Absolute Healthcare, D/ B / A Curaleaf Arizona v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2023 Decided May 31, 2024
No. 22-1320
ABSOLUTE HEALTHCARE, D/ B / A C URALEAF ARIZONA,
P ETITIONER
v.
NATIONAL LABOR R ELATIONS B OARD ,
R ESPONDENT
Consolidated with 23-1009
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Jeffrey E. Dilger argued the cause for petitioner. On the
briefs were Maurice Baskin, Stefan Marculewicz, and Emily
Carapella.
Barbara Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,
Deputy Associate General Counsel, David Habenstreit,

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Assistant General Counsel, and Usha Dheenan, Supervisory
Attorney.
Before: M ILLETT and WALKER , Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge M ILLETT.
Concurring opinion filed by Circuit Judge WALKER .
M ILLETT, Circuit Judge: Absolute Healthcare, which does
business as Curaleaf, operates medical marijuana dispensaries
throughout the United States. The National Labor Relations
Board found that Curaleaf committed four unfair labor
practices, including unlawfully firing an employee for trying to
unionize a Curaleaf store in Gilbert, Arizona. The Board also
ordered Curaleaf to read aloud to its Gilbert-based employees
a notice describing the Board’s findings and to grant the union
access to Curaleaf’s Gilbert store.
Because the Board’s unlawful-discharge finding is not
supported by substantial evidence, we grant Curaleaf’s petition
for review and deny the Board’s cross-application for
enforcement as to the unlawful-discharge finding and the
notice-reading and union-access remedies. We grant the
Board’s cross-application for enforcement as to Curaleaf’s
three uncontested unfair labor practices.
I
A
The National Labor Relations Act, 29 U.S.C. § 151 et seq.,
protects the right of employees to engage in “self-organization,
[and] to form, join, or assist labor organizations,” id. § 157. To
that end, the Act prohibits employers from “interfer[ing] with,

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restrain[ing], or coerc[ing] employees in the exercise of th[ose]
rights[.]” Id. § 158(a)(1). It also prohibits employers from
“discriminat[ing] in regard to hire or tenure of employment or
any term or condition of employment to encourage or
discourage membership in any labor organization[.]” Id.
§ 158(a)(3). An aggrieved employee can file an unfair labor
practice charge with the National Labor Relations Board. 29
C.F.R. § 101.2.
To determine whether an employer’s discipline of an
employee is an unfair labor practice, the Board applies the
Wright Line test. See Inova Health Sys. v. NLRB, 795 F.3d 68,
80 (D.C. Cir. 2015); Wright Line, a Division of Wright Line,
Inc., 251 N.L.R.B. 1083, 1089 (1980); see also NLRB v.
Transportation Mgmt. Corp., 462 U.S. 393, 401–403 (1983)
(approving Wright Line test). That test has two steps. First,
the General Counsel for the Board must demonstrate that the
employer disciplined an employee for engaging in protected
activity. See Inova, 795 F.3d at 80. Second, once the General
Counsel makes that initial showing, “the burden of persuasion
shifts to the employer to show that it would have taken the same
action in the absence of the unlawful motive.” Id. (quotation
marks omitted).
If the Board finds an unfair labor practice, it has broad
discretion to issue remedies designed to “effectuate the policies
of the Act.” United Steelworkers of America v. NLRB, 646
F.2d 616, 629 (D.C. Cir. 1981); see Fibreboard Paper Prods.
Corp. v. NLRB, 379 U.S. 203, 216 (1954). In appropriate cases,
the Board may order “extraordinary remedies” such as
requiring an employer to read aloud a notice of the Board’s
finding of unfair labor practices or to provide the union access
to the employer’s facilities to speak with employees. See HTH
Corp. v. NLRB, 823 F.3d 668, 674 (D.C. Cir. 2016) (notice
reading); United Steelworkers, 646 F.2d at 638 (union access).

