Everyone’s Doing It: NLRB Asserts Jurisdiction Over Pot Processors

Several states and now the NLRB are trying to reap the rewards of the growing legalized marijuana trend across the United States – an industry that is currently worth about $1.5 billion and expected to grow to $6 billion by 2018.

Marijuana remains illegal under federal law despite some states legalizing the growth, cultivation, possession, and/or consumption of the drug. Yet, even after admitting that pot dispensaries are operating in violation of the federal Controlled Substances Act, the NLRB concluded that marijuana processors working for companies that grow and cultivate the herb are employees under the National Labor Relations Act instead of agricultural laborers who fall outside the Act’s protection.

The NLRB’s Division of Advice, which provides guidance to the Board’s Regional Offices, provided input regarding the Wellness Connection of Maine, which processes medical marijuana products at an indoor facility where it employs three production assistants and eight processing assistants. The company also operates four retail dispensaries in the state. Important to whether the workers are able to unionize (a goal of the UFCW union that has created a “Medical Cannabis and Hemp” Division) is whether they are statutory employees or agricultural laborers.

The Act excludes “agricultural laborer” from its definition of a statutory employee. The Board distinguishes between primary agricultural tasks such as cultivation and tilling, which are performed by agricultural laborers who are not covered by the NLRA, and secondary functions that are covered by the Act because they are not established parts of agriculture. Wellness Connection’s processing assistants work by hand to use machines to trim, vacuum, weigh, package, and label marijuana in preparation for sale. They also mix and sift plant matter to create tinctures and marijuana-based foods and beverages. According to the NLRB’s Division of Advice, “the processing operation that transforms the cannabis plants from their raw and natural state is more akin to manufacturing than agriculture.”

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