Campaign for the Restoration and Regulation of Hemp, THCF, and Presto Quality Care Corporation, as

National Labor Relations Board - Administrative Judge Opinions

Dec 17, 2015

19-CA-143377 (N.L.R.B. Dec. 17, 2015)

JD(NY)–45-15
Portland, OR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CAMPAIGN FOR THE RESTORATION AND REGULATION
OF HEMP, THCF, and PRESTO QUALITY CARE CORPORATION,
A Single Employer and/or Joint Employers
and Case No. 19–CA–143377
MATTHEW MARINO, An Individual
Helena Fiorianti, Esq., Counsel for the General Counsel.
Ann Witte, Esq., Counsel for the Respondent.
DECISION
STATEMENT OF THE CASE
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on October
20, 2015 in Portland, Oregon. The Complaint, which issued on April 28, 2015, and was based
upon an unfair labor practice charge and an amended charge that were filed on December 22,
20141 and February 17, 2015 by Matthew Marino, an individual, alleges that Campaign for the
Restoration and Regulation of Hemp, herein called CRRH, THCF, and Presto Quality Care
Corporation, herein called Presto, a Single Employer and/or Joint Employers, herein called the
Respondent, on about August 25 was hiring or had concrete plans to hire five employees, but
told Marino that it would not hire him and refused to consider him for hire because he joined and
assisted United Campaign Workers, affiliated with Industrial Workers of the World, herein called
the Union,2 and supported an unfair labor practice charge filed by the Union, as well as being
engaged in other protected concerted activities, in violation of Section 8(a)(1)(3)(4) of the Act.
I. JURISDICTION
As stated above, the Complaint names three entities, CRRH, THCF and Presto and
alleges that each has been an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act and that they constitute a single employer and a joint employer within
the meaning of the Act. Respondent’s Answer admits that CRRH has been an Oregon domestic
nonprofit corporation with an office in Portland, Oregon where it is engaged as a public benefit
corporation that promotes medicinal and industrial hemp and cannabis; that THCF has been an
Oregon domestic nonprofit corporation with facilities in Portland, Oregon, where it is engaged as
a public benefit organization that grows cannabis with medical marijuana permits and distributes
it to medical marijuana patients; and that Presto has been a Nevada corporation with offices and
places of business in the States of Oregon, Washington, Nevada, California, Hawaii, Michigan,
Colorado, New Mexico, Rhode Island, Montana, and the District of Columbia where it has been
engaged in the business of operating clinics to help patients obtain medical marijuana permits.
All the other jurisdictional allegations for all three entities are denied, as is the allegation that

1 Unless indicated otherwise, all dates referred to herein relate to the year 2014.
2 In its Answer, Respondent states that it is without sufficient knowledge to admit or deny
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
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they constitute a single employer and/or a joint employer. Shortly before the hearing date,
counsel for the Respondents withdrew from representing them.On the day of hearing, the new
counsel appeared, but without the subpoenaed individuals or any of the numerous documents
subpoenaed from the Respondents by Counsel for the General Counsel, including those
requesting corporate and financial records of the Respondent that relate to jurisdictional
standards as well as the single employer and joint employer issue. At the hearing, Counsel for
the General Counsel requested and was granted permission to proceed under Bannon Mills,
146 NLRB 611, fn. 4 (1964), and introduced into evidence the subpoenas that were not
complied with, affidavits of Paul Stanford3 and William Appel, a Notice posted by the
Respondents on October 29, 2014 together with a Settlement Agreement with the Board signed
by Stanford for the Respondent, and a position statement by the original counsel for the
Respondents, the Day Law Group, P.C.
CRRH, which has an office at 2712 NE Sandy Boulevard in Portland, is a public benefit
corporation whose purpose is to educate people about the medicinal and industrial benefits of
cannabis and the attempts to prohibit it; its funds come from donations from the public. Its
employees engage in canvassing and door to door fundraising for CRRH; the yearly amount of
donations that it received ranged from $150,000 to $250,000 between 2012 and 2014, including
a donation from Presto. Stanford’s affidavit states that although Appel is not an officer of CRRH,
he is more involved in the day to day operations of CRRH than Stanford has been, and has
been involved in the financial operation of CRRH although he has no authority to hire or fire
CRRH employees. From April 2013 to June 2014, it supported two State initiatives by hiring
employees to obtain signatures in support of the initiatives, but this ended due to the lack of
money. CRRH now has three employees whose sole purpose is to produce the Hemp News
and Cannabis Common Sense TV. It also runs the Hempstalk Festival, a yearly event in
Portland, which rents space to exhibitors. In 2014, CRRH received a $100,000 wire transfer
from Texas for its pro-marijuana campaign.
THCF is a domestic nonprofit corporation that grows marijuana and gives it to patients
with permits free of charge. It does not have employees; rather it uses volunteers to distribute
the marijuana. Since it sold its name and property to Presto, it also has no physical office. Appel
oversees the THCF Medical Gardens to be sure that there is enough water, soil and fertilizer at
the gardens, but there is a gardener who oversees it as well. The funds that are used to pay for
the upkeep of the gardens come from a Presto Debit Card maintained by Stanford. There is no
interchange of employees between CRRH and THCF.
Appel is the Chief Operating Officer at Presto, which has its office at 105 SE 18th
Avenue in Portland where Stanford and Appel each have an office. Presto also maintains offices
in Washington and California, where marijuana is legal. Janice Brown is the office manager in
Portland and she hires the employees that Stanford and Appel have authorized for Presto,
except that Stanford hires the doctors who are employed by Presto. It is Appel’s understanding
that the doctors are employed as independent contractors. Presto has about thirty employees at
the 18th Avenue office; Stanford signs their paychecks. Presto’s funding comes from the fees
paid to the doctors at the office. In addition, Presto received a $400,000 wire transfer in 2014
from Canadian investors and in June, Presto donated money to CRRH. Appel’s affidavit states
that he cannot remember the amount of the donation, but $200,000 to $250,000 “sounds like
the right ballpark amount.” Stanford is responsible for all of Presto’s operations, but, with the

