Ghg Management LLC, D/ B/ A Windy City Cannabis , D/ B/ Acuraleaf Weed Street v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2023 Decided July 9, 2024
No. 22-1312
GHG M ANAGEMENT LLC, D/ B/ A W INDY CITY C ANNABIS ,
D/ B/ A CURALEAF W EED STREET ,
PETITIONER
v.
NATIONAL L ABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with 23-1015
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Maurice Baskin argued the cause for petitioner. With him
on the briefs was Stefan Marculewicz.
Gregoire F. Sauter, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. On the brief
were Jennifer Abruzzo, General Counsel, Ruth E. Burdick,
Deputy Associate General Counsel, David S. Habenstreit,

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Assistant General Counsel, Usha Dheenan, Supervisory
Attorney, and Jared D. Cantor, Senior Attorney.
Before: SRINIVASAN , Chief Judge, HENDERSON , Circuit
Judge, and ROGERS , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN .
SRINIVASAN , Chief Judge: In 2021, employees at a
Chicago cannabis dispensary voted on whether to be
represented by a union. After voting commenced, the union
and employer agreed to extend the election timeline to account
for apparent delays in mail delivery. During the time
extension, the National Labor Relations Board Agent
overseeing the election told the parties that the office had
received ballots from all voters who said they had mailed them.
The Board Agent, however, did not relate that a ballot had yet
to be received from another voter who had said she planned to
mail hers. The vote count took place a few days later, with the
union prevailing by one vote. The following day, the
outstanding ballot arrived.
The company objected to the validity of the election,
including based on the failure to count the last-arriving ballot.
The Board denied the objections and certified the union. The
company now seeks review of the Board’s certification. The
company claims, among other things, that the Board Agent’s
communication about outstanding ballots misled the parties
and affected the outcome of an election that had been decided
by one vote.
In rejecting that objection, the Board applied a line of
decisions allowing for setting aside an election only when a
party establishes reasonable doubt about the election’s validity
and fairness. The Board rejected the company’s argument that

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it should have applied an alternate line of decisions that would
permit setting aside an election based on a lesser showing of
prejudice—if there has been possible outcome-determinative
disenfranchisement.
In defending its approach in our court, the Board does not
dispute that the company’s objection might have been
sustained under the latter test; it instead argues only that
applying the former test was correct. The Board, however, has
failed to provide a coherent explanation for why the first test
applies instead of the second. For that reason, we are unable to
sustain the Board’s decision.
I.
A.
This case concerns an effort to unionize the “product
specialists” at the Curaleaf store on West Weed Street in
Chicago, Illinois. In January 2021, United Food and
Commercial Workers Local 881 petitioned the National Labor
Relations Board to administer a vote to determine whether the
union would be the exclusive collective-bargaining
representative for the dispensary’s product specialists.
The union and Curaleaf entered into a stipulated
agreement setting out the terms of the election. The parties
agreed that the election would occur by mail under the
following timeline: the Board’s Regional Office would mail
ballots to eligible voters on February 25; the ballots would be
due back to the Regional Office by March 19; and the Regional
Office would count the ballots on the morning of March 22.
The parties stipulated that “[i]f any eligible voter does not
receive a mail ballot or otherwise requires a duplicate mail
ballot kit, he or she should contact the [Regional Office] by no
later than 5:00 p.m. CST on March 4, 2021 in order to arrange

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for another mail ballot kit to be sent to that employee.” J.A.
108.
One employee, Lisa Wratten, found herself in need of such
a replacement ballot. Wratten did not receive an original ballot
because she moved without updating her address with the
employer. In early March, Wratten conveyed to the Board
Agent that she needed a replacement ballot to be sent to her
new address. The Agent texted Wratten on March 10, telling
her that a duplicate ballot had been sent that day, and texted her
again on March 15 to ask whether she had received that
duplicate ballot. The following day, Wratten confirmed she
had received the ballot and said she was mailing it that day. (In
fact, Wratten did not mail the ballot until March 18.)
Around this time, the parties agreed to extend the election
timeline. On March 19—the day the ballots were originally
due back to the Regional Office, and three days before the
count was to take place—the parties entered into a second
stipulated agreement. That agreement noted that, as of that
date, the Regional Office had received only fifteen of the thirty
ballots that had been mailed to voters, so “[t]here [was] a
concern that not all . . . ballots mailed back to the Regional
Office [had] been received.” Id. at 58–59. Curaleaf and the
union agreed on a new deadline: to be counted, ballots had to
be received by March 31. The Regional Office issued a
corresponding order.
The Board Agent and parties later exchanged a series of
emails about outstanding ballots. On March 22, the Agent
emailed the lawyers for Curaleaf and the union, writing:
[T]he 3 ballots I had been expecting plus a
couple more came in to our office late [on
March 19]. So we’ve received ballots from all