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Before imposing such extraordinary remedies, the Board must
explain why “traditional remedies [do not] suffice.” HTH, 823
F.3d at 674.
B
1
Curaleaf operates medical marijuana dispensaries
throughout the United States, including one in Gilbert, Arizona
(“Curaleaf Gilbert”). Curaleaf Gilbert employs sales associates
called “budtenders.”
Budtenders have two duties relevant to this case. First,
they must dispense or “allot” marijuana in compliance with
Arizona state law and log each allotment in both Curaleaf’s
inventory system and the Arizona government’s program for
tracking allotments statewide for each patient. ALJ Hr’g Tr.
(“Tr.”) 129:2–130:4. Second, since Curaleaf stores are cash-
only, budtenders must handle cash and ensure that the cash in
the register drawer matches what the inventory system says
should be in the drawer. Tr. 29:10–17. Drawer discrepancies
greater than $5 violate Curaleaf policy. Tr. 135:9–25.
Employees who do not comply with Curaleaf policies and
state law when allotting marijuana or handling cash may be
disciplined. Curaleaf employs a four-step progressive
discipline policy that proceeds as (1) “verbal
warning/counseling”; (2) “written warning”; (3) “final written
warning”; and (4) “separation of employment.” J.A. 175; see
J.A. 174–176. Curaleaf’s policy reserves to Curaleaf the right
to “elect, at its sole discretion, to forgo progressive discipline
altogether, to move to a higher level of disciplinary action, or
to move directly to the immediate separation of employment.”
J.A. 174. According to undisputed testimony by Curaleaf’s
human resources director, Curaleaf does not differentiate

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between types of policy violations when escalating discipline.
Tr. 153:15–154:15. As a result, an employee’s cash-handling
violation could trigger the first step and a later allotment
violation could trigger the second. Curaleaf would not start a
separate discipline process for the allotment violation. See id.
2
In 2020, Curaleaf Gilbert employed Anissa Keane as a
budtender.
Keane committed a litany of missteps as a budtender. In
April 2020, Keane received a verbal warning because her cash
drawer was short $10. Absolute Healthcare, 372 N.L.R.B. No.
16, at 2 (2022) (“Board Order”).
Just a few weeks later, Keane made seven errors in a single
transaction, including failing to check the patient’s medical
card, dispensing the wrong quantity of marijuana, and failing
to log the allotments. Board Order 2; J.A. 134–135 (written
warning). A senior Curaleaf Arizona manager called this
transaction a “night mare transaction,” J.A. 139, and later
testified that the transaction “was, in [his] five-and-a-half
years, the most horrendous transaction [he had] ever seen,” Tr.
139:9–10. Similarly, a Curaleaf Gilbert manager sent an email
at the time saying that he had “never come across a transaction
that is quite this bad” in his “4 years of management[.]” J.A.
139. Per its discipline policy, Curaleaf issued Keane a step-
two written warning for her mistakes. J.A. 134–135.
Then, in July 2020, Keane made three more allotment
errors in a single transaction, including ringing up a transaction
on the wrong patient profile with an expired medical card.
Board Order 2. While the Curaleaf human resources director
found the errors “extreme,” the director said that because
Keane’s prior warnings were “verbal/written [Curaleaf] will

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need to make this her last and final warning.” J.A. 142.
Curaleaf then issued Keane a final written warning. J.A. 136–
137.
After learning of Keane’s July 2020 mistakes but before
issuing that final written warning, Curaleaf management
became aware that Keane was trying to unionize the Gilbert
store. Board Order 1. Curaleaf management then discussed
how to respond to the unionization effort. Id. About a month
later, Curaleaf Gilbert held two mandatory employee
information sessions to discuss unionization. Id. During one
of the sessions, a Curaleaf human resources director stated that
employees would receive “better discounts” on dispensary
products if they did not unionize, that unionizing would
result in employees losing their tips, and that “the person
trying to organize the Union was just trying to get a job
with the Union because she would get paid more.”
Board Order 2; see Tr. 61:11–62:25 (testimony of Keane).
While the director did not identify Keane by name, Keane was
the only female union organizer working at Curaleaf Gilbert.
Board Order 3.
In August 2020—less than a month after the information
sessions—Keane’s cash drawer was short $20. Board Order 2.
At first, an assistant Curaleaf Gilbert store manager told Keane
that she would not be fired because “it would take at least four
cash-handling violations to be fired.” Id. Senior managers
disagreed with the assistant manager’s understanding of
Curaleaf’s policy and, because of Keane’s already-lengthy
record of infractions and final warning, Curaleaf fired Keane.
See J.A. 138 (termination notice).

