A St. Louis-based marijuana company’s failed attempt to block its workers from unionizing has set a national precedent in favor of workers who process cannabis.
Owners of BeLeaf Medical’s Sinse cultivation facility in St. Louis have been arguing since 2023 that their “post-harvest workers” don’t have the right to unionize because they’re agricultural workers.
Agricultural workers who grow food — or weed – aren’t protected by federal law that ensures employees have the right to unionize without fear of retaliation.
The National Labor Relations Board, which is the highest administrative body on labor conflicts and sets national policy on unionizing, shot down the company’s argument on April 23.
The board’s decision came the same day Missouri Gov. Mike Kehoe signed a bill that, in part, ensures all cannabis workers – including those who grow marijuana – have the right to unionize.
“We agree with the Regional [NLRB] Director, for the reasons provided in her decision, that none of the workers employed in the classifications at issue here are agricultural laborers under the secondary definition of agriculture,” the national board members stated.
It’s been more than two years since the employees at the Sinse cultivation facility in South St. Louis held an election to unionize.
The majority of the ballots — 11 of the 16 — have remained closed because BeLeaf challenged them.
The Sinse employees whose union votes BeLeaf questioned largely made pre-rolls, input data on computers and transformed dried marijuana into finished products, jobs which “generally are not performed by ordinary farm employees,” the national board stated.
The decision comes two years after a regional NLRB director arrived at the same conclusion. The ballots will now be opened, but it’s unclear when, said Sean Shannon, lead organizer with United Food and Commercial Workers International Union Local 655.
“BeLeaf has chosen to spend thousands and thousands of dollars to delay this process, while claiming to be a good part of our community,” Shannon said. “At this point, let’s hurry up and bargain a first contract because I think people in that facility have more than earned it, whether they’ve been around since the vote or not.”
Kevin Riggs, co-founder, partner and CEO of BeLeaf Medical, declined to comment on the board’s decision.
Last week, the Division of Cannabis Regulation handed BeLeaf another blow by issuing a recall of its pre-packed weed from the same Sinse facility, after finding a mold during a routine lab test.
The recalled product is Sinse Prepackaged Flower, 14 grams, Permanent Marker, product number M00001463153, with source tag 1A40C0300000A29000061341.
Regarding the recall, Riggs said, “Consumer safety is our priority. We’re working with DCR on this recall and will have no further comment at this time.”
‘Covered by the Act’
This is the first time the national board has weighed in on the issue of post-harvest cannabis workers, though similar decisions have been issued by regional board directors in other states.
St. Louis labor attorney George Suggs said the national board’s decision is limited to a case-by-case basis.
“Employers are going to read this case and say, ‘How can I change the job duties around so that I can make them more agricultural?” Suggs said.
BeLeaf can still refuse to abide by the ruling, Suggs said, which would eventually land the case in front of an appellate court.
Given that the company has paid four Armstrong Teasdale attorneys to work on the case, Suggs said the owners have shown a monetary commitment to resisting the process of bargaining.
“All that happens is you’re required to sit down and bargain in good faith – that doesn’t mean you have to pay another nickel,” Suggs said. “If you pay one of those lawyers to sit in on negotiations for you, let’s say, for 20 sessions, you couldn’t possibly have spent as much money as you did on this case – and will spend.”
Regardless of the board outcome, Sinse workers will be covered on Nov. 12 when a new Missouri law goes into effect.
During a late-night debate on a bill to ban intoxicating hemp products, Democratic state Sen. Stephen Webber of Columbia proposed an amendment to ensure marijuana cultivation workers are protected under the National Labor Relations Act of 1935.
“Under the National Labor Relations Act as long as it’s existed, it has not applied to agricultural workers,” Webber said during a Senate floor debate last month, “but states are free to expand that coverage if they so choose.”
Webber’s amendment makes workers in cannabis-related businesses in a climate-controlled indoor cultivation and processing facility covered under the federal act.
“We’re talking about an industry that employs people,” he said, “and I think this is a good amendment for people.”
Regional decision
The national board agreed with the decision the regional director Andrea Wilkes – who oversees a swath of six states in the Midwest — issued two years ago.
Wilkes found that none of these post-harvest employees are “engaged in primary agricultural activities.” They work separately from the cultivation and harvest departments, she wrote, and don’t overlap in duties.
However, BeLeaf says the employees work with their hands, and they are still working with “raw flower.”
BeLeaf operates three cannabis cultivation sites, two manufacturing facilities and twelve Swade dispensaries, according to the division’s website. The Sinse facility Cherokee Street location is the largest of their cultivation facilities in Missouri, where 29 cultivation employees care for the plants and five people harvest the marijuana plants and hang them to dry, according to NLRB case documents.
In her decision, Wilkes said there are 13 post-harvest employees who take down the dried plants and begin the de-stemming process. Some weigh the product and input that information into state’s tracking system Metrc.
After de-stemming and separating, the marijuana is packaged or processed into pre-rolled joints. The facility produces anywhere from 900 to 1,200 pre-rolls a day.
She compared the Sinse post-harvest employees’ work to that of employees in a tobacco processing plant.
“Removing the veins from tobacco leaves and fermenting the leaves has been held to be outside the definition of agriculture,” under federal labor law, she wrote.
Wilkes’ decision followed a similar ruling by another regional NLRB director in a case regarding some New Jersey post-harvest workers.
A decision from the national board sets a legal precedent, which is what BeLeaf was hoping for, the company said in its request to the NLRB.
“The legal cannabis cultivation industry is relatively new in the United States, and it is different from all previously analyzed agricultural industries,” the company argues.
“Accordingly, there is no officially reported board precedent,” the filing continued, “and no reported judicial decisions to help establish where the line between agricultural and non-agricultural activities may be drawn in a particular situation.”