The Cannabis Industry’s Labor Tightrope: An Industry Still In Flux

by | Apr 10, 2024 | Cannabis, Federal, Industry, Labor Relations Ink, Labor Relations Insight, Legal, NLRB, Politics, Union Leaders, Union Organizing, Unionized Company

Cannabis employers sit in an unenviable spot in 2024. It’s not easy to run a business that is not federally legal yet still required to adhere to federal law, including the National Labor Relations Act (NLRA). As a result, growers, producers, delivery drivers, and retail workers at dispensaries are regularly circled by an assortment of unions. This activity has, of course, only grown more heightened by the new Cemex framework that makes it easier for workers to unionize.

Additionally, the deck is further stacked against cannabis employers in the eight states that require or incentivize businesses to take a neutral stance (through Labor Peace Agreements, or LPAs) during labor campaigns. More states are currently mulling over this practice, and only one thing is sure at present: the cannabis industry doesn’t seem nearly as laid-back and enjoyable to maneuver through as those who partake might imagine.

Don’t get your hopes up too high for Biden’s board to side with cannabis employers. Yet a St. Louis cannabis company is hoping to catch a break within an organizing campaign targeted at BeLeaf Medical’s Sinse Cultivation post-harvest workers. Depending on how the case goes, the results could impact the entire cannabis industry.

The issue here involves potentially classifying these employees as agricultural workers who are generally excluded from union representation under the NLRA. And as we have previously discussed, some states have opted to tweak the treatment of farm work in labor law. In particular, New York passed a 2021 law that allows farm workers to unionize via card-check. California has taken a similar route, but no such law exists in Missouri, and the company is requesting federal intervention. The result will determine whether post-harvest cannabis workers can or cannot organize under the NLRA.

Thus far, an NLRB regional director has ruled twice against BeLeaf’s rationale — that these workers are handling “raw flower” with their hands—and the company has requested a review. This leaves the decision regarding the group of workers who want to unionize to the NLRB.

It’s a surprisingly complicated distinction, too. Specifically, the duties of these 16 cultivation facility workers include handling dried plants and the de-stemming process. These tasks are distinct from a group that harvests and hangs the plants for drying. And yet another group picks up the ball for processing and packaging of pre-rolled joints. If the NLRB regional director has their way, then the group of workers who are attempting to unionize will be treated similarly to those who ferment leaves in the tobacco industry.

These distinctions might not mean much to those unfamiliar with this industry. Still, however, a board decision to classify these workers as covered by the NLRA will substantially affect cannabis employers, who already walk a precarious tightrope, not only with laws but an almost prohibitive level of taxation. The industry could stand to catch a break and maybe not chill out, but at least rest slightly easier while running their business.

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