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Keane’s termination notice identified the August 2020
cash shortage and her three prior disciplinary actions as the sole
bases for her firing. J.A. 138.
3
The Board’s General Counsel charged Curaleaf with four
violations of the National Labor Relations Act for (1) “creating
an impression that employees were under surveillance,” (2)
“threaten[ing] employees with losing tips if they formed a
union,” (3) “promis[ing] employees benefits if they did not
form a union,” and (4) “discharging Keane for allegedly
engaging in protected and concerted activities.” Board Order
12. An administrative law judge found for the General Counsel
on all four charges. Id. The ALJ ordered Curaleaf to reinstate
Keane with backpay, to read aloud a notice of the unfair labor
practice findings to Curaleaf Gilbert employees, and to grant
the union access to Curaleaf Gilbert’s facilities any time
Curaleaf spoke to its employees about unionization. Board
Order 16–17.
Curaleaf appealed to the Board, challenging only the
unlawful-discharge finding and the notice-reading and union-
access remedies. Board Order 1, 5; see id. 1 n.2 (noting that
Curaleaf did not challenge the other three violations).
A divided three-member panel of the Board affirmed the
ALJ. At Wright Line step one, the Board majority found that
the timing of Keane’s firing, Curaleaf’s other uncontested labor
violations, Curaleaf’s singling out of Keane at the information
session, and Curaleaf’s disparate treatment of Keane together
demonstrated that Curaleaf fired Keane out of anti-union
animus. Board Order 2–3.
As evidence of disparate treatment, the Board pointed to
Tyler Tanselle-Hubbard, who was the “top salesman” at

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Curaleaf’s Camelback, Arizona store and the only other
Curaleaf employee fired under Curaleaf’s four-step policy. Tr.
158:2–24, Board Order 2–4. Hubbard’s disciplinary record
entailed:
1. Receipt of a written warning for three $10 drawer
shortages across three different days. J.A. 115.
2. Receipt of a final written warning for three additional
$10–$20 drawer shortages across five different days.
J.A. 114.
3. Curaleaf firing Hubbard for yet another $20 drawer
shortage. J.A. 113.
In total, Hubbard had seven distinct cash-handing violations.
There is no record evidence that Hubbard was engaged in union
activity. Board Order 4 n.13.
The Board observed that Hubbard had been discharged for
his seventh cash-handling infraction, while Keane had been
discharged after only her second cash-handling infraction.
Board Order 4. Because, in the Board’s view, Curaleaf had
“afforded more leniency” to Hubbard than it did to Keane, the
Board concluded that Curaleaf had not applied its discipline
policy consistently. Id.
At Wright Line step two, the Board rejected Curaleaf’s
argument that it had followed its neutral four-step discipline
policy when firing Keane. Board Order 3–4. In doing so, the
Board focused on its conclusion that Curaleaf had enforced its
policy more harshly against Keane, a union activist, than
against Hubbard, an employee uninvolved in union activities.
Id.

