render meaningless the Board’s remedial authority’ is irreparable harm.” 26 Small v. Operative Plasterers’ and Cement Masons’ Int’l Ass’n Local 200, 611 F.3d 483, 27 5 If Ms. Keane were to accept reinstatement, Respondent remains free to exercise its discretion to discipline her under the terms of its progressive discipline policy, provided it 28 does so without exhibiting anti-union animus. 1 494 (9th Cir. 2010) (quoting Cal. Pac. Med. Ctr., 19 F.3d at 460). While irreparable injury 2 may not be conclusively established by a finding of likelihood of success on the merits, 3 “irreparable injury is established if a likely unfair labor practice is shown along with a 4 present or impending deleterious effect of the likely unfair labor practice that would likely 5 not be cured by later relief.” HTH Corp. I, 650 F.3d at 1362. “In making the latter 6 determination, inferences from the nature of the particular unfair labor practice at issue 7 remain available.” Id. 8 As both parties focus their analysis on Respondent’s termination of Ms. Keane, the 9 Court does so as well. “[T]he discharge of active and open union supporters risks a serious 10 adverse impact on employee interest in unionization and can create irreparable harm to the 11 collective bargaining process.” HTH Corp. I, 650 F.3d at 1363 (quoting Pye v. Excel Case 12 Ready, 238 F.3d 69, 74 (1st Cir. 2001)). Doing so “sends a message that the employer will 13 take action against union supporters, which adversely impacts employee interest in and 14 support of unionization.” HTH Corp. II, 693 F.3d at 1066. Ms. Keane was the main 15 organizer at Respondent’s Gilbert location. (R. at 351, 371.) As the record does not show 16 that any other employees were distributing union cards or otherwise attempting to organize 17 their workplace, her termination necessarily hindered the union drive and “largely 18 establishes likely irreparable harm, absent unusual circumstances.” HTH Corp. I, 650 F.3d 19 at 1363. 20 Respondent argues there is no likelihood of irreparable harm because there is no 21 evidence any significant number of employees supported the union, the Regional 22 Director’s delay in bringing the § 10(j) petition shows that an interim injunction pending a 23 Board decision is unnecessary, and Ms. Keane does not intend to organize her workplace 24 even if she were reinstated. (Doc. 15 at 32.) As for Respondent’s first contention, its 25 argument is difficult to separate from the ALJ’s uncontested finding that Respondent 26 committed three ULPs in a series of mandatory meetings held mere days after learning 27 about the details of Ms. Keane’s pitch to her fellow employees. Even before Ms. Keane 28 was discharged, Respondent had attempted to chill unionization efforts. It cannot now use 1 the lack of union support among its employees to argue an injunction is unwarranted. See 2 HTH Corp. I, 650 F.3d at 1365 (“[I]n the context of pervasive unremedied unfair labor 3 practices, it becomes impossible to know if employees truly no longer want representation 4 by the elected union, as their expressed preferences are generally tainted by the effects of 5 the unfair labor practices.”). 6 Second, the Ninth Circuit expressly rejected a delay argument similar to 7 Respondent’s in HTH Corp. I. There, the ALJ issued his decision on September 30, 2009, 8 but the Regional Director did not file a § 10(j) petition until January 7, 2010. HTH Corp. 9 I, 650 F.3d at 1341. The court found the delay did not weigh against finding likely 10 irreparable harm because “[b]y awaiting the ALJ decision, the Director made the District 11 Court’s task in evaluating the propriety of interim relief much easier, and much more likely 12 to be carried out accurately” because the court could rely on the full record developed by 13 the ALJ in arriving at its conclusions. Id. at 1363. Here, the ALJ issued his decision on 14 February 8, 2022, and the Regional Director filed the § 10(j) petition on March 9, 2022— 15 much faster than in HTH Corp. I. Therefore, the Regional Director’s delay does not weigh 16 against finding likely irreparable harm. 17 That Ms. Keane does not necessarily intend to organize her workplace again if she 18 were offered reinstatement is likewise of little weight. Even