3 Pursuant to an Informal Settlement Agreement with the Board in Case No. 19–CA–
131986, Stanford signed the Board Notice as President of the three employers “as Single
Employer and/or Joint Employers.”
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exception of the doctors employed by Presto, he has no role in the hiring, firing or disciplining of
its employees.
Stanford founded both CRRH and THCF and is the president of the three employers. He
is responsible for the executive duties of each of these employers, including making operational
and financial decisions for them, and is the only person with the authority to transact business
on their behalf. In addition, other than the nurses and office employees of Presto, who are hired
by Brown, he is responsible for hiring employees of the three employers and his signature
appears on the paychecks for the employees of all three companies. The bookkeeping, auditing
and accounting for all three employers is handled by the Presto bookkeeper at Presto’s office on
SE 18th Avenue. In about April, he hired an office manager for CRRH, Greg Bourget, who was
responsible for hiring CRRH employees. Bourget left that employment in about April 2014.
The Respondent failed to comply with Counsel for the General Counsel’s subpoenas in
their entirety. There were subpoenas, properly served with courtesy copies to then counsel for
the Respondent, to Stanford, Appel and Kyle Purdy, as well as substantial Subpoena Duces
Tecum to all three employers. A majority of the requests in these subpoenas related to the joint
employer, single employer and jurisdictional allegations, while some of the requests related to
the unfair labor practice allegation. Due to this total lack of compliance with the subpoenas, I
permitted Counsel for the General Counsel to rely upon secondary evidence, principally the
affidavits of Stanford and Appel, because of the absence of direct and more appropriate
evidence which was not produced by the Respondent. Local 30, United Slate, Tile and
Composition Roofers, 227 NLRB 1444, 1449 (1977); McAllister Towing & Transportation Co.,
341 NLRB 394, 416–417 (2004). Respondent’s failure to comply with the subpoenas also
permits me to draw an adverse inference. ADF, Inc., 355 NLRB 351 (2010).
There are four criteria employed in determining single employer status: (1) common
ownership; (2) common management; (3) functional interrelation of operations; and (4)
centralized control of labor relations. Radio and Television Broadcast Technicians Local Union
1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965). No single factor in this inquiry is
deemed controlling and not all of these factors need to be present to establish single employer
status, which depends on all the circumstances and is characterized by the absence of an
“arm’s-length relationship found among unintegrated companies.” Dow Chemical Co., 326
NLRB 288 (1998); Flat Dog Productions, Inc., 347 NLRB 1180 (2006). Stanford is the president
of the three employers; he makes the operational and financial decisions for them and is the
only person with the authority to transact business on their behalf. In addition, with the exception
of nurses and office employees of Presto, he does all the hiring for all the employers, and the
bookkeeping, auditing and accounting for all three companies is performed by the Presto
bookkeeper. Further evidence of the single employer status is that in June, Presto “donated”
between $200,000 and $250,000 to CRRH, Appel assists in the care of the THCF Medical
Garden, and the funds used for the upkeep of the garden come from a Presto Debit Card
maintained by Stanford. Even without the need to draw an adverse inference from
Respondent’s total failure to comply with the subpoena, which clearly requested this
information, I find that CRRH, THCF and Presto constitute a single integrated enterprise and a
single employer within the meaning of the Act.
I also find that CRRH, THCF and Presto constitute a joint employer within the meaning
of the Act. The Board, in BFI Newby Island Recyclery, 362 NLRB No. 186 (2015), reaffirmed the
standard employed by the Third Circuit in NLRB v. Brown-Ferris Industries of Pennsylvania,
Inc., 691 F.2d 1117 (3d Cir. 1982), which stated: “Thus, the ‘joint employer’ concept recognizes
that the business entities involved are in fact separate but that they share or co-determine those
matters governing the essential terms and conditions of employment.” The evidence (the
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affidavits) establishes that Stanford controls the labor relations of all three employers permitting
meaningful collective bargaining, and they therefore constitute a joint employer within the
meaning of the Act. Browning-Ferris, supra.
Finally, Respondent’s Answer denies that the Respondent meets the Board’s
jurisdictional standards. The evidence establishes that CRRH received yearly donations ranging
from $150,000 to $250,000 between 2012 and 2014 and received a $100,000 wire transfer from
Texas in 2014 for its pro-marijuana campaign. In addition, Presto has offices and places of
business in nine other states and the District of Columbia and received a $400,000 wire transfer
from Canada in 2014. I find that the Respondent satisfies the Board’s jurisdictional standards for
a number of reasons. “Donations” can be used to determine jurisdiction, Hanna Boys Center,
293 NLRB 359 (1989), and both CRRH and Presto received substantial wire transfers from
outside the State of Oregon. Further, as Presto has ten other offices throughout the country and
employs a number of doctors and CRRH produces the HEMP News, Cannabis Common Sense
TV and the Hempstalk Festival in Portland, I can make an adverse inference that during the
past twelve months Respondent derived gross revenues in excess of $500,000, and purchased
and received at its facility in Portland, Oregon goods valued in excess of $50,000 directly from
points outside the State of Oregon through these endeavors. I therefore find that the
Respondent has been an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICE
Marino was the only witness who testified regarding the alleged unfair labor practice. He
has been employed in the Portland area as a canvasser and during the Summer, he heard from
other canvassers that CRRH was hiring. In mid-August, he called CRRH and spoke to Kyle
Purdy, CRRH Hiring Manager. Marino asked him if there was a position available, and Purdy
said that there was. Purdy asked him about his experience and Marino told him that he had
been employed as a canvasser by Fieldworks, a similar company in the area. Marino asked
Purdy what the nature of the campaign was, and he said that it was to assist in a ballot measure
establish a watchdog group to legalize commercial hemp. Purdy told Marino to come to the
office for an interview, and he came to the CRRH office a few days later to meet with Purdy. He
arrived at the office and was introduced to Purdy, who asked him to step out onto the street with
him, which he did. Once they were outside, Purdy told him that he could not hire him because
he was a member of the IWW and that he had a list of people that he had to hire before he
could hire him. Marino then told Purdy that while he was employed at Fieldworks, he had been
threatened with a blacklist because of his activities on behalf of the IWW and asked him if there
was a blacklist, and Purdy said, “There’s no blacklist, but I checked your Facebook wall and I
saw the videos that you posted,”4 and that he couldn’t hire him “until the union stuff blew over,”5
but that in the meantime, he should apply at other canvassing operations in the area. After the
parties entered into the Settlement Agreement, Marino returned to speak to Purdy and told him
that the union stuff had blown over and he was returning to get a job, and Purdy said that he
could not hire him. A Position Statement from the original counsel for the Respondent states
that both Stanford and Purdy are “pro-labor” and that his union membership had nothing to do

