The NLRB Goes to “Pot” – “The Board, Like Congress, Has the Authority to Regulate the Marijuana Industry"

The NLRB’s General Counsel’s Office, in an Advice Memo dated October 25, 2013  (pdf) and released to the public on August 7, 2014, has taken the position that “an enterprise that grows, processes, and retails medical marijuana” is an employer subject to the National Labor Relations Act provided it meets the Board’s monetary jurisdictional standards and is an employer engaged in commerce and that “the Board should assert jurisdiction over this type of business enterprise.”   

Notably, the General Counsel’s office advocates the position that even though all of Maine Wellness’s growth and production takes place within the State of Maine and all of its products are shipped to dispensaries within the State, Maine Wellness is engaged in interstate commerce because of the company’s purchases of equipment and supplies from enterprises in other states. At page 8 of the Advice Memorandum the Division of Advice makes the remarkable statement that “the Board, like Congress, has the authority to regulate the marijuana industry, even where production and consumption is intended to be wholly intrastate.”

Having reached that conclusion, the Division of Advice next examined the question of whether the Maine Wellness Connection’s  “productions assistants,” who are primarily responsible for performing the tasks associated with growing marijuana during growing cycle and  its “processing assistants who  are primarily responsible for tasks performed during the processing stage,” Associate General Counsel Barry J. Kearney of the Division of Advice concludes that Maine Wellness’s workers “who are primarily involved in what are referred to as marijuana processing activities that are not agricultural are employees under the Act.”  The Board notes what it considers to be the similarity of their work to those who work in sugar refineries and tobacco processing who have been held not to be engaged in agricultural employment.

The Advice Memorandum’s in depth description of the processes and procedures employed to process and ready the plants’ buds for placement in inventory and shipment to dispensaries across the State of Maine, and the processing of what are referred to as the “byproducts” of that process into a baker’s mix of finely ground leaves and flowers used to create “edibles, which are sweet or savory foods and beverage products” that include the baker’s mix as their active ingredient, reads like a 2014 update of the 1974 classic A Child’s Garden of Grass (The Official Handbook for Marijuana Users)

The Board’s intention to assert its jurisdiction over this industry comes at a time when the legalization and decriminalization of marijuana is rapidly expanding across the country and the growth, processing and distribution of cannabis products is becoming a big business (“some estimate that marijuana is now the highest value cash crop industry in Maine, surpassing the size of Maine’s wild blueberry industry at a value of approximately $78 million.”)

The Advice Memorandum reveals the fact that this fast growing industry is one in which organized labor is active and will likely continue to be given the General Counsel’s analysis and conclusions.  First although it is not mentioned in the Advice Memorandum, the unfair labor practice charges that are at the base of these issues were filed by United Food & Commercial Workers International Union, AFL-CIO, CLC. As the General Counsel notes, the UFCW and other unions, including the Teamsters are already engaged in organizing and representing workers in the marijuana industry.  In fact the UFCW has gone so far as to establish a distinct Medical Cannabis and Hemp Division within the union.  In what is no doubt a case of background being destiny, the Director of the Division is named Dan Rush.   You cannot make this stuff up.