if Ms. Keane returns to work 19 for Respondent but does not organize her colleagues, her return would signal to other 20 employees that they are free to self-organize under the auspices of the Act. See David Saxe 21 Prods, 2019 WL 332406, at *9 n.4 (“Requiring an offer of reinstatement is not just about 22 making the discharged employees whole. It also sends a message to other employees that 23 retaliatory discharges will be redressed.”). Moreover, Ms. Keane testified at her deposition 24 that if offered reinstatement, she would only work for Respondent until she finished her 25 graduate studies in May 2023. (Doc. 15-1 at 5, 6.) “[A] long time may pass before the 26 Board decides the merits of this case,” and there is no guarantee that the Board will issue 27 its decision before May 2023. Pye v. Excel Case Ready, 238 F.3d 69, 75 (1st Cir. 2001). 28 If the Board issues a reinstatement order after May 2023 but no temporary injunction is in 1 place, its remedial authority would be “render[ed] meaningless.” HTH Corp. I, 650 F.3d 2 at 1362; Small, 611 F.3d at 494 (allowing “allegedly unfair labor practice[s] to reach 3 fruition” amounts to “irreparable harm”). Consequently, the Regional Director has met his 4 burden to show a likelihood of irreparable harm. 5 C. Balance of Equities 6 In considering the balance of equities in § 10(j) cases, the Court “must take into 7 account the probability that declining to issue the injunction will permit the alleged[] unfair 8 labor practices to reach fruition and thereby render meaningless the Board’s remedial 9 authority.” HTH Corp. I, 650 F.3d at 1365 (quoting Cal. Pac. Med. Ctr., 19 F.3d at 460). 10 A finding of likely irreparable harm suggests there is “considerable weight” on the 11 Regional Director’s side of the balance of equities. Id. 12 Respondent argues it would be harmed by an order that Ms. Keane be reinstated 13 because Ms. Keane’s history of infractions suggest she is a “poor performer” who is likely 14 to continue making errors that could jeopardize Respondent’s license to operate a medical 15 marijuana dispensary. (Doc. 15 at 33.) This argument is not without merit. As detailed 16 above, Respondent operates in a highly regulated environment, and Ms. Keane was twice 17 disciplined for transactions that likely violated state regulatory requirements. However, 18 this harm must be weighed against the Court’s determination that the Board is likely to 19 conclude that Ms. Keane’s ultimate termination was motivated by animus against her 20 protected activity and that she was disciplined more harshly than peer employees. 21 Moreover, if Ms. Keane were to accept reinstatement, Respondent would be free to monitor 22 and discipline her like any other employee, so long as it does not exhibit anti-union animus 23 in doing so. 24 Respondent also argues it would be harmed if the Court ordered one of 25 Respondent’s employees to read the Court’s order at a mandatory staff meeting. This 26 argument has been considered and rejected by the Ninth Circuit, because “a reading order 27 is not an extraordinary remedy but rather an ‘effective but moderate way to let in a warming 28 wind of information and, more important, reassurance.’” United Nurses, 871 F.3d at 789 1 (quoting UNF W., Inc. v. NLRB, 844 F.3d 451, 463 (5th Cir. 2016)). “Public notice reading 2 in particular is designed to ‘ensure that the important information set forth in the notice is 3 disseminated to all employees, including those who do not consult the [employer’s] bulletin 4 boards.’” UNF, 844 F.3d at 463 (quoting Excel Case Ready, 334 NLRB 4, 5 (2001)). 5 However, mindful of Respondent’s concerns, the Court will require an agent of the Board 6 to read the order at mandatory employee meetings scheduled by Respondent. This cures 7 any question of compelled speech, as “it is obvious from this order that [Respondent does] 8 not agree with or support the positions of the [Regional Director.]” David Saxe Prods., 9 2019 WL 332406, at *9. 10 Having considered both parties’ arguments, the Court concludes the equities weigh 11 in favor of issuing an injunction as Respondent’s harms from an injunction are outweighed 12 by its alleged violations of the Act and the importance of interim relief. 