“The legal cannabis cultivation industry is relatively new in the United States, and it is different from all previously analyzed agricultural industries.”
By Rebecca Rivas, Missouri Independent
A push by workers in a St. Louis marijuana facility to form a union could have national ramifications on labor law, with the company hoping to block their effort by asking the federal government to intervene.
At issue is a group of “post-harvest workers” at BeLeaf Medical’s Sinse cultivation facility in St. Louis. They have been trying to form a union since September but have thus far been blocked by their employer’s continuous legal challenges.
The company argues the employees at its Sinse facility don’t have the right to unionize because they’re considered agricultural workers.
Agricultural workers aren’t protected under the 1935 National Labor Relations Act, which ensures employees have the right to unionize without fear of retaliation.
Twice so far this year, National Labor Relations Board Regional Director Andrea Wilkes—who oversees a swath of six states in the Midwest—has ruled against BeLeaf’s argument.
Last week, BeLeaf filed a request for the national five-member board appointed by the president to review Wilkes’s decisions.
Legal experts, union officials and industry insiders interviewed by The Independent agree that whichever way the NLRB ultimately rules would have sweeping ramifications for the burgeoning industry across the nation.
“I know for a fact that people in these facilities are told ‘You’re ag workers. You don’t have any rights,’ no matter what position they are,” said Sean Shannon, lead organizer with United Food and Commercial Workers International Union Local 655. “People won’t have to be in this gray area of doubt anymore about whether or not they can organize.”
Wilkes’s decision followed a similar ruling in September by another regional NLRB director in a case regarding some New Jersey post-harvest workers.
However, this would be the first time that the national board weighs in on the issue, setting a national legal precedent.
And that’s what BeLeaf is hoping for, the company said in its request to the NLRB.
“The legal cannabis cultivation industry is relatively new in the United States, and it is different from all previously analyzed agricultural industries,” the company argues.
“Accordingly, there is no officially reported board precedent and no reported judicial decisions to help establish where the line between agricultural and non-agricultural activities may be drawn in a particular situation.”
BeLeaf did not return The Independent’s repeated requests for comment.
Shannon said BeLeaf employees were not surprised to see the company’s appeal.
“We were expecting it,” he said. “The company made it very clear that they were going to fight us with every avenue they could. And they’re doing just that.”
‘An industrialized process’
The company’s appeal comes after Wilkes ordered a unionization election be held on February 6, where 16 employees at BeLeaf’s cultivation facility on Cherokee Street in St. Louis cast votes.
Employees are hoping to learn the results of the contested election any day now.
Wilkes found that none of these post-harvest employees are “engaged in primary agricultural activities.” They work separately from the cultivation and harvest departments, she wrote, and don’t overlap in duties.
However, BeLeaf says the employees work with their hands and they are still working with “raw flower.”
BeLeaf operates three cannabis cultivation facilities and five Swade dispensaries, according to case documents. The Cherokee Street location is the largest of their cultivation facilities in Missouri, where 29 cultivation employees care for the plants and five people harvest the marijuana plants and hang them to dry.
In a completely separate department, Wilkes said there are 13 post-harvest employees who take down the dried plants and begin the de-stemming process. Some weigh the product and input that information into state’s tracking system Metrc.
After de-stemming and separating, the marijuana is packaged or processed into pre-rolled joints. The facility produces anywhere from 900 to 1,200 pre-rolls a day.
She compared the Sinse post-harvest employees’ work to that of employees in a tobacco processing plant.
“Removing the veins from tobacco leaves and fermenting the leaves has been held to be outside the definition of agriculture,” under federal labor law, she wrote.
To determine whether or not an employee is performing agricultural work, Wilkes wrote the federal courts looked at whether the product has undergone a change from its ‘raw and natural state,’ and is more like manufacturing than to agriculture.
“In sum, the employer’s post-harvest production process is not a mere preparation for market but a process that utilizes industrialized processes to transform the marijuana from its natural state into finished products prepared for sale,” Wilkes wrote. “I therefore find that the post-harvest employees are statutory employees under the Act and are not exempted as agricultural laborers.”
BeLeaf’s challenge
BeLeaf argues that the regional director’s comparison to the tobacco industry is “misplaced.”
“The regional director’s analysis is flawed,” the company’s appeal states. “The post-harvest de-stemming and other processes bear no resemblance to de-stemming tobacco leaves.”
BeLeaf argues that tobacco leaves are first dried and then fermented over a period of four to eight months. However, BeLeaf workers de-stem, buck, and trim the cannabis plant, and then the buds are “cured to preserve the product in its raw state by preventing the terpenes and terpenoids from breaking down.”
The regional director found the task of creating pre-rolls is a mechanized process that adds value and could be an independent business.
But the company argues the marijuana in pre-rolls is still in a raw state.
“The raw cannabis plant remains in the same, natural state throughout the entire post-harvest process,” it states. “Accordingly, the post-harvest employees are agricultural workers exempt from coverage of the Act and must be excluded from the proposed bargaining unit.”
In the New Jersey NLRB case, a company called Columbia Care New Jersey made this exact same argument.
NLRB Regional Director Kimberly Andrews dismissed it, concluding: “The transformation of the harvested cannabis plants to the ultimate packaged products ready for market in this case is far more substantial than processes that the courts have found not to be secondary agriculture.”
Jeff Toppel, a labor law attorney with the Bianchi Brandt firm in Arizona, said the regional directors’ decisions give a strong indication on how the national board will rule.
“It is a significant decision,” Toppel said, “and could have a wide-ranging impact.”
This story was first published by Missouri Independent.
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