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at least that have told me that they sent their
ballots in.
Id. at 61. Wratten’s ballot was not one of those three ballots,
even though Wratten had days earlier told the Board Agent she
had mailed her replacement ballot. The Board Agent’s email
concluded by saying that, because the Regional Office had
received “about” twenty ballots, she “expect[ed]” to “go[]
forward with the count on [March 31].” Id.
Adhering to that plan, the Regional Office counted the
ballots on March 31. The union prevailed by one vote: eleven
to ten. The same day, Curaleaf emailed the Regional Office
asking it to retain any late-arriving ballots. The company
explained that, given the one-vote margin, it was concerned
that mail delays might have affected the election outcome. The
Board Agent responded to the company and union, agreeing to
the company’s request and adding: “As you both know, as of
[March 18,] before the original count scheduled on [March 22],
there were 3 voters that had separately informed me they
mailed their ballot but we had not received them at my office.
That led us to reschedule the count. Those 3 voters’ ballots
were then received the following day, on [March 19]. Thus,
we received a ballot from each voter that had contacted me.”
Id. at 62.
The next day, Wratten’s ballot arrived at the Regional
Office. The Board Agent emailed the parties to let them know
the office had received Wratten’s ballot, and to explain why
that ballot was not one of the three outstanding ballots
described in the prior email exchanges:
While [Wratten] contacted me to request the
duplicate, she did not request that I confirm we
received her ballot, so she was not “on my
radar” to contact upon receiving her ballot. In

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any event, I’d like to clarify my statement [in
the email exchange] below, “we received a
ballot from each voter that had contacted me,”
such that we received a ballot from those that
contacted me to ask that I confirm when their
ballot has been received by my office.
Id. at 62. The Regional Office received no additional ballots.
B.
Curaleaf raised various objections to the election and
asked that a new, in-person election be held. Four objections,
Objections 1, 2, 4, and 5, remain relevant.
In Objections 1 and 2, the company alleged that actions by
the Regional Office or Board Agent caused outcome-
determinative voter disenfranchisement. In Objection 1, the
company claimed disenfranchisement resulted from the
Regional Office’s delay in processing ballots and from
“extraordinary and arbitrary delays with the United States
Postal Service.” J.A. 115. In Objection 2, the company
claimed that disenfranchisement resulted from the Board
Agent’s “fail[ure] to notify the parties that the Region was
aware that at least one voter [i.e., Wratten] had returned a ballot
but it had not been received by the Region as of the ballot
count.” Id. at 115–16. In Objection 4, the company asserted
that the Regional Office wrongfully “force[d] postponement”
of the ballot count. Id. at 116. And in Objection 5, the
company alleged that the Board’s failure to issue a second
Notice of Election with the updated election timeline was either
a “per se” procedural violation that required setting aside the
election or an objectionable election “irregularity.” Id. at 134,
147; see id. at 116.

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The Board’s Acting Regional Director rejected all of
Curaleaf’s objections and certified the union as the employees’
representative. The Board granted Curaleaf’s request for
review, but only as to Objection 2, thereby giving its
“imprimatur” to, and making final, the Acting Regional
Director’s determinations with respect to Objections 1, 4, and
5. UC Health v. NLRB, 803 F.3d 669, 680 (D.C. Cir. 2015).
Objection 2, as just noted, alleged that the Board Agent
“affected the outcome of the election by misrepresenting the
status of” Wratten’s ballot. GHG Mgmt. LLC, 371 N.L.R.B.
No. 93, at 1 (Apr. 21, 2022). The Board explained that the “test
for setting aside an election based on regional office conduct is
whether the alleged irregularity raises ‘a reasonable doubt as to
the fairness and validity of the election,’” a standard that
requires the objecting party to show “actual prejudice”—i.e.,
“prejudicial harm” that is “more than speculative.” Id. at 2
(quoting Guardsmark, LLC, 363 N.L.R.B. 931, 934 (2016)).
That burden, the Board determined, had not been met by
Curaleaf. The Board assumed “that the Board Agent’s March
22 email misled the parties” into thinking “that the Region had
received all [of] the outstanding ballots.” Id. Even so, the
Board found, the company was unable to show anything more
than conjectural harm. Id. While Curaleaf argued that it would
have sought a second extension had it known about Wratten’s
outstanding ballot, the Board found the possibility of prejudice
to be speculative: “Even assuming” Curaleaf would have
sought a second extension and the union would have agreed,
the Board observed, “the Acting Regional Director was under
no obligation to grant a second extension[,] and it would not
have been an abuse of discretion to deny a request for a second
extension based on one possibly outstanding ballot.” Id.
(parentheses omitted).