13 D. Public Interest 14 As for the final factor, the “public interest is served by ensuring that an unfair labor 15 practice will not continue while the Board takes time to investigate and adjudicate the 16 charge.” HTH Corp. II, 693 F.3d at 1066. Respondent argues this factor weighs against 17 an injunction because it did not violate the Act by discharging Ms. Keane, and an injunction 18 is inappropriate to remedy its other three violations of the Act. However, the Court has 19 determined that the Board is likely to disagree with Respondent and conclude Ms. Keane’s 20 discharge was unlawful. And absent an injunction, Respondent’s likely violations of the 21 Act may go unremedied because of administrative delay. “[E]nforcement of the ALJ’s 22 order” therefore “serves the public interest” as it preserves the Board’s remedial power. 23 Id. 24 E. Scope of Injunction 25 The Regional Director has shown a likelihood of success on the merits, a likelihood 26 of irreparable injury, and that the balance of hardships and the public interest favor interim 27 injunctive relief. The Court must therefore consider what relief is “just and proper” under 28 the circumstances. 29 U.S.C. § 160(j). As “[a]n overbroad injunction is an abuse of 1 discretion,” the Court must tailor its order “to remedy the specific harm alleged.” 2 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (quoting Lamb-Weston, Inc. 3 v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)). 4 The proposed injunctive relief contains aspects that are prohibitory and aspects that 5 are mandatory. (Doc. 1 at 9.) A prohibitory injunction prevents a party from taking action 6 and “preserve[s] the status quo,” while a mandatory injunction orders a party to take action 7 and goes beyond maintaining the status quo. Marlyn Nutraceuticals, Inc. v. Mucos Pharma 8 GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009). Mandatory injunctions are not 9 granted unless “extreme or very serious damage will result” and are not granted in 10 “doubtful” cases or where the injury is compensable in damages. Id. at 879. “The rules 11 governing the relief that may be granted by preliminary injunction are not ‘hard and fast 12 rules, to be rigidly applied to every case regardless of its peculiar facts,’ because ‘[t]he 13 infinite variety of situations . . . requires that the court have considerable discretion in 14 fashioning such relief.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) (quoting 15 Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963)). 16 The Regional Director seeks an injunction requiring Respondent to (1) offer Ms. 17 Keane reinstatement, (2) remove all records relating to her discharge, (3) hold one or more 18 mandatory meetings at the Gilbert location where the Court’s order will be read to the 19 assembled employees by either a member of Respondent’s management or a Board official, 20 (4) post copies of the Court’s order in the Gilbert facility, and (5) submit an affidavit 21 documenting compliance with the Court’s order. While the Court must scrutinize proposed 22 mandatory relief closely, the proposed terms meet the heightened standard. Courts 23 reviewing § 10(j) petitions regularly recognize reinstatement and notice-reading are 24 appropriate remedies for a likely § 8(a)(3) violation. Overstreet v. One Call Locators Ltd., 25 46 F. Supp. 3d 918, 931–32 (D. Ariz. 2014) (reinstatement and notice-reading); Frankl v. 26 Adams & Assocs., Inc., 74 F. Supp. 3d 1318, 1332 (E.D. Cal. 2015) (reinstatement); Norelli 27 v. HTH Corp., 699 F. Supp. 2d 1176, 1207 (D. Haw. 2010) (reinstatement and notice- 28 reading); David Saxe Prods., 2019 WL 332406, at *19 (reinstatement and notice-reading). 1 Moreover, “[m]andatory injunctions are most likely to be appropriate when ‘the status quo 2 . . . is exactly what will inflict the irreparable injury upon complainant.’” Hernandez, 872 3 F.3d at 999 (quoting Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 4 816, 830 n.21 (D.C. Cir. 1984)). The provisions of the Regional Director’s relief that are 5 mandatory in nature are largely required to remedy Respondent’s likely violations of the 6 Act.6 Accordingly, the Court finds the Regional Director has met his burden for the 7 requested relief. 