Beginning over a decade ago, the United Food and Commercial Workers began actively organizing workers in the newly forming cannabis industry under the “Cannabis Workers Rising” campaign. Not too long thereafter, the Teamsters hopped on the cannabis train. As a result, over the past decade, unions have successfully organized thousands of workers in cannabis in a growing number of states ranging from Arizona to Maryland.
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Some of these organizing efforts have benefited from favorable state laws, such as in New Jersey, where cannabis employers must remain neutral in any union organizing campaign. And over the past four years, cannabis workers in all states have been assisted by a very favorable National Labor Relations Board (NLRB), which took a number of steps during the last Administration to make it significantly easier for workers to organize unions. At the same time, the Board continued to expand the rights of non-union workers under the National Labor Relations Act, as well.
However, the gains the labor movement made in the cannabis industry (and other industries) over the past several years are likely to go up in smoke. Because of its unique structure, a change in political party in the White House always has a significant impact on the Board’s priorities, which waver from decidedly pro-union/pro-employee under a Democratic Board to clearly pro-employer under a Republican Board.
Unlike in his first term, President Trump has decided to take a unique approach this time around. Not even a week into his second term, the President terminated one of the two Democratic Board members, Gwynne Wilcox. Ms. Wilcox has since sued the President, arguing that her termination violated the NLRA, which only allows the President to remove a Board member “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
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Significantly, in April 2024, SpaceX filed a lawsuit in federal district court against the NLRB asserting, among other constitutional challenges, that the NLRA’s removal provisions unlawfully restricted Presidential power to control members of the Executive Branch. That case has already found its way to the appellate level, so it is likely that the Supreme Court will decide this issue at some point down the road.
In the meantime, the President’s unexpected termination leaves the Board without a quorum, which is required for the Board to perform several of its most critical functions, such as deciding cases involving unfair labor practices and union petitions. After terminating the Board’s General Counsel (which was not unexpected), President Trump appointed an Acting General Counsel who quickly signaled that he was shifting priorities by rescinding dozens of his predecessor’s guidance memoranda. With no indication that the President intends to appoint two new Board members anytime soon (which would then be subject to approval by the Senate), the Board’s manufactured dysfunction will almost certainly stymie the once-budding labor movement in the cannabis industry, at least for the near future.
*This article was submitted by a guest contributor. The author is solely responsible for the content.