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For Marijuana Workers’ Union, Hope Sprouts Eternal

by Mark I. Schickman

You may have heard that California is going broke. As we look for more ways to generate revenue, one idea keeps cropping up: Move marijuana out of the underground economy and develop a new tax-generating agricultural product. Medical marijuana clubs have sprouted all over the state, and the November general election will tell us whether new points of sale will flower for legal recreational use.

This new industry will create a new group of jobs, and in California, labor unions are never far behind. Oakland-based Teamsters Union 70 has organized and represents employees at Marjyn Investments, LLC, an Oaksterdam business that grows pot for medical marijuana smokers. The new Teamsters contract starts these unskilled laborers for jobs like trimming and packaging marijuana buds at $18 per hour, which will grow to $25.75 within 15 months. The workers also get a pension, paid vacation, and medical insurance. Jimmy Hoffa would be turning over in his day-glow-poster-lined-black-light-illuminated crypt (as likely as any other place he is buried).

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Brownies loaded with questions
This new factor creates a series of novel legal issues. First, can the National Labor Relations Board (NLRB) excuse jurisdiction over a craft of criminals under federal law? We’ll not likely ever find out because the NLRB has no jurisdiction over agricultural workers, anyway. So are employees trimming and packaging buds akin to agricultural workers who are covered by California’s Agricultural Labor Relations Board or more like the Safeway fruit guy who hacks off the tops of pineapples before putting them out on the shelf?

Speaking of jurisdictional fights, we can expect the Teamsters and the United Farm Workers to duke it out over who represents any field workers. Other unions, like the United Food and Commercial Workers (UFCW), have organized in the retail outlets — foreshadowing a potential turf war: If the grower hires a trimmer, she’s a Teamster, but if the club does, she’s in the UFCW. And if it sells pot brownies or cupcakes, here comes Bakers Union Local 24’s claim that a union baker’s dough rises higher.

Union shop or not, special problems are apt to arise. Every company work rule will have to end with the word “Dude.” Extra breaks will have to be given to accommodate munchies. Teamsters informational pickets will be more entertaining, festooned with unicorns and misspelled-backwards words, while the counter picketers carry signs of R. Crumb figures saying “keep on trucking.”

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‘Not stoned, just stupid’
No surprise that California’s largest union, the Service Employees International Union (SEIU), has just endorsed Proposition 19, the November ballot initiative to legalize marijuana in California. The labor movement sees the potential in this budding area of union organization. Meanwhile, the California Cannabis Association has come out against Proposition 19 —  who can understand why stoners do anything? Polls show the measure losing 48 percent to 44 percent.

The unionization of California’s marijuana industry is already occurring under California’s very liberal, very public, very regulated medicinal marijuana establishment, which served just over 200,000 card-carrying California patients in 2009. If Proposition 19 passes, though, it won’t be the Armageddon the California Chamber of Commerce foresees. It will raise some real questions for employers, whose every employee would be protected by the law.

The biggest question: Proposition 19 says an employer can’t discipline someone for pot use unless it “actually impairs job performance,” giving rise to the “I’m not stoned, just stupid” defense. The “actual impairment of performance” test is an unusually hard standard to meet. It may not be critical when the job is cutting, trimming, or selling marijuana, but if you’re building a plane or working at a nuclear power plant, I’d really prefer to have an enforceable way to know you are on top of your game.

So we deal with this like any other industry. It’s important not to glorify this new business for anything more than it is — a new seasonal California crop that needs arduous labor toiling long hours during a harvest season, after which the laborers migrate elsewhere. John Steinbeck was writing about those issues 65 years ago.

Experts are all over the map over whether the facial advantage of a new cash crop and supporting workforce will be outweighed by lower productivity, more accidents, and greater need to fund drug abuse programs. The polls show that California voters are just as divided. But, wow, I’ve just figured out the argument that will prevail in this political battle — oops, I forgot what it was.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200.