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Curaleaf countered that Keane’s allotment errors were
more serious because they violated Arizona medical marijuana
regulations and endangered Curaleaf’s operating license.
Board Order 4. The Board responded that Arizona law also
requires Curaleaf to maintain accurate financial records, and
cash-handling mistakes could similarly cause Curaleaf, an all-
cash business, to fall out of compliance. Id. Because both
cash-handling mistakes and allotment errors can pose a risk to
Curaleaf’s operating license, the Board rejected Curaleaf’s
argument about the relative seriousness of the two employees’
violations. Id.
Based on those findings, the Board concluded that, while
Curaleaf could have fired Keane for her final cash-handling
error, Curaleaf had not proved that it would have fired her
without her union activity. Board Order 4–5 (citing Wendt
Corp., 369 NLRB No. 135, slip op. at 3 (2020)).
The Board also upheld the notice-reading and union-
access remedies. Board Order 5. The Board found those
exceptional remedies to be appropriate because Curaleaf
“engaged in serious unfair labor practices that struck at the
heart of employees’ Section 7 rights[.]” Id. The Board
explained that notice reading was “particular[ly]” appropriate
because of Keane’s discharge, as “[t]he Board has long
recognized that * * * unlawful terminations are destructive to”
workers’ rights, “especially * * * in cases such as this when the
person terminated is the sole union organizer.” Id. And the
Board found that union access was needed because Curaleaf
“deprived its employees of access to accurate information
about a union” by firing Keane. Board Order 5 & n.20.
The dissenting Board member argued that Curaleaf had
met its burden at Wright Line step two, and that “a fair
comparison [between Keane and Hubbard] shows that, if

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anything, [Keane] was treated more leniently” than Hubbard.
Board Order 8–9. The dissenting member also objected to the
Board’s notice-reading and union-access remedies. Board
Order 10.
II
The Board had jurisdiction under 29 U.S.C. § 160(a). We
have jurisdiction under 29 U.S.C. § 160(e) and (f).
Our review of the Board’s unfair labor practice decisions
“is tightly cabined[,] and we afford the Board a ‘high degree of
deference.’” Inova, 795 F.3d at 80 (quoting Parsippany Hotel
Mgmt. Co. v. NLRB, 99 F.3d 413, 419 (D.C. Cir. 1996)). We
will uphold a decision of the Board if its findings are supported
by substantial evidence, it applies the proper legal standard,
and it does not depart from precedent without reasoned
explanation. Id.
Our review of the Board’s remedies is similarly
deferential. “The Board’s discretion in fashioning remedies
under the Act is extremely broad and subject to very limited
judicial review.” Fallbrook Hosp. Corp. v. NLRB, 785 F.3d
729, 738 (D.C. Cir. 2015) (quoting St. Francis Fed’n of Nurses
& Health Pros. v. NLRB, 729 F.2d 844, 848 (D.C. Cir. 1984)).
III
We hold that the Board’s finding that Curaleaf unlawfully
fired Keane is not supported by substantial evidence. Because
the Board imposed the notice-reading and union-access
remedies in response to Curaleaf’s firing of Keane, those
remedies cannot be enforced. We grant the Board’s cross-
application for enforcement as to the uncontested unfair labor
practices.

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A
We need not decide whether the Board properly concluded
that Wright Line step one was satisfied because the Board’s
finding at Wright Line step two is not supported by substantial
evidence. The record demonstrates that Curaleaf adhered to its
neutral discipline policy and so would have fired Keane
regardless of her union activity. The record also contains no
evidence of disparate treatment based on union activity.
Under Board precedent, an employer that follows its
established discipline policy carries its Wright Line step two
burden “absent evidence of disparate treatment.” Mid-
Mountain Foods, Inc., 350 N.L.R.B. 742, 743 (2007); see
Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 475–476
(D.C. Cir. 2020).
Curaleaf explained to the Board that Keane’s discharge
was a straightforward application of Curaleaf’s established
discipline policy. See Board Order 3. By the time of her
termination, Keane had already committed and been cited for
eleven violations of Curaleaf policy. She had also received the
appropriate warnings prescribed for each of the preceding three
discipline stages: a verbal warning, a written warning, and a
final written warning. The Board did not dispute either
Keane’s lengthy pattern of violations or that her discharge fell
squarely within the discipline policy’s terms.
Instead, the Board found that Curaleaf had not met its
burden of proof at Wright Line step two because, in its view,
Curaleaf’s discipline policy “removes any strict adherence to
[Curaleaf’s] 4-step disciplinary process by reserving to
[Curaleaf] ‘the right in its sole discretion, to combine or skip
progressive discipline steps[.]’” Board Order 3. The Board
also found that Curaleaf “did not grant Keane the same
leniency that it granted” Hubbard. Board Order 4.