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One Board member dissented. Id. at 2 n.7. Unlike the
majority, the dissenting member did not find it dispositive that
the Acting Regional Director could have refused to approve a
second extension: in such an event, the dissenting member
suggested, Curaleaf “could have sought extraordinary relief,”
including by asking a Board panel to review the decision. Id.
at 3 n.7 (citing 29 C.F.R. § 102.67(j)).
Following the Board’s decision, the union sought to
bargain with Curaleaf, Curaleaf refused, and the Board’s
General Counsel brought an administrative complaint against
the company claiming it committed unfair labor practices by
refusing to recognize and bargain with the union. As a defense,
the company reasserted its challenge to the union’s
certification. The Board granted the General Counsel’s motion
for summary judgment. GHG Mgmt. LLC, 372 N.L.R.B. No.
13, at 1 (Dec. 5, 2022).
Curaleaf filed a petition in our court seeking review of the
unfair labor practice order, and the Board filed a cross-
application seeking enforcement of the order.
II.
Curaleaf argues that the Board was wrong to overrule the
company’s objections under the legal tests the Board applied.
But the company also contends as an antecedent matter that the
Board applied the wrong tests, or, at the very least, failed
adequately to explain its reasons for applying one test instead
of another. We agree with the last of those contentions: we
find that the Board failed to justify its application of different
tests to different objections, so we are unsure whether the
Board’s approach was reasonable in light of its precedent. We
thus do not reach the question whether the Board properly
overruled the objections under the tests it applied.

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We have jurisdiction pursuant to Section 10 of the
National Labor Relations Act, which permits the Board to
petition for enforcement of an unfair labor practice order, and
permits “[a]ny person aggrieved by a final order of the Board”
to “obtain review” of that order. 29 U.S.C. § 160(e), (f). While
the Board’s certification of the election is not a final order, it is
indirectly reviewable because “the dispute concerning the
correctness of the certification eventuate[d] in a finding by the
Board that an unfair labor practice ha[d] been committed” by
Curaleaf based on its “refus[al] to bargain with a certified
representative on the ground that the election was” improper.
Boire v. Greyhound Corp., 376 U.S. 473, 477 (1964).
“As we have noted many times before, our role in
reviewing [a Board] decision is limited,” Stephens Media, LLC
v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir. 2012) (citation and
internal quotation marks omitted), and we are particularly
deferential to Board decisions regarding representation
elections, see Am. Bottling Co. v. NLRB, 992 F.3d 1129, 1136
(D.C. Cir. 2021). That said, “deference is not warranted where
the Board fails to adequately explain its reasoning” or “leaves
critical gaps in its reasoning.” DHL Express, Inc. v. NLRB, 813
F.3d 365, 371 (D.C. Cir. 2016) (citations and internal quotation
marks omitted). That is the case here.
The parties’ dispute over whether the Board evaluated the
company’s objections under the correct test centers on two tests
that derive from separate lines of Board decisions: the
“possible-disenfranchisement test” and the “reasonable-doubt
test.” While the Board also relied on other more specific Board
precedent—for example, Board decisions that address how to
evaluate mail irregularities—the two aforementioned tests
provided the overarching framework for the Board’s evaluation
of the company’s objections. And there is no dispute that the
difference between the two tests can be a material one in that,

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as we explain next, one requires a greater showing of prejudice
than the other. As a result, the absence of any coherent
explanation by the Board concerning when one test or the other
applies is a threshold problem that calls for remanding the
matter for further explanation before going on to address any
specific contentions about the application of either test: we can
only address the application of a test to a given objection after
first determining which test governs the analysis.
The Board often relies on the first test, the possible-
disenfranchisement test, when a party objects that an election
irregularity led to outcome-determinative voter
disenfranchisement. That test, the Board has explained,
“applies an objective standard to potential disenfranchisement
cases in order to maintain the integrity of [the Board’s] own
election proceedings.” Garda World Sec. Corp., 356 N.L.R.B.
594, 594 (2011) (citing Wolverine Dispatch, Inc., 321 N.L.R.B.
796, 797 (1996)). “Under that standard, an election will be set
aside if the objecting party shows that the number of voters
possibly disenfranchised by an election irregularity is sufficient
to affect the election outcome.” Id. (emphasis added). Thus,
a party need not show that “any voters” were “actually
disenfranchised” by the irregularity. Wolverine Dispatch, 321
N.L.R.B. at 797. As an adjunct to the possible-
disenfranchisement test, moreover, the Board will sometimes
invoke still another test, the “notice-and-opportunity test,”
under which an election will be upheld if “there [was] adequate
notice and opportunity to vote and employees [were] not
prevented from voting by the conduct of a party or by
unfairness in the scheduling or mechanics of the election.”
Lemco Constr., Inc., 283 N.L.R.B. 459, 460 (1987).
The Board will sometimes apply the alternative test, the
reasonable-doubt test, when a party complains that an action by
a Board agent or regional office should invalidate an election.