4 The videos showed Marino and other supporters of the IWW and the United Campaign
Workers, which is affiliated with the IWW, marching and supporting Grassroots Campaigns in
their demands for improved benefits for its employees.
5 Marino was aware that there was an unfair labor practice charge that was filed against the
Respondent by the United Campaign Workers Union that resulted in a Settlement Agreement,
backpay and a Notice in October.
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with Purdy’s failure to hire him.
Obviously, Purdy’s statements to Marino that he couldn’t hire him because he was a
member of the IWW and that he couldn’t hire him until “the union stuff blew over,” violates
Section 8(a)(1) of the Act. Further, under the Wright Line standard, 251 NLRB 1083 (1980),
Counsel for the General Counsel has the initial burden of establishing that the employee’s
protected activity was a motivating factor in the employer’s decision, in this case, not to hire
Marino. If that has been established, the burden shifts to the employer to demonstrate that the
same action would have been taken even in the absence of the protected conduct. The credible
uncontradicted testimony of Marino establishes that Purdy refused to hire him because of his
IWW membership and his Facebook videos showing his union support. As Marino was a
credible witness and there were no witnesses testifying otherwise, there is no need to draw an
adverse inference from the failure of the Respondent to call any witnesses, and I find that
Counsel for the General Counsel satisfied her burden while the Respondent failed to produce
any evidence establishing that it would have refused to hire Marino even absent his protected
conduct. Respondent’s failure to hire Marino violates Section 8(a)(1)(3) of the Act. In addition,
as Purdy told Marino that he could not hire him until the “union stuff” blew over (meaning the
unfair labor practice charge filed by the IWW, which was settled by the parties on October 29), I
find that the Respondent refused to employ him because of the belief, albeit mistaken, that he
was a party to that unfair labor practice, thereby violating Section 8(a)(1)(4) as well.
CONCLUSIONS OF LAW
1. CRRH, THCF and Presto constitute a single employer, as well as a joint employer
within the meaning of the Act, and has been an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
2. By telling Matthew Marino that he couldn’t hire him because he was a union member
and supported the Union’s unfair labor practice charge, and by refusing to hire Marino in August
2014 because of his membership in, and activities on behalf of, the Union, the Respondent
violated Section 8(a)(1)(3)(4) of the Act.
Remedy
The Respondent, having refused to hire Marino as a canvasser in August, shall offer him
a position of a canvasser or, if that position no longer exists or is unavailable, to a substantially
equivalent position, and shall make him whole for any loss that he suffered due to its refusal to
employ him. I shall also order the Respondent to file a special report with the Social Security
Administration allocating Marino’s backpay to the appropriate calendar quarters and to
compensate him for any adverse income tax consequences of receiving his backpay in one
lump sum.
Upon the foregoing findings of fact, conclusions of law and on the entire record, I hereby
issue the following recommended6

