National Labor Relations Act

On April 26, 2024, Ctrl Alt Destroy, Inc. (“CAD”), a California Corporation and cannabis licensee filed a lawsuit against Nicole Elliott in her official capacity as Director of the State of California’s Department of Cannabis Control (“DCC”) and Rob Bonta in his official capacity as Attorney General of the State of California, seeking declaratory and injunctive relief alleging that California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) is unconstitutional under the Fifth and Fourteenth Amendments to the US Constitution and is preempted by the National Labor Relations Act (“NLRA”).Continue Reading Cannabis Operator Challenges California State Statute and Regulations Requiring Labor Peace Agreements

This article originally appeared on Law360 on June 25, 2021.

On Wednesday, June 23, 2021, the U.S. Supreme Court issued its decision in Cedar Point Nursery v. Hassid.  The ruling invalidated a California labor regulation that requires growers to grant union organizers seeking to represent their workers property access, and declared it an unconstitutional taking of the grower’s property in violation of the 5th and 14th Amendments.  Several other California laws and decisions sanction similar union trespass onto private property.  For example, numerous state court decisions have granted unions access to private property of employers with whom they have a dispute on the theory that such access is required in order to enable labor to communicate its message to the public and to put economic pressure on the employer.  Likewise, California’s statutes have been applied to grant special protections to labor speech and to bar courts from enjoining union trespass on private property.  See e.g., Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, 55 Cal.4th 1083 (2012); UFCW, Local 324 v. Superior Court of Los Angeles, 83 Cal.App.4th 566 (2000); cf. Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).[i]  Cedar Point offers a new avenue of attack against such union invasions of an employer’s property and a possible leg up on getting such trespasses enjoined in the future.
Continue Reading SCOTUS Decision May Force Reversal of California Laws Sanctioning Union Trespass

On January 25, 2021, the NLRB Division of Advice (“the Division”) released a memo that may indicate a change in the way workers engaged in cannabis activities are covered under federal labor law. Under the NLRA, the right to form and join a union is limited to employees. Agricultural laborers do not have that right under federal law. Despite the fact that many workers in the cannabis industry are often involved in the cultivation and harvesting of a crop, they have typically been considered employees rather than agricultural laborers under the National Labor Relations Act (“NLRA” or “the Act”). This recently released advice memo (available here) reverses that interpretation.
Continue Reading NLRB’s Division of Advice Determines Certain Workers in the Cannabis Industry Are Exempt From Federal Labor Law

When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act (NLRA) and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  For example, under Assembly Bill 1291 (AB 1291) (AB 1291) and California Business and Professions Code Section 26001(x), any company engaged in the cultivation, packaging, distribution or sale of cannabis products cannot be licensed unless it agrees to enter into a labor peace agreement (LPA) with a union.  By statute, an LPA must, at minimum, (a) require the company not to “disrupt” the ability of unions to communicate with and to organize employees, and (b) grant workplace access to union organizers.  Likewise, under the California Agricultural Labor Relations Board (ALRB)’s access regulations – which covers agricultural workers engaged in the cultivation of cannabis – agricultural employers are required to provide union organizers with access to their property to communicate with employees and engage in union organizing efforts for up to 120 days in a calendar year.[1]
Continue Reading SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Agricultural Employers to Grant Union Access to Private Property