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As the Board has explained: “The test for setting aside an
election based on regional office conduct is whether the alleged
irregularity raised ‘a reasonable doubt as to the fairness and
validity of the election.’” Guardsmark, 363 N.L.R.B. at 934
(quoting Polymers, Inc., 174 N.L.R.B. 282, 282 (1969),
enforced, 414 F.2d 999 (2d Cir. 1969)). That test calls for a
more demanding showing of prejudice than the possible-
disenfranchisement test. In particular, to meet the reasonable-
doubt test’s burden, “[t]he objecting party’s showing of
prejudicial harm must be more than speculative.” Id.
Curaleaf principally objects to the Board’s application of
different tests to Objection 1 and Objection 2. Objection 1,
recall, alleged that ballot-processing delays attributable to the
Regional Office and mail delays caused by the Postal Service
led to outcome-determinative voter disenfranchisement. To
overrule that objection, the Board (in the form of the Acting
Regional Director, whose determination was left undisturbed)
seemed to rely primarily on the possible-disenfranchisement
test along with the notice-and-opportunity adjunct. In our
court, the General Counsel accordingly defends the
applicability of those tests to that objection.
The Board chiefly relied on the alternate test, the
reasonable-doubt test, when overruling Objection 2. That
objection alleged that the Board Agent misled the parties about
the status of Wratten’s ballot and therefore caused her ballot to
go uncounted. The Board said the reasonable-doubt test is the
correct “test for setting aside an election based on regional
office conduct.” GHG Mgmt. LLC, 371 N.L.R.B. No. 93, at 2.
In our court, the General Counsel thus defends the application
of the reasonable-doubt test to Objection 2.
Curaleaf argues that the Board failed adequately to explain
why one test rather than the other applied to the company’s

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objections. Most pointedly, the company contends that the
Board should have applied the possible-disenfranchisement
test to Objection 2. In response, the General Counsel does not
deny that Objection 2 might have been sustained had the Board
applied the possible-disenfranchisement test rather than the
reasonable-doubt test. Instead, the General Counsel’s position
hangs entirely on its contention that it was correct to evaluate
Objection 2 under the reasonable-doubt test.
The General Counsel’s explanation in that regard falls
short. The General Counsel accepts that some actions of a
regional office or Board agent relating to an election can be
evaluated under the possible-disenfranchisement test rather
than the reasonable-doubt test. According to the General
Counsel, the Board’s choice between the two tests turns on
whether the objection concerns Board “misconduct”: the
possible-disenfranchisement standard “applies to objections,
such as Objection 1, where the allegation entails employees
being ‘prevented from voting by the conduct of a party or by
unfairness in the scheduling or mechanics of the election,’” but
“it is not the governing standard for agent-misconduct
objections.” NLRB Br. 39 (quoting Lemco, 283 N.L.R.B. at
460). And, the General Counsel adds, the “fact that a
misconduct-based objection also claims resulting voter
disenfranchisement does not render inapplicable the
reasonable-doubt test or the necessity of proving non-
speculative prejudice.” Id. at 38 (emphasis added) (citing
Guardsmark, 363 N.L.R.B. at 934 & n.14).
In sum, the General Counsel asserts that the reasonable-
doubt test displaces any other test when Board “misconduct” is
at issue, even if that misconduct is alleged to have caused
disenfranchisement. The General Counsel concludes that the
Board was correct to evaluate Objections 2, 4, and 5 under the