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Neither of those findings is supported by substantial
evidence.
1
Begin with the Board’s finding that Curaleaf’s policy did
not require strict adherence to each step of its discipline policy.
The problem for the Board is that, while Curaleaf reserves its
discretion to skip discipline steps, Curaleaf never exercised that
discretion against Keane. Quite the opposite. Keane received
every chance to correct her behavior that the policy offers.
Curaleaf, in other words, hewed to each step of its discipline
policy.
Remember that Curaleaf first reviewed Keane’s ability to
continue working successfully as a budtender after she made
seven allotment errors in one transaction, including failing to
check a patient’s medical marijuana card and failing to log the
transaction as required by Arizona law. See J.A. 134; Tr.
139:3–142:11. After the Curaleaf Gilbert general manager
discovered the mistakes, he emailed senior Curaleaf
management about the transaction and expressed “concern[]
that [Keane] is not cut out for budtending” because in his
“[four] years of management [he had] never come across a
transaction that is quite this bad.” J.A. 139. A Curaleaf
Arizona manager replied: “Holy cow that is definitely by
definition a night mare transaction. I do believe we need to
follow t[he] progressive disciplinary policy and the written
[warning] is the correct path to go.” J.A. 139 (emphasis added).
Similarly, the Curaleaf Arizona manager later testified before
the administrative law judge that Keane’s seven-error
transaction was “the most horrendous transaction” he had seen
in his five-and-a-half years. Tr. 139:10. Nothing in the record
suggests (and the Board never found) that any of these often-
contemporaneous expressions were insincere or pretextual.

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Curaleaf again considered Keane’s tenure after her second
transaction with allotment errors. In that transaction, Keane
“r[ang] up a patient under an incorrect profile with an expired
medical card and fail[ed] to inform management of the
mistake.” Board Order 2; J.A. 136–137. The Curaleaf Gilbert
general manager emailed Curaleaf Arizona’s human resources
director about the transaction, asking for permission “to give
[Keane] a final written warning or terminate her position[.]”
J.A. 142–143. In response, the human resources director—who
had just days earlier become aware of Keane’s union
organizing activities—agreed that Keane’s error was
“extreme[.]” J.A. 142. Nonetheless, she declined to fire
Keane, explaining that, “[b]ecause [Keane’s] last [warning]
was a verbal/written we will need to make this her last and final
warning.” J.A. 142 (emphasis added). The director added that
any future infractions “would result in termination.” J.A. 142.
That Curaleaf management found Keane’s growing
pattern of errors to be so unprecedentedly and nightmarishly
egregious, but nonetheless recognized that they needed to
follow the discipline policy, speaks volumes to Curaleaf’s
commitment to that policy.
More relevantly, Curaleaf’s forbearance continued even
after Curaleaf learned of Keane’s union activity. Tr. 162:2–8.
Instead of wielding its discretion to skip the final written
warning and fire Keane, Curaleaf adhered to its discipline
policy and gave Keane one more chance.
Nothing in how Curaleaf allowed Keane chance after
chance to correct her serious misbehavior remotely suggests a
misuse of its discretion or the slightest deviation from its
discipline policy. Rather, Curaleaf forwent its discretion and
gave Keane every opportunity to continue her employment
both before and after learning of her union activity.

