{"id":1270,"date":"2021-09-22T21:13:47","date_gmt":"2021-09-22T21:13:47","guid":{"rendered":"http:\/\/CBMikwFodHRwczovL3d3dy5tb25kYXEuY29tL3VuaXRlZHN0YXRlcy9lbXBsb3llZS1yaWdodHMtbGFib3VyLXJlbGF0aW9ucy8xMTEzODMyL2NhbjM5dC1pdC1iZS1hYm91dC1jYW5uYWJpcy1jb25uZWN0aWN1dC1zZWVkcy10aGUtcGF0aC10by11bmlvbml6YXRpb27SAQA"},"modified":"2021-09-22T21:13:47","modified_gmt":"2021-09-22T21:13:47","slug":"cant-it-be-about-cannabis-connecticut-seeds-the-path-to-unionization-employment-and-hr-united-states-mondaq-news-alerts","status":"publish","type":"post","link":"https:\/\/thcinct.com\/?p=1270","title":{"rendered":"Can’t It Be About Cannabis? Connecticut Seeds The Path To Unionization – Employment and HR – United States – Mondaq News Alerts"},"content":{"rendered":"
<\/div>\n
\n

Connecticut recently legalized recreational marijuana use by
\nadults. The new law creates complex employment protections<\/a> for
\nrecreational marijuana users. The same legislation also includes
\nprovisions that strongly encourage any cannabis-related employer
\nseeking to operate in Connecticut to permit the unionization of its
\nworkforce.1<\/sup><\/p>\n

Connecticut is not alone in enacting legislation that mandates a
\nlabor-friendly stance for companies that want to receive licenses
\nto operate cannabis-related businesses in the state. New York, New
\nJersey and California, among others, have included similar
\nprovisions in their cannabis-related laws that promote collective
\nbargaining and the recognition of labor organizations.
\nNotwithstanding this trend, federal law arguably pre-empts such
\nlocal regulations, which typically ignore the right of employees
\nunder Section 7 of the National Labor Relations Act (NLRA) to
\nchoose to join in or refrain<\/em> from collective bargaining.
\nRight-to-work organizations have expressed their views<\/a> about these conflicts,
\nbut given recent changes in leadership at the National Labor
\nRelations Board (NLRB) and President Biden’s promise to be “the most pro-union president you’ve ever seen,”
\nemployees and employers that want to overturn the mandates will
\nlikely need to seek such relief from the courts.<\/p>\n

Labor Peace Agreements<\/h3>\n

Section 102 of Connecticut’s legislation requires each
\ncannabis establishment, as a condition of licensing, to enter into
\na labor peace agreement (LPA) with a bona fide labor
\norganization.2<\/sup> The statute defines an LPA as an
\nagreement between a cannabis establishment and a union (1) under
\nwhich the owners and management of the cannabis establishment agree
\nthey will not lock out employees and (2) that prohibits the labor
\norganization from engaging in picketing, work stoppages, or
\nboycotts against the cannabis establishment. Inherent in the LPA
\nrequirement, of course, is that the employer must recognize a union
\nas the representative of its employees and engage in bargaining
\nwith that union in order to reach an LPA-almost certainly as part
\nof a full collective bargaining agreement.<\/p>\n

The legislation further requires that any LPA must include an
\nagreement of the parties that the exclusive remedy for any
\nviolation of the agreement will be final and binding arbitration by
\na neutral labor arbitrator. If an arbitrator finds that an
\nestablishment failed to comply with an order issued by the
\narbitrator to correct a failure to abide by the agreement, then the
\nState Department of Consumer Protection (DCP) must<\/em> suspend
\nthe establishment’s license upon receipt of a written copy of
\nthis finding without pausing for further administrative proceedings
\nor a formal hearing.<\/p>\n

To enforce an arbitration award or seek to lift a license
\nsuspension, the bill allows the cannabis establishment or union to
\nbring a civil action in the superior court. The establishment’s
\nlicense will remain suspended until (1) the arbitrator or both
\nparties to the arbitration notify DCP that the establishment is in
\ncompliance with the arbitration award; (2) both parties notify DCP
\nthat they have satisfactorily resolved their dispute; (3) the
\ncourt, after a hearing, lifts the suspension; or (4) the court,
\nafter a hearing, orders alternative remedies. Judicial remedies may
\ninclude ordering DCP to revoke the license or to appoint a receiver
\nto dispose of any cannabis inventory. With limited exceptions
\n(primarily for medical-use situations), the affected cannabis
\nestablishment cannot sell, transport, or transfer cannabis to
\nanother establishment, consumer or laboratory.<\/p>\n

Project Labor Agreements<\/h3>\n

Section 103 also requires that construction or renovation of any
\nfacility for operating a cannabis establishment for $5 million or
\nmore must be subject to a project labor agreement (PLA) involving
\nall contractors, subcontractors and the cannabis
\nestablishment.3<\/sup> A PLA, under the legislation, means a
\nlabor agreement that:<\/p>\n

    \n
  • binds all contractors and subcontractors on the covered project
    \nto the PLA through the inclusion of specifications in all relevant
    \nsolicitation provisions and contract documents;<\/li>\n
  • allows all contractors and subcontractors to compete for
    \ncontracts and subcontracts on the project regardless of whether
    \nthey are otherwise parties to collective bargaining
    \nagreements;<\/li>\n
  • establishes uniform terms and conditions of employment for all
    \nconstruction labor employed on the project;<\/li>\n
  • guarantees against strikes, lockouts, and similar job
    \ndisruptions;<\/li>\n
  • sets mutually binding procedures for resolving labor disputes
    \narising during the PLA; and<\/li>\n
  • includes any other provisions as negotiated by the parties to
    \npromote successful delivery of the covered project.<\/li>\n<\/ul>\n