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reasonable-doubt test because those objections ostensibly
concerned Board misconduct while Objection 1 did not.
We cannot accept the General Counsel’s effort to justify
the Board’s approach. To start, we are unable say that the
choice between the tests turns on the presence or absence of
Board “misconduct” because we do not know what that term
means in this context. The General Counsel contends that
“[t]he numerous cases cited by” Curaleaf “are unavailing”
because, “unlike Objection 2, none of them analyze objections
based on alleged misconduct by a Board regional office or
agent.” Id. at 39 (emphasis added). Those cases, the General
Counsel asserts, “involve regional offices’ failure to (timely)
send ballots (or duplicate ballots) to voters” or involve Board
agents’ “clos[ing] the polls or fail[ing] to open them when they
were scheduled to be open.” Id. at 39–40.
It is not at all apparent, though, why a regional office’s or
Board agent’s failure to timely mail ballots or to keep the polls
open at scheduled times would not qualify as Board
“misconduct.” Indeed, the General Counsel sometimes
describes misconduct as “improper conduct of the Board’s
regional office or its agent.” Id. at 31 (emphasis added). We
are left wondering: why is it not “improper conduct” to fail to
send ballots in a timely fashion or to close the polls when they
are supposed to be open? The General Counsel’s unelaborated
assertion that those actions are not “misconduct” because they
occurred in “factually and legally distinct situation[s]” is
unhelpful. Id. at 40.
In addition, the Board in the proceedings below did not
offer—much less rely on—the explanation the General
Counsel now presents to us. The Board did not indicate that
the proper test hinges on the presence or absence of
“misconduct,” however defined. Instead, when overruling

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Objection 2, the Board simply asserted that the reasonable-
doubt test applies when a party complains that “regional office
conduct” merits “setting aside an election.” GHG Mgmt. LLC,
371 N.L.R.B. No. 93, at 2. And the Board did not explain what
factual or legal considerations dictated the application of
different tests to Objections 1 and 2. The Board, that is, did not
justify treating the Board Agent’s allegedly misrepresenting
the status of an outstanding ballot (Objection 2) differently
from her allegedly failing to promptly send a replacement
ballot (Objection 1), even though Curaleaf argued that both
actions led to outcome-determinative disenfranchisement and
should thus be evaluated under the same (possible-
disenfranchisement) standard.
To be sure, the Board might not need to offer a fuller
explanation if its approach were compelled by clear Board
precedent: while we “may not accept [the General Counsel’s]
post hoc rationalization for agency action,” Temple Univ.
Hosp., Inc. v. NLRB, 929 F.3d 729, 734 (D.C. Cir. 2019)
(citation omitted), and the Board “must explain why [its own
relevant precedent] is not controlling,” the Board is not
obligated “to distinguish a precedent expressly if the grounds
for distinction are readily apparent,” Antelope Valley Bus Co.
v. NLRB, 275 F.3d 1089, 1092 (D.C. Cir. 2002) (citations
omitted); accord NCR Corp. v. NLRB, 840 F.3d 838, 843 (D.C.
Cir. 2016). But this is not a case in which the Board simply
failed to state the obvious. The General Counsel offers no case
squarely supporting the notion that the presence of Board
“misconduct” means the reasonable-doubt test applies instead
of the possible-disenfranchisement test even when a party
alleges outcome-determinative disenfranchisement.
For example, the General Counsel cites our decision in
American Bottling Co. as evidence of our “express approval”
of its position. NLRB Br. 37–38 (citing Am. Bottling Co., 992

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F.3d at 1140). But while we applied the reasonable-doubt test
there, we had no occasion to engage the possibility that a
different test might apply. And we found that, as a factual
matter, the number of challenged ballots could not be outcome-
determinative. See Am. Bottling Co., 992 F.3d at 1141. So the
decision cannot stand for the proposition that the reasonable-
doubt test necessarily displaces the possible-
disenfranchisement test when “misconduct” is at issue.
Because we cannot uphold a Board order that “failed to
apply the proper legal standard” or that “reflects a lack of
reasoned decisionmaking” by “fail[ing] to offer a coherent
explanation of agency precedent,” we remand this case to the
Board for further explanation. Commc’ns Workers of Am.,
AFL-CIO v. NLRB, 994 F.3d 653, 658 (D.C. Cir. 2021)
(citations omitted). On remand, the Board must justify—or
reconsider—its application of the possible-disenfranchisement
test to Objection 1 and the reasonable-doubt test to Objections
2, 4, and 5. Specifically, the Board must explain when those
(or other relevant) tests apply and why the specific conduct
Curaleaf objects to in this case should be evaluated under one
test instead of another. If the Board continues to believe its
approach was correct, the Board must respond to the
company’s arguments that Objections 2, 4, and 5 should be
evaluated—and indeed sustained—under the possible-
disenfranchisement test.
We thus grant the company’s petition for review only
insofar as we require further explanation from the Board. At
this point, because we express no opinion on whether any of
the company’s objections should be sustained, the Board does
not need to set aside the election.

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* * * * *
For the foregoing reasons, we grant Curaleaf’s petition for
review, deny without prejudice the Board’s cross-application
for enforcement, and remand the case for clarification
consistent with this opinion.
So ordered.

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