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The Board does not meaningfully address those facts.
Instead, it relies on two quotations from Curaleaf managers to
demonstrate that Curaleaf was not bound to follow its
progressive discipline policy. First, one low-level manager
mistakenly told Keane that it would take “at least four cash
handling incidents to be fired.” Board Order 4 (quotation
marks omitted). The Board believes this statement exemplifies
Curaleaf’s discretion under its policy because it “calls into
question [Curaleaf’s] claim that employee discipline, in
practice, has historically been administered in accordance with
its written policy.” Board Order 4 n.14; Board Br. 31. Second,
another Curaleaf manager opined that, “since we have given
[Keane] a final written warning I think [the final $20 shortage]
could be her last.” Board Br. 32 (emphasis added by Board)
(quoting J.A. 109). The Board reasons that the manager’s
equivocation proves that Curaleaf had discretion under its
policy. Board Br. 32.
The Board’s reliance on these quotations misses the mark.
No one disputes that Curaleaf had discretion to cut short the
steps in its discipline policy. But the mere existence of
unexercised discretion is not by itself sufficient to demonstrate
that Curaleaf deviated from its settled policies to fire Keane.
See Stern Produce v. NLRB, 97 F.4th 1, 15–16 (D.C. Cir. 2024)
(holding that the Board’s finding of disparate treatment was not
supported by substantial evidence because the employer
followed its progressive discipline policy, even though the
employer had discretion to skip steps). What matters instead is
how Curaleaf exercised its discretion in Keane’s case. The
record demonstrates that Curaleaf stuck to its policy by moving
through every one of its prescribed discipline steps even in the
face of Keane’s nightmarish pattern of violations.

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2
The Board also rested its decision on its conclusion that
Curaleaf had treated Keane more harshly than it had treated
Hubbard. The record forecloses that finding. Keane was fired
for her twelfth violation, while Hubbard was fired for his
seventh violation. See Board Order 2, 4.1 That discrepancy
indicates that Curaleaf treated Keane more leniently than it did
Hubbard. Furthermore, Curaleaf fired both Hubbard and
Keane for their first $20 drawer shortage only after they had
received final written warnings. That shows consistency, not
disparity, in Curaleaf’s treatment of union and non-union
employees.
The Board reasoned that Curaleaf’s treatment of Hubbard
and Keane was inconsistent because “Keane’s only
comparator, Hubbard, accrued 7 cash-handling violations,”
while “Keane was disciplined for four separate transactions,
[and] had only 2 cash-handling discrepancies when [Curaleaf]
fired her.” Board Order 4 (emphases added). That analysis
contains at least three serious missteps.
First, the comparison between transactions and mistakes
compares apples to oranges because Keane’s erroneous
1 Some of the warnings issued to Keane and Hubbard may have
double-counted some violations. See Board Order 8 n.4, 9 n.10
(Member Ring, dissenting); Curaleaf Br. 25 n.8. It appears that
Keane committed eleven or twelve distinct infractions, while
Hubbard committed six or seven. Because the Board’s majority
found that Keane had twelve errors and Hubbard had seven, Board
Order 2, 4, and neither party has demonstrated that these findings are
clearly erroneous, we defer to the Board’s counting. At any rate, the
exact number of violations does not change the bottom line: Keane
had more total violations than did Hubbard.

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transactions contained multiple mistakes—including one
transaction that had seven mistakes. See Board Order 2.
Second, the Board’s focus on Keane’s cash-handling
mistakes takes too narrow a view of the record. The Board
ignored the fact that Curaleaf does not distinguish between
types of mistakes when escalating discipline. Curaleaf’s
human resources director testified that “all performance is
lumped into the one bucket[,]” and that Curaleaf does not
distinguish between cash-handling and allotment errors. Tr.
153:23–154:7. That testimony was unrebutted.
The Board never acknowledged, let alone grappled with,
this evidence, even though the record reflects that Curaleaf
acted consistently with that approach. Specifically, Curaleaf
did not distinguish between cash-handling and allotment errors
when progressing Keane’s discipline. Curaleaf gave Keane a
verbal warning after a cash-handling error, issued Keane
written warnings after transactions with multiple allotment
errors, and fired Keane after a final cash-handling error. In
other words, Curaleaf fired Keane not for her second cash-
handling error, but for her twelfth overall error. As such, the
record does not show that Curaleaf tolerated more mistakes
from Hubbard; it shows that Curaleaf tolerated more mistakes
from Keane.
Third, the Board erred when rejecting Curaleaf’s argument
that Keane’s errors were more serious than Hubbard’s. The
Board found that both cash-handling and allotment errors
“implicate[] compliance issues set forth in” Arizona medical
marijuana law, so Keane’s and Hubbard’s errors “were equally
severe.” Board Order 4. Yet if Hubbard’s and Keane’s
individual mistakes were equally severe, then Keane’s twelve
errors are still cumulatively worse than Hubbard’s seven errors.

