NLRB Division of Advice Weighs in on Cannabis Workers

Foley Hoag LLP - Cannabis and the Law
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Foley Hoag LLP - Cannabis and the Law

As we previously blogged, “agricultural employees” are excluded from coverage under the federal National Labor Relations Act, which governs unionization.  The National Labor Relations Board’s Division of Advice (which determines which cases to prosecute) has now weighed in for the first time as to what this means for cannabis grow workers.  In an opinion just released, the Division of Advice found that workers in an indoor greenhouse are excluded from the NLRA’s coverage because they “substantially engage in the primary agricultural functions of harvesting, sorting and pruning of plants.”  The opinion noted that these workers spent about 70% of their time on these types of functions.  The opinion also distinguished cases where NLRA coverage was found.  In those cases, the workers were not primarily engaged in “agricultural” activities because, rather than growing the plant, they transformed the plant from its natural state into a salable product.

The Division of Advice opinion is consistent with a decision issued from the NLRB’s Boston Region last fall.  However, the full NLRB has yet to weigh in.

Importantly, the opinion also reaffirms NLRA coverage for the industry generally.  Some had argued that the entire industry was not covered by the federal labor law and/or that the Board should decline to exercise jurisdiction over the industry due to its status under federal law.  While not tackling the issue head on, the opinion cites favorably Obama-era NLRB Advice memos that applied the NLRA to the cannabis industry.  The decision is a signal the Division of Advice run by President Biden’s appointees will also recognize the industry.

This opinion is mixed blessing for organized labor.  In states such as Massachusetts, the agricultural exception makes organizing grow workers significantly easier because those workers are covered by labor-friendly state law which, among other things, allows for a card check rather than a secret ballot election.  In other states, however, the decision may mean that grow workers cannot be unionized at all.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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