The cannabis workforce is increasingly unionized. This month, for instance, United Food and Commercial Workers (UFCW) Local 328 began representing workers at Curaleaf in Massachusetts and Greenleaf Compassionate Care Center in Rhode Island. UFCW says it represents more than 10,000 cannabis sector workers across the country, making it the biggest player by far in unionizing the industry.
But unions face a barrier to organizing a crucial segment of the industry: growers, trimmers, and cultivators. In the eyes of the federal government, the people handling plants bear a resemblance to agricultural laborers – a workforce exempt from federal organizing protections.
However, that hasn’t stopped unions and workers from trying to organize that part of the industry, and efforts to change the interpretation of the law. And the more union-friendly Biden administration could eventually tilt the matter in labor’s favor.
The National Labor Relations Board, the independent federal agency that decides on labor disputes, offered guidance under the Trump administration to a regional office to dismiss a case brought by a union on behalf of growers, trimmers, and cultivators, interpreting their work as agricultural in nature. However, the agency has not yet made a binding decision on how these workers should be classified moving forward.
The dismissal came in December and involved a dispute between UFCW Local 1776 and Agri-Kind, a Chester, Pennsylvania-based medical cannabis producer. Two employees, a trimmer, and cultivation associate alleged that comments from their supervisor interfered in their attempt to organize. However, the NLRB Division of Advice deemed the workers agriculture laborers. As a result, the regional office declined to issue a complaint to Agri-Kind for unfair labor practices.
“The NLRB did not rule in our case and I’m not aware that they’ve ruled on this issue about employees at medical marijuana facilities – particularly growers and trimmers and whether or not they would be exempt under the agricultural worker exemption,” Jessica Caggiano, UFCW Local 1776’s legal representative in the case, told Cannabis Wire. “What happened here was we never got to the NLRB.”
In its guidance memo to the Philadelphia regional office dated October 21, the NLRB Division of Advice explained why it concluded that the case should be dismissed. “We conclude that although the two employees work in indoor grow rooms akin to greenhouses, which the Board has previously distinguished from traditional exempt agriculture work, they are exempt because they each substantially engage in the primary agricultural functions of harvesting, pruning, and sorting plants.”
The US Supreme Court has adopted a test for determining what kind of labor is exempt, which includes analyzing time spent working by hand. The advice memo notes the Agri-Kind employees “both worked by hand; neither employee used a machine,” and the cultivation associate in this case “spent approximately 70 percent of the work time harvesting, de-fanning, and skirting plants.” Work using a machine is typically related to manufacturing, which is open to federally recognized unionization.
Another pivotal measure in labor law is the workers’ role in the supply chain. Under the legal definition, agriculture work, which deals with a raw product, is separate from the processing stage. “Although some of the plants went on to be further manipulated through an ‘extraction and infusion process’ to form retail products such as concentrates, ointments, and tablets, there is no evidence either employee engaged in such processing,” the memo reads. “Thus the employees did not significantly transform the natural product from its raw state.”
Agri-Kind declined a request for comment on this story because this case is in front of the Pennsylvania Labor Relations Board. UFCW Local 1776 filed an unfair labor complaint under state law around the same time as it filed a complaint under federal law.
Employers have cited the agriculture exemption when workers attempt to organize. For example, although a unionization effort was successful for about 100 employees of a Cresco Labs cultivation center in Joliet, Illinois, UFCW Local 881 had to leave 18 workers out.
“It’s just one of those things where companies were able to find a loophole,” Moises Zavala, the organizing director for UFCW Local 881 told Cannabis Wire. “Hopefully we can close that loophole very soon because it’s unfair for these employees in this growing and booming industry not to get what they deserve.” He said state lawmakers could clear this up. Some state laws provide an avenue for extending the right to organize to include agriculture workers. However, that hasn’t happened in Illinois.
Cresco Labs did not respond to a request for comment.
The exclusion of agriculture workers from federal protections dates back nearly a century. The authors of the National Labor Relations Act of 1935 carved out the largely Black workforce on farms in the South as a compromise to win over the region’s members of Congress.
The law still stands – but the exemption itself has exemptions. Not long after the National Labor Relations Act’s passage, a 1940 NLRB case expanded protections to greenhouse employees working with flowers and other plants. The Parks Floral case is still cited in conflicts over who are considered agriculture laborers.
Unions looking to represent cannabis cultivators see the precedent as important, since their workforce largely works in greenhouses. Whether the NLRB ultimately agrees, and to what extent, could depend on who is in charge.
On Biden’s first day in office, he fired Peter Robb, the Trump-appointed NLRB general counsel, ten months before his term ended. In his place, Biden has nominated Jennifer Abruzzo, the special counsel for the Communications Workers of America and one-time acting general counsel for the NLRB.
“We’re likely to see a shift in the direction that the NLRB’s Division of Advice takes on these types of cases,” Keahn Morris, an attorney in San Francisco focused on labor and employment issues, told Cannabis Wire. He believes Abruzzo will be more favorable to unions, given her history at the CWA and NLRB. The Division of Advice is within the general counsel’s office.
A bigger shift is expected in August when Biden can appoint board members to the agency, giving him a chance to tilt its majority toward Democrats. Morris believes it’s likely the NLRB will make a binding decision on cannabis growers in the coming years. “As we see more organizing across the country,” Morris said, “it just increases the likelihood that this is going to boil up to an NLRB decision addressing it.”
Until that happens, states, which have their own labor boards, will continue to play a big role in deciding who can organize. Most states don’t have provisions that specifically grant agriculture workers the right to organize. A handful do, although the conditions vary from state to state. In California, which has a strong farmworker organizing history, the Teamsters union organized medical cannabis growers back in 2010.
Morris said union representation could continue to increase because of labor peace agreement requirements for the cannabis industry, under which businesses agree to allow unions to organize their shops without interference. Some states, including California, Illinois, and New York, require these agreements for cannabis business licensees, although it still doesn’t protect agriculture workers if they aren’t protected under state law. They’re also being debated in the context of adult use legalization bills in states like Connecticut, as Cannabis Wire has previously reported.
A similar drive to require labor peace agreements is happening in Rhode Island as state lawmakers consider adult use. But the progressive group Reclaim RI wants the state to go even further: It’s pushing for worker cooperatives to be prioritized for licenses, primarily as a social equity effort. In these cooperatives, each worker would own a part of the company and share equally in the profits generated.
“Worker cooperatives would give people directly impacted by the War on Drugs access to not only jobs but also assets and ability to build wealth,” Tyler Brown, Reclaim RI’s policy director, told Cannabis Wire. “And a democratic say in how their jobs are run but also a stake in the business itself.”
Whether worker cooperatives are included in the state’s adult use legislation or not, Brown said requiring labor peace agreements is a priority for his organization.
In nearby New York, the recently passed adult use cannabis law allows for cooperative licenses, including in cultivation. As Cannabis Wire has reported, the NYC Network of Worker Cooperatives was among the groups that lobbied on the bill this year.
Still, it’s unions that are poised to play a big role in the future of the industry as adult use efforts succeed in more states. Whether they’ll be able to represent the people tending to the plants, though, remains to be seen.
