The Boston Globe has a well-reported story out this morning on the United Food and Commercial Workers’ unionization campaign at iAnthus-owned Mayflower Medicinals’ grow facility in Massachusetts. It’s no secret to operators in Massachusetts, New Jersey, Illinois, California and other “labor friendly” states that trade unions – UFCW in particular – are running aggressive campaigns throughout the cannabis industry.
It’s a delicate dance: cannabis employers, who are reliant on remaining in good standing politically and in the court of public opinion to win highly competitive state and local licenses, must be careful with their messaging (independent of the additional state and federal labor law obligations). The additional factor is that many states, such as California, mandate that licensees execute Labor Peace Agreements, while others such as New Jersey and Illinois provide make-or-break bonus points in the scoring of deeply competitive applications for a small number of lucrative state licenses. In effect, LPAs in these states are not optional. This gives unions leverage over potential employers they might never have in other industries.
A trap for the wary is that legal counsel should carefully review the “form” LPAs produced by UFCW or other unions during these application processes, no matter how much the applicant is under time pressure to get an application filed.
The deck is not stacked against the industry, however. Continuing the stale cliche, cannabis employers may have the ultimate “ace up their sleeve.” As the Globe points out this morning, UFCW is hesitant to ask the federal National Labor Relations Board for an election due to concerns that the NLRB could find it doesn’t have jurisdiction because cannabis is illegal at the federal level. While a 2013 NLRB Advice Memo found that the cannabis industry is subject to the National Labor Relations Act, UFCW may fear the Trump Administration’s NLRB will reach a different opinion this time around. An NRLB ruling that federal rules don’t apply to cannabis workers would take away key leverage. As the Globe reports, UFCW is instead relying on Massachusetts state rules.
Foley Hoag’s labor attorneys have worked with cannabis companies for years and on innumerable union campaigns inside and outside the industry. We are closely following this ever-evolving area.