Employees at BeLeaf Medical’s Sinse Cannabis site in St. Louis moved a step closer to unionizing last week, when their employer’s efforts to block union election votes from being counted were rebuffed by a federal labor official.

Since September, BeLeaf leaders have argued before the National Labor Relations Board that the employees weren’t eligible to unionize because they were agricultural workers – who are not protected under federal labor law.

On Jan. 25, National Labor Relations Board Regional Director Andrea Wilkes issued a 13-page decision detailing why the employees are not agricultural workers and allowing them to cast votes in the unionization election. 

She ordered an election be held on Feb. 6, where 16 employees cast votes. Just before the votes were counted, BeLeaf leaders issued another challenge to 11 of the employees’ votes, delaying the official count from taking place. 

Wilkes issued a second decision last week, stating the evidence BeLeaf provided still “does not raise substantial and material factual issues” in proving they are agricultural employees.

Wilkes ordered for 10 of the uncounted ballots to be opened, though the date has not yet been set. 

Company continues to argue Missouri cannabis workers can’t unionize

One ballot may be opened at a later date, pending the outcome of a separate NLRB complaint, Wilkes said. Todd Rick, a former post-harvest specialist who was fired just before the election, said he believes he was targeted for his leadership in organizing the union, and he filed a complaint soon after. 

“I’m very happy to see the board uphold its original decision,” said Sean Shannon, lead organizer with United Food and Commercial Workers International Union Local 655. “Hopefully this continues to show cannabis workers in Missouri and the rest of the nation that no matter how hard their bosses want to fight them, they’ll still win when they have a union behind them.”

Beleaf Medical did not respond to The Independent’s request for comment.

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.”

Labor attorneys, companies and union representatives across the country have grappled with the lack of clarity around whether post-harvest workers should be considered agricultural laborers.

In her Jan. 25 decision, Wilkes described these employees’ duties as the people who take down the dried marijuana plants and begin the de-stemming process. 

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 BeLeaf’s 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 in her Jan. 25 decision.

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 told The Independent in February. 

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.

While the regional director’s decisions in this case haven’t set a national precedent, it could lead to one.

The company has 10 business days after the votes are counted and the election result is certified to file an appeal, asking the national five-member board appointed by the president to review the election results and the regional director’s decisions. 

A decision from the board in the BeLeaf case would set a national precedent and have a wide-ranging impact, Toppel said.

Wilkes’ stance in the case, he said, gives a strong indication of how the board will rule.

“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.”