8 CONCLUSION 9 IT IS THEREFORE ORDERED that the Regional Director’s Petition for 10 Temporary Injunction Under Section 10(j) of the National Labor Relations Act, As 11 Amended (Doc. 1) is GRANTED in part and DENIED in part. 12 IT IS FURTHER ORDERED that pending final disposition of Absolute 13 Healthcare D/B/A Curaleaf Arizona, No. 28-CA-267540 before the Board, Respondent 14 and its officers, agents, servants, representatives, successors, and assigns, and all persons 15 acting in concert with them are hereby RESTRAINED AND ENJOINED from: 16 (a) creating an impression among its employees that their Union and concerted 17 activities are under surveillance by Respondent; 18 (b) threatening its employees with losing their tips if they form a union; 19 (c) promising its employees benefits, including better employee discounts, if 20 they do not form a union; 21 (d) discharging or otherwise discriminating against employees in order to 22 discourage membership in, or support for, or activities on behalf of the Union 23 and any labor organization; 24 6 The Court declines to order Respondent to remove all records relating to Ms. Keane’s 25 discharge at this time. The Board will determine in due course whether Ms. Keane’s discipline and discharge was motivated by her union activities. “Purging the files now is 26 premature, especially if the Board finds the discharges and discipline were justified.” David Saxe Prods., 2019 WL 332406, at *18. If Ms. Keane accepts reinstatement, her 27 prior discipline may be considered in any further progressive discipline that she may be subject to, pending a final Board order. 28 1 (e) discharging or otherwise discriminating against employees for engaging in 2 concerted activities protected by Section 7 of the Act; and 3 (f) in any like or related manner interfering with, restraining, or coercing its 4 employees in the exercise of their rights to self organization, to form labor 5 organizations, to join or assist the Union or any labor organization, to bargain 6 collectively through representatives of their own choosing and to engage in 7 other concerted activities for the purposes of collective bargaining or other 8 mutual aid or protection, or to refrain from any and all such activities. 9 IT IS FURTHER ORDERED that Respondent shall: 10 (a) Within five (5) days of the date this Order is electronically filed, offer, in 11 writing, Ms. Keane interim reinstatement to her former position; or, if that 12 position no longer exists, to a substantially equivalent position without 13 prejudice to seniority or any other rights and privileges previously enjoyed, 14 displacing, if necessary, any employees who may have been hired or 15 reassigned to replace her; 16 (b) Within ten (10) days of the date this Order is electronically filed: 17 i. Hold one or more mandatory employee meetings at the Gilbert, 18 Arizona facility, on working time and at times when Respondent 19 customarily holds employee meetings, and scheduled to ensure the 20 widest possible employee attendance, at which the Order will be read 21 to the bargaining unit employees by a Board official; 22 ii. Announce the meeting(s) for the order reading in the same manner it 23 would customarily announce a meeting of employees; and 24 iii. Require that all employees of the unit attend the meeting(s); 25 (c) Within five (5) days of the date this Order is electronically filed, post copies 26 of the Order at Respondent’s Gilbert, Arizona facility where notices to 27 employees are customarily posted; said posting shall be maintained during 28 the pendency of the Board’s administrative proceedings free from all 1 obstructions and defacements; all unit employees shall have free and 2 unrestricted access to said postings; and 3 (d) | Within twenty (20) days of the date this Order is electronically filed, file with 4 the Court, with a copy submitted to the Regional Director of Region 28 of 5 the Board, a sworn affidavit from a responsible Respondent official, setting 6 forth with specificity the manner in which Respondent has complied with the 7 terms of this decree, including how it has posted the documents required by 8 this order. 9 Dated this 23rd day of June, 2022. 10 “) Mersey Bette! Waren □□ 12 Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21-