WASHINGTON (CN) - The D.C. Circuit on Friday partially granted a request by cannabis giant Curaleaf to review a wrongful termination violation brought by a federal labor regulator.
At the same time, the court allowed the National Labor Relations Board to proceed with enforcement on what the agency says are three other violations.
The National Labor Relations Board charged Curaleaf, also known as Absolute Healthcare, with four unfair labor violations after regulators said the company made employees feel like they were under surveillance, threatened the loss of tips if workers unionized, promised benefits if they didn't unionize and wrongfully terminated a unionizing employee.
Curaleaf, the largest cannabis company in the U.S., operates marijuana dispensaries across the country. The violations were focused on a specific dispensary in Gilbert, Arizona.
Arizona has had medical cannabis since 2012. Dispensaries in the state also began selling recreational marijuana in January 2021 following the passage of a ballot measure in November 2020. The events in the case stem from 2020.
A three-judge panel, made up of U.S. Circuit Court judges Patricia Millett and Justin Walker and Senior Judge Douglas Ginsburg - Barack Obama, Donald Trump and Ronald Reagan appointees, respectively -agreed with Curaleaf that the wrongful termination charge lacked substantial evidence.
"The record holds that Cureleaf adhered to its neutral discipline policy and so would have fired [Anissa] Keane regardless of her union activity," Millett wrote in the court's opinion. "The record also contains no evidence of disparate treatment based on union activity."
Keane, the terminated employee and head of the store's union drive, had made a litany of missteps, the court found, including seven errors in a single transaction between April and July 2020 that led to her termination.
Keane received three warnings - the company's four-step policy required them before termination - and was fired less than a month after two mandatory info sessions meant to dissuade employees from unionizing.
Keane began working as a budtender - that is, someone who prepares and handles cannabis flower buds for sale - at the Emerald Dispensary in Gilbert, a small independent shop before it was acquired by Curaleaf in 2019. She raised the idea of unionizing in November 2019 and began seriously organizing during the COVID-19 pandemic.
Keane's firing led to NLRB involvement and four labor violation charges against Curaleaf. An administrative law judge sided with the board and ordered Cureleaf to reinstate Keane with backpay.The judge also ordered Curaleaf supervisors to read aloud a notice of the board's findings and provide union access to its facilities to speak with employees.
Curaleaf contested the judge's decision with the NLRB, where a divided three-member panel affirmed the decision. They specifically compared Keane's firing to that of a top salesman at Curaleaf's Camelback store - the only other employee fired under the four-step policy.
The board found that the Camelback employee had been fired after seven cash-handling infractions, while Keane had been fired after just two. Still, Curaleaf argued that Keane's mistakes were more serious and endangered its operating license.
The NLRB decision prompted Curaleaf to appeal again - this time, to the D.C. Circuit. In the appeals court's opinion on Friday, Millett noted that while the NLRB normally receives a high degree of deference from the courts, the board's findings require significant evidence.
"The board's finding that Curaleaf unlawfully fired Keane is not supported by substantial evidence," Millett wrote. "Because the board imposed the notice-reading and union-access remedies in response to Curaleaf's firing of Keane, those remedies cannot be enforced."
The panel found that Curaleaf had gone to extensive lengths to review Keane's mistakes and weighed the severity of the errors more than her union activity.
A Curaleaf Arizona manager described Keane's seven-error transaction as "by definition a night mare [sic] transaction," Millet noted in the opinion. She added that even after two mistakes by Keane, management nonetheless held to its four-step policy before considering termination.
Regardless, Millett said the board could still apply enforcement for the other three violations. The board will have to determine separate remedies for those violations, as the notice-reading and union access were tied to Keane's termination.
In a concurring opinion, Trump-appointed Walker took a harsher view of the case, referring to Curaleaf and Keane respectively as "a criminal enterprise" and "drug dealer" selling illegal drugs.
Noting marijuana's ongoing illegal status at the federal level, he expressed concern about the NLRB exercising jurisdiction over marijuana dispensaries. He drew a comparison to "bookies and counterfeiters" who affect interstate commerce but for whom the NLRB does not adjudicate labor disputes.
"Why does that change when a corner boy calls himself a 'budtender' and his crew incorporates under state law?" Walker asked. "To me, at least, the answer is hazy."
Source: Courthouse News Service
