Subject: Trendspotting: 2024 Labor Activity On The Rise: LRI INK

April 11, 2024

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The Cannabis Industry’s Labor Tightrope: An Industry Still In Flux

by Kimberly Ricci

Cannabis employers sit in an unenviable spot in 2024. It’s not easy to run a business that is not federally legal yet still required to adhere to federal law, including the National Labor Relations Act (NLRA). As a result, growers, producers, delivery drivers, and retail workers at dispensaries are regularly circled by an assortment of unions. This activity has, of course, only grown more heightened by the new Cemex framework that makes it easier for workers to unionize. 


Additionally, the deck is further stacked against cannabis employers in the eight states that require or incentivize businesses to take a neutral stance (through Labor Peace Agreements, or LPAs) during labor campaigns. More states are currently mulling over this practice, and only one thing is sure at present: the cannabis industry doesn’t seem nearly as laid-back and enjoyable to maneuver through as those who partake might imagine. 


Don’t get your hopes up too high for Biden’s board to side with cannabis employers. Yet a St. Louis cannabis company is hoping to catch a break within an organizing campaign targeted at BeLeaf Medical’s Sinse Cultivation post-harvest workers. Depending on how the case goes, the results could impact the entire cannabis industry.


The issue here involves potentially classifying these employees as agricultural workers who are generally excluded from union representation under the NLRA.

And as we have previously discussed, some states have opted to tweak the treatment of farm work in labor law. In particular, New York passed a 2021 law that allows farm workers to unionize via card-check. California has taken a similar route, but no such law exists in Missouri, and the company is requesting federal intervention. The result will determine whether post-harvest cannabis workers can or cannot organize under the NLRA. 


Thus far, an NLRB regional director has ruled twice against BeLeaf’s rationale -- that these workers are handling “raw flower” with their hands—and the company has requested a review. This leaves the decision regarding the group of workers who want to unionize to the NLRB.


It’s a surprisingly complicated distinction, too. Specifically, the duties of these 16 cultivation facility workers include handling dried plants and the de-stemming process. These tasks are distinct from a group that harvests and hangs the plants for drying. And yet another group picks up the ball for processing and packaging of pre-rolled joints. If the NLRB regional director has their way, then the group of workers who are attempting to unionize will be treated similarly to those who ferment leaves in the tobacco industry.


These distinctions might not mean much to those unfamiliar with this industry. Still, however, a board decision to classify these workers as covered by the NLRA will substantially affect cannabis employers, who already walk a precarious tightrope, not only with laws but an almost prohibitive level of taxation. The industry could stand to catch a break and maybe not chill out, but at least rest slightly easier while running their business.

Trendspotting: 2024 Labor Activity On The Rise

by Michael VanDervort

Let’s examine the current labor trends for 2024 as reported by the NLRB and from our own labor databases. The NLRB's recent statistics release paints a picture of a changing and challenging labor environment. Labor activity is on the rise.


NLRB Trend Report for 1st Half Fiscal Year 2024


Unprecedented Increase in Union Petitions and Unfair Labor Practices

The NLRB's field offices have experienced a significant surge in activity, with union election petitions skyrocketing by 35% compared to the same period in Fiscal Year 2023. This translates to a staggering 1,618 petitions filed, a stark increase from 1,199. The breakdown is particularly revealing, with 1,137 RC petitions initiated by employees and 281 RM petitions by employers, indicating a significant rise in the latter following the Board’s influential Cemex decision.


Simultaneously, unfair labor practice (ULP) charges have increased by 7% to 10,278 cases. Combined with union petitions, the NLRB received 11,896 cases in just half a year, underscoring a 10% rise over the previous year.


A Closer Look at the Trends

This spike in filings doesn't exist in a vacuum. These trends have continued in recent years, with fiscal year 2023 seeing a 10% increase in ULP charges and a 3% rise in election petitions. Fiscal Year 2022 was even more dramatic, witnessing a 53% jump in union petitions and a 19% increase in ULP charges compared to 2021.


The Cemex Decision’s Ripple Effects

The Cemex decision had a profound impact, especially in the increase of RM petitions filed by employers. This decision has prompted more employers to seek clarity or challenge unionization efforts, marking a significant shift in the dynamics of labor relations.


LRI Rightnow Trends Summary Q1 2024

LRI Rightnow just released its newly updated 2024 Q1 Petitions and Elections Review, which includes some interesting data for 2024 so far.


Representation Elections See a Significant Uptick

The NLRB certified 391 representation (RC) elections in the first quarter, marking a substantial 25% increase compared to the same period in 2023. This rise signifies a growing momentum in unionization efforts, with unions winning a remarkable 80.6% of these elections. This success translated into the organization of 20,814 workers, reflecting a robust push towards collective bargaining and workers' rights advocacy.


A Dip in Decertification Elections

Contrasting with the surge in representation elections, decertification (RD) elections saw a 25% decrease, with only 27 elections certified. Unions faced a 77.8% loss rate in these elections, a significant downturn from the 61.1% loss rate in 2023, leading to 735 workers exiting union representation. This shift may indicate a complex landscape of worker satisfaction with union representation or strategic employer interventions.


Employer-Filed Elections Surge Dramatically

Employer-filed (RM) elections experienced an unprecedented increase, with a 4500% surge compared to the previous year, resulting in 46 elections certified. In a remarkable turnaround from 2023, where unions won none of these elections, they secured victories in 56.5% of cases in the first quarter of 2024, organizing 755 workers.


Regional and State-Level Dynamics

The activity across NLRB regions varied, with Region 19 leading in RC election certifications. Region 31 showcased a 100% union success rate, the highest among regions with significant election activity, while Region 12 lagged with the lowest success rate at 64%. On a state level, California emerged as the most active, hosting 44 RC elections. Massachusetts boasted a 100% union success rate, standing out among states with considerable election activity, whereas Michigan recorded the lowest at 46%.


Industry and Unit Size Insights

The Information industry emerged as the most fertile ground for union success, with a 95%-win rate in RC elections. In contrast, the Construction industry presented more challenging conditions, with unions winning only 45% of such elections. Interestingly, voters in unit sizes ranging from 101 to 500 showed a strong preference for unionization, with a 97% success rate in RC elections, while voters in unit sizes from 101 to 500 were the least likely to vote against the union in decertification elections with a 67% union win rate.


Reflecting on the latest NLRB and LRI RightNow reports, it's clear we're seeing a lot of labor activity. Staying informed on these developments is crucial in responding successfully should labor activity impact your company. We offer some great free resources that can help you track these trends via LRI Rightnow, including: (Login Required)


·  Totals

·  Union LM Data

·  Company Report

·  Recent Petitions

·  Recent Elections

·  Union Scoreboard

·  Union Cost Calculators

·  Interactive Maps

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Workers at North Center Trader Joe's are first in Chicago to file for union election

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Nevada Culinary Workers Union has mastered political organizing 

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Alabama Mercedes Benz plant workers file for union election, UAW says 

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About Labor Relations INK

Labor Relations INK is published weekly and is edited by Labor Relations Institute, Inc. Feel free to pass this newsletter on to anyone you think might enjoy it. New subscribers can sign up by visiting here.


If you use content from this newsletter, please attribute it to Labor Relations Institute and include our website: http://www.LRIonline.com 


Contributing editors for this issue: Greg Kittinger, Michael VanDervort, and Kimberly Ricci.


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About Labor Relations Institute

LRI exists to help our clients thrive and become extraordinary workplaces. We improve the lives of working people by strengthening relationships with their leaders and each other. For over 41 years, LRI has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

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