Bud tenders have rights, judge rules in union case
The legalized marijuana industry is relatively young, but cannabis-oriented businesses, like all businesses in the U.S., need to make sure they’re aware of decades-old worker rights and the nuances that go with them.
An Arizona cannabis dispensary recently dealt with this when a court sided with a bud tender who had been fired after leading a campaign for union representation.
The cannabis dispensary said the employee had been fired for violating the company’s cash handling policy, but an administrative court judge ruled that the timing of the firing raised questions about a link between union activity and the loss of employment.
The case is awaiting review by the National Labor Relations Board (NLRB), but a federal judge has ruled that the fired worker needs to be reinstated while the case is pending.
Bud tender discusses unionization
In this case, the employee had worked as a bud tender for three years. Her job responsibilities included selling medical marijuana, which is legal in Arizona. She also stocked and cleaned the store.
In November 2019, the employee reached out to union officials to discuss organizing a union at the store where she worked. Over the next six months, she also spoke with most of her coworkers about unionizing.
These discussions revolved around what unionization would entail and how it might improve COVID-19 safety protocols.
Employer meets with workers
A manager became aware of a union petition in July 2020, court records indicate, and the company held an educational meeting to present its point of view.
The administrative law judge found that company representatives made remarks during the meeting that were designed to sway employees away from supporting the union.
This included telling employees they would lose their tips if they formed a union and would receive better discounts if they did not unionize.
Employee leading campaign is fired
In August 2020, the employee who had led the union organizing campaign was fired for violation of the company’s cash handling policy. The timing of her firing was suspicious, the court found, as it was only a few weeks after the employer learned she was leading the union organizing campaign. In addition, other employees who had cash handling violations were not terminated.
The court also noted that, although the employee organizing the union had not told her employer about her efforts, the employer was aware of her activities. This created an unlawful impression of surveillance.
Court finds evidence of unfair labor practices
An administrative court judge found that the company engaged in unfair labor practices. The case is currently pending before the NLRB, and the company has filed exceptions to the administrative judge’s decision.
In the meantime, a federal judge’s orders are in effect. The federal judge’s injunction:
- Requires the company to reinstate the union supporter who had been fired.
- Prohibits the company from threatening employees with losing their tips if they form a union.
- Prohibits the company from promising employees benefits if they don’t join a union.
- Prohibits the company from creating an impression that employees’ union activities are being kept under surveillance.
Employee protections under the NLRA
Under the National Labor Relations Act (NLRA), which was passed by Congress in 1935, employees have the right to form or join a union and discuss union organizing. The law also protects an employee’s right to discuss terms and conditions of employment.
If an employer fires (or otherwise penalizes) an employee for taking part in an activity protected by the act, the NLRB steps in.
Key to remember: Employers, whether in established industries or relatively new ones like legalized marijuana sales, must be careful when taking actions that might infringe on an employee’s right to discuss wages, benefits, working conditions, or unionization.