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The Board simply ignored all of this evidence. That will
not do. The Board cannot ground its decisions in a skewed or
“clipped view” of the record. Lakeland Bus Lines, Inc. v.
NLRB, 347 F.3d 955, 963 (D.C. Cir. 2003). Nor can it “fail[]
to grapple with [Curaleaf’s] formal rules and standard
practices” as evidenced in the record. Stern Produce, 97 F.4th
at 15. Its finding of disparate treatment has no anchor in the
full record and cannot be sustained.
Because the Board’s reading of the record is not
“reasonably defensible[,]” we grant Curaleaf’s petition for
review as to the unlawful-discharge finding and deny the
Board’s cross-application for enforcement. Dean Transp., Inc.
v. NLRB, 551 F.3d 1055, 1061 (D.C. Cir. 2009) (quoting
Pennsylvania Transformer Tech., Inc. v. NLRB, 254 F.3d 217,
224 (D.C. Cir. 2001)). We also deny the Board’s cross-
application for enforcement as to the reinstatement and
backpay remedies that were imposed to redress Keane’s
termination.
B
For similar reasons, we grant Curaleaf’s petition for
review and deny the Board’s cross-application for enforcement
as to the Board’s notice-reading and union-access remedies.
Notice reading and union access are extraordinary
remedies, and the Board must explain why they are necessary
to address some particularized need unmet by ordinary
remedies. United Food & Com. Workers Int’l Union, AFL-CIO
v. NLRB, 852 F.2d 1344, 1348 (D.C. Cir. 1988) (“[W]e will not
enforce [notice-reading] orders when the record fails to
indicate ‘particularized need’ for the order.”) (quoting
Teamsters Local 115 v. NLRB, 640 F.2d 392, 403 (D.C. Cir.
1981)); United Steelworkers, 646 F.2d at 640 (declining to
enforce a union-access remedy where Board made “a

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conclusory assertion in a footnote that extraordinary remedies
were ‘essential’”). Such extraordinary remedies can only be
justified as “remedial action” for specific, flagrant violations
that have already occurred, and cannot be justified as
preventative “punitive measures” designed to deter future
violations. Florida Steel Corp. v. NLRB, 713 F.2d 823, 828
(D.C. Cir. 1983) (formatting modified); see id. at 835.
Here, the Board’s central justification for those
exceptional remedies was to address the effects of Curaleaf’s
firing of Keane. The Board explained that it was ordering
notice reading because Curaleaf “engaged in serious unfair
labor practices[.]” Board Order 5. The Board called out
Keane’s dismissal “[i]n particular,” explaining that “[t]he
Board has long recognized that unlawful terminations are
destructive to [workers’] rights, * * * especially * * * in cases
such as this when the person terminated is the sole union
organizer.” Id. (formatting modified). Similarly, the Board
ordered union access because Curaleaf “deprived its employees
[of] accurate information about a union” by firing Keane. Id.
Because Curaleaf’s firing of Keane was lawful, the
Board’s explanation for imposing notice-reading and union-
access remedies comes up short. We therefore vacate the
portion of the Board’s decision ordering those remedies. See
Bozzuto’s Inc. v. NLRB, 927 F.3d 672, 692–693 (2d Cir. 2019)
(declining to enforce notice-reading remedy after the court
overturned an unlawful-discharge finding).
C
Finally, Curaleaf does not dispute that it violated the
National Labor Relations Act by (1) threatening employees’
tips if they unionized; (2) promising employees benefits if they
did not unionize; and (3) creating an impression of
surveillance. Curaleaf also abandoned any challenge to those