    A contractor, subcontractor, or employee
    \norganization4<\/sup> may enforce the PLA mandate or seek
    \nremedies for noncompliance with a PLA by bringing a civil action in
    \nthe superior court. After holding a hearing, the court may order
    \npenalties of up to $10,000 per day for each violation of the PLA by
    \nthe cannabis establishment.5<\/sup><\/p>\n

    Potential Preemption under the National Labor Relations
    \nAct<\/h3>\n

    The legal doctrine of federal preemption is based upon the
    \nSupremacy Clause-Article VI, Paragraph 2 of the U.S. Constitution.
    \nIt establishes that the Constitution and the laws of the United
    \nStates are the supreme law of the land. A state law that interferes
    \nwith congressional intent to regulate certain conduct exclusively
    \nunder federal law is said to be “preempted” and therefore
    \ninvalid. Numerous cases have established that it was the intent of
    \nCongress when enacting the NLRA to preempt, for exclusively federal
    \nregulation, the field of private-sector labor relations.<\/p>\n

    Two sections of Connecticut’s new law may be particularly
    \nripe for preemption challenges. Section 102 conditions license
    \napproval for a cannabis establishment upon entry into an LPA with a
    \nlabor union that is actively seeking to represent cannabis workers
    \nin the state. Section 103 requires a cannabis establishment to
    \nenter into a PLA for all construction or renovation projects
    \n(costing $5 million or greater) of any facility for the operation
    \nof a cannabis establishment.<\/p>\n

    While the specific provisions of LPAs and PLAs may vary from
    \ncase to case, in practice these agreements compel an employer to
    \nmake concessions to a union and its organizing activities. Such
    \nconcessions can include recognizing the union by card check instead
    \nof a secret ballot election, remaining neutral during the
    \norganizing campaign, permitting union organizers access to the
    \nworkplace and providing employee contact information.
    \nConnecticut’s law requires a negotiated LPA to contain an
    \nagreement not to lock out employees in exchange for limits on
    \npicketing, work stoppages and boycotts. Another major concession
    \ndemanded by the law is the requirement that the employer agree to
    \nbinding arbitration for resolution of disputes arising under an
    \nLPA.<\/p>\n

    NLRA preemption has an extensive judicial history, including the
    \nseminal decision Building & Construction Trades Council
    \n(San Diego) v<\/em>. Garmon<\/em>, 359 U.S. 236 (1959).
    \nGarmon<\/em> stands for the principle that potential (not
    \nprovably actual) conflict with the NLRA is sufficient to require
    \npreemption of a state law. Subsequent cases identified exceptions,
    \nsuch as where “compelling state interest” in a matter
    \ncould justify local regulation and where the NLRB chose to cede
    \njurisdiction to the states under its power to decline jurisdiction
    \nover certain employees or disputes. Another exception may exist
    \nwhere the state is acting as a market participant<\/em> (as
    \nopposed to a regulator) when requiring the use of LPAs and PLAs. If
    \nthe state is contracting for a public construction project, for
    \nexample, it is generally permissible to include such requirements.
    \nWhen the state is acting as a regulator, however, the import of the
    \ncases seems to be that enactments conflicting with the NLRA with
    \nrespect to private-sector labor relations may indeed be
    \npreempted.<\/p>\n

    What’s Next?<\/h3>\n

    Despite statutory language to the contrary, it is difficult to
    \navoid concluding that the PLA requirement will effectively prevent
    \nnon-union contractors from working on cannabis-related building
    \nprojects. A challenge to the PLA requirement on preemption grounds
    \ncould, therefore, potentially come from one or more non-union
    \ncontractors. Similarly, the mandate to enter into an LPA
    \neffectively requires any cannabis-related business that wants a
    \nlicense to recognize and bargain with a union regardless of whether
    \nits employees have been given the opportunity to accept or reject
    \nunion representation. A challenge to the LPA requirement on
    \npreemption grounds could therefore be pursued in court by one or
    \nmore cannabis businesses that seek to remain non-union.<\/p>\n<\/div>\n

    The content of this article is intended to provide a general
    \nguide to the subject matter. Specialist advice should be sought
    \nabout your specific circumstances.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

    Connecticut recently legalized recreational marijuana use by adults. The new law creates complex employment protections for recreational marijuana users. The same legislation also includes provisions that strongly encourage any cannabis-related employer seeking to operate in Connecticut to permit the unionization of its workforce.1 Connecticut is not alone in enacting legislation that mandates a labor-friendly stance for companies that want to receive licenses to operate cannabis-related businesses in the state. New York, New Jersey and California, among others, have included similar provisions in their cannabis-related laws that promote collective bargaining and the recognition of labor organizations. Notwithstanding this trend, federal law… <\/p>\n","protected":false},"author":1,"featured_media":1271,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[2],"tags":[],"class_list":["post-1270","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-featured"],"jetpack_featured_media_url":"https:\/\/thcinct.com\/wp-content\/uploads\/2021\/09\/cant-it-be-about-cannabis-connecticut-seeds-the-path-to-unionization-employment-and-hr-united-states-mondaq-news-alerts.jpg","_links":{"self":[{"href":"https:\/\/thcinct.com\/index.php?rest_route=\/wp\/v2\/posts\/1270","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thcinct.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thcinct.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thcinct.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thcinct.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1270"}],"version-history":[{"count":0,"href":"https:\/\/thcinct.com\/index.php?rest_route=\/wp\/v2\/posts\/1270\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/thcinct.com\/index.php?rest_route=\/wp\/v2\/media\/1271"}],"wp:attachment":[{"href":"https:\/\/thcinct.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1270"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thcinct.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1270"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thcinct.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1270"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}