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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ORDER
The Respondent, CRRH, THCF and Presto, a single employer and joint employer, its
officers, agents, successors and assigns, shall:
1. Cease and desist from refusing to hire individuals because of their activities on behalf
of, or support for, the Union, and telling them that is why they could not be hired, or because of
their support for unfair labor practice charges filed with the Board, or in any like or related
manner, interfere with, restrain or coerce its employees in the exercise of their rights guaranteed
by the Board.
2. Take the following action necessary to effectuate the policies of the Act:
(a) Offer Matthew Marino a job as a canvasser or, if that job no longer exists, to a
substantially equivalent position, and make him whole for any loss of pay and any other benefits
that he suffered as a result of the discrimination against him and to file a special report with the
Social Security Administration allocating Marino’s backpay to the appropriate calendar quarters
and compensate him for any adverse income tax consequences of receiving his backpay in one
lump sum, as prescribed in Latino Express, Inc., 359 NLRB No. 44 (2012).
(b) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(c) Within 14 days after service by the Region, post at its facilities in the Portland,
Oregon area, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 19, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since August 1, 2014.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. December 17, 2015
Joel P. Biblowitz
Administrative Law Judge

7 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–45-15

APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT tell you that we will not hire you because of your support for, or membership in
the United Campaign Workers (“the Union”) or any labor organization, or because of your
involvement in any matter before the National Labor Relations Board.
WE WILL NOT refuse to hire you because of your support for, or membership in, the Union or
any labor organization or because of your involvement in any matter before the National Labor
Relations Board and WE WILL NOT in any like or related manner interfere with, restrain or
coerce you in the rights under Section 7 of the Act.
WE WILL within 14 days of the date below offer Matthew Marino employment as a canvasser
or, if that position no longer exists, to a substantially equivalent position without any loss of pay
or benefits, and WE WILL reimburse him for any loss that he suffered as a result of our failure
to employ him in August 2014.
CAMPAIGN for the RESTORATION AND REGULATION OF HEMP, THCF, and PRESTO
QUALITY CARE CORPORATION, A Single Employer and Joint Employer
Dated______________ By_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
JD(NY)–45-15
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-143377 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 206-220-6284.