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19
findings before the Board. Curaleaf Br. 11 n.6. We therefore
summarily enforce the Board’s findings and order as to those
three uncontested labor violations. See, e.g., Allied Mech.
Servs., Inc. v. NLRB, 668 F.3d 758, 765 (D.C. Cir. 2012).2
IV
Because the Board’s decision that Curaleaf unlawfully
fired Keane is not supported by substantial evidence, we grant
Curaleaf’s petition for review and deny the Board’s cross-
application for enforcement to the extent that it seeks to enforce
the unlawful discharge finding and the notice-reading and
union-access remedies. We grant the Board’s cross-application
for enforcement as to the three uncontested unfair labor
practices.
So ordered.
2 The Board did not find that Curaleaf’s uncontested violations alone
justify the notice-reading and union-access remedies, so that
question is not before us. Having granted Curaleaf’s petition on
statutory grounds, we likewise express no view on Curaleaf’s
constitutional challenges to those remedies. Finally, the court
expresses no view on the merits of the agency-authority issue raised
in the concurring opinion because neither party raised it before either
this court or the Board. See Woelke & Romero Framing, Inc. v.
NLRB, 456 U.S. 645, 665–666 (1982).

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WALKER , Circuit Judge, concurring:
Congress empowered the National Labor Relations Board
to protect the labor rights of certain employees of certain
employers that affect interstate commerce.1 It is an undeniably
broad grant of jurisdiction. But it may not be quite as broad as
the NLRB assumes.
Consider the facts of this case. The NLRB ordered a
criminal enterprise called Curaleaf Gilbert to pay a drug dealer
to sell illegal drugs.2 That is a curious order from the branch
of government tasked with faithfully executing federal law.3
I can imagine three arguments in favor of the NLRB’s
jurisdiction over marijuana dispensaries like Curaleaf, but each
has flaws.
First, many people believe marijuana should be legal.
There are thoughtful people on both sides of that policy debate,
and momentum may well be toward legalization.4 But for now,
marijuana remains illegal at the federal level, notwithstanding
the Department of Justice’s nonenforcement.5
1 See 29 U.S.C. § 152(2), (3), (7).
2 See generally 21 U.S.C. §§ 812(c), 841(a), 844(a) (prohibiting
cultivation, distribution, or possession of marijuana).
3 U.S. Const. art. II, § 3.
4 See, e.g., Schedules of Controlled Substances: Rescheduling of
Marijuana, 89 Fed. Reg. 44597-01 (proposed May 21, 2024).
5 See, e.g., Department of Justice, Memorandum to United States
Attorneys: Guidance Regarding Marijuana Enforcement, at 3-4
(2013), https://perma.cc/F4FX-LXV3.

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2
Second, Arizona law allows Curaleaf to sell marijuana.6
But federal criminal prohibitions preempt conflicting state
law.7 And those prohibitions cannot be displaced by an agency
advisory memo.8
Third, the NLRB usually retains jurisdiction even after an
employer breaks a law. Indeed, Congress tasked the NLRB
with holding employers accountable when they violate federal
labor law. But that’s when the enterprise is otherwise
legitimate — not necessarily when its sole aim is to sell an
illegal product or provide an illegal service.9
That distinction may be more significant than the NLRB
appreciates. After all, rings of bookies and counterfeiters affect
interstate commerce, but the NLRB does not seem eager to
adjudicate their labor disputes. Ditto for street gangs.
Why does that change when a corner boy calls himself a
“budtender” and his crew incorporates under state law?
To me, at least, the answer is hazy.
6 Ariz. Rev. Stat. Ann. §§ 36-2852, 36-2854 (2020).
7 U.S. Const. art. VI, cl. 2.
8 See, e.g., NLRB, Advisory Memorandum: High Level Health, at 3-
4 (2015), https://perma.cc/Z6Y8-VDVV; NLRB, Advisory
Memorandum: Wellness Connection of Maine, at 10 (2013),
https://perma.cc/5H53-HYMG.
9 Cf. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892-93 (1984).

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