“We all love our jobs, which is why we want the security behind having something like this in place.”
By Rebecca Rivas, Missouri Independent
Ahmad Haynes and a handful of employees at BeLeaf Medical’s Sinse Cannabis site in St. Louis anxiously waited for the clock to hit 5 p.m.
He and his co-workers had gathered outside the St. Louis Public Library’s Barr branch, where they had cast their votes to unionize earlier that afternoon on February 6. The election came after a hard-fought legal battle that began in September with their employer contesting their eligibility to unionize.
Minutes before 5 p.m., they all shuffled into a library conference room to hear the results.
“We all love our jobs, which is why we want the security behind having something like this in place,” Haynes, a post-harvest technician at Sinse, told The Independent.
However, just as the representative from the National Labor Relations Board was gathering up the votes to tally them, BeLeaf’s director of human resources, Marilyn Gleason, told him to wait.
She had spoken with the company’s attorney, she said, and BeLeaf wanted to continue to challenge 11 of employees’ eligibility to vote—out of the total 16 who voted.
Haynes’ jaw dropped, and the employees looked around in disbelief.
“I just could not believe they were doing it,” said Todd Rick, a former post-harvest specialist for Sinse Cannabis who says he was fired earlier this month. “But at the same time, I wasn’t surprised at all.”
Not long after he and other employees filed their petition to unionize in September, the company argued before the board that the employees aren’t manufacturer workers—they’re agricultural workers.
Agricultural laborers aren’t protected under the 1935 National Labor Relations Act, which ensures employees have the “fundamental right to seek better working conditions and designation of representation without fear of retaliation.”
On January 25, Board Regional Director Andrea Wilkes issued a 13-page decision detailing why the employees are not agricultural workers and could cast votes in the unionization election.
The company’s challenge on Tuesday essentially asked Wilkes to rethink her decision.
The board representative asked Gleason why she wanted to challenge the votes after Wilkes had already deemed them eligible, and she said that’s what her attorney was advising her to do.
Beleaf Medical did not respond to The Independent’s multiple requests for comment.
The 11 challenged ballots were sealed in an envelope, and the regional director will decide whether or not to open them after further investigation, according to a letter Wilkes sent the attorneys representing the union and company on Wednesday.
Wilkes’ decision in the case will likely impact many cannabis employees across the state who’ve been told they weren’t eligible to unionize because they were agricultural workers, said Sean Shannon lead organizer with United Food and Commercial Workers International Union Local 655.
“This is going to show that not only could they try but they’re going to be able to succeed,” Shannon said, “because the BeLeaf union is going to succeed.”
The company could still file an appeal, asking the national five-member board appointed by the president to review the election results and the regional director’s January 25 decision. That ruling would set a precedent for labor law nationwide.
Not agricultural workers
Earlier this month, near the end of Rick’s shift, he said Gleason called him into an office and alleged that he had turned off a dehumidifier on several occasions. He was suspended with pay, he said.
Yet, by the time he got to his car, Gleason had called him and told him he was fired. Because he had never received a warning about the action or potential discipline, Rick said it felt like he was being targeted for his leadership in organizing the union. He filed a complaint with the NLRB soon after.
“They knew that I had a pretty heavy hand in getting the union kind of off the ground,” he said.
Rick had testified before the board this fall, regarding what type of work he performed.
During the October 27 hearing, company representatives described the employees’ job descriptions to the board, which included “a whole bunch of the cultivation side’s job description,” Will Braddum, a post-harvest technician for Sinse Cannabis, told The Independent in November. It was surprising for the employees who testified and had to refute that description, he said.
“I’ve never watered anything and never touched any soil,” he said. “I’ve never touched a living plant at work.”
Wilkes found that none of the 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.
According to Wilkes’ decision, BeLeaf operates three cannabis cultivation facilities and five Swade dispensaries. The largest of their cultivation facilities is on Cherokee Street in St. Louis, where 29 cultivation employees care for the plants and five people harvest the marijuana plants and hang them to dry.
In a completely separate department, 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.
To determine whether or not an employee is performing agricultural work, Wilkes wrote the federal courts looked at whether the product has undergone a change from its ‘raw and natural state,’ and is more like manufacturing than to agriculture.
“In sum, the employer’s post-harvest production process is not a mere preparation for market but a process that utilizes industrialized processes to transform the marijuana from its natural state into finished products prepared for sale,” Wilkes wrote. “I therefore find that the post-harvest employees are statutory employees under the Act and are not exempted as agricultural laborers.”
What does the decision mean?
Jeff Toppel, a labor law attorney with the Bianchi Brandt firm in Arizona, has been keeping his eye on the BeLeaf case, just as other labor attorneys and unions have throughout the country, he said.
Up until now, it wasn’t clear if the post-harvest workers would be excluded as agricultural workers, he said, which has pushed unions to focus more on dispensary workers.
“In large part, that was because of that uncertainty,” Toppel said. “This decision will definitely open the doors to unions to reshift that focus towards [post-harvest] workers.”
The regional director’s decision on January 25 didn’t set a national precedent.
“But I think it’s certainly an indication of how the board will rule,” he said. “It is a significant decision and could have a wide-ranging impact.”
The company is asking the director to review the evidence again that led to her decision—and Wilkes is complying.
On Wednesday evening, Wilkes sent a letter to the attorneys representing the company and union stating they have until Feb. 13 to provide a statement explaining why each of the challenged individuals is or is not eligible to vote in the election, and provide evidence to support that position.
“If I determine that the challenged ballots raise substantial and material factual issues, I will schedule a hearing for as soon as practicable,” Wilkes wrote.
Toppel said the fact that Wilkes is allowing this evidence to be reviewed twice is “unusual.”
No matter what Wilkes decides, he said the company will likely file an appeal with the national board.
“A decision from the board…” Toppel said, “will provide much needed clarity on an issue that will have a significant impact on the future of organizing in the cannabis industry.”