Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—NLRB: Marijuana grower’s post-harvest employees not agricultural workers excluded from bargaining unit, (Apr 27, 2026)

By Ronald Miller, J.D.

In assessing whether a given practice is agricultural in the secondary sense or nonagricultural, Federal courts look particularly at whether the practice “substantially changes the physical properties and chemical content” of the agricultural product.

A three-member panel of the NLRB denied an employer’s request for review of a regional director’s direction of election regarding the appropriate make up of a bargaining unit. The employer, a medical marijuana grower, argued that its post-harvest employees were agricultural laborers, not statutory employees under the NLRA, and should not be included in the bargaining unit. However, the regional director found that the post-harvest employees were not agricultural employees and were therefore included in the bargaining unit. Member Mayer filed a separate concurring opinion (BeLeaf Medical, LLC, 374 N.L.R.B. No. 100 (Apr. 23, 2026)).

Representation petition. The employer operates a vertically integrated cannabis company that operates three cultivation facilities as well as five dispensaries. On September 15, 2023, the union filed a representation petition seeking to represent packaging, lab/kitchen, and fulfillment employees working at one of the employer’s facilities. The employer contended that the packaging employees were actually harvest technicians and post-harvest technicians, all of whom are agricultural workers exempt from the Act. The union countered that they are not agricultural employees and are not exempt from the NLRA. The post-harvest employees account for 13 of the 18 petitioned-for employees.

Duties of post-harvest employees. The post-harvest employees take down dried marijuana plants from where they were hung and then begin the de-stemming process. This process occurs in a trim room on the facility’s first floor in a separate room from where cultivation takes place. The process takes up anywhere from 25 percent to 30 percent of post-harvest employees’ time.

After destemming, the marijuana plants are trimmed, and the marijuana is run through Mobius, a tumbler trimmer. The marijuana is then cured in the curing room for anywhere from 10 to 14 days. Finally, the marijuana is either packaged or processed into preroll joints. The packaging takes place in a separate room on the second floor and is usually performed by five to seven post-harvest technicians. Packaging takes anywhere from 35 to 50 percent of the post-harvest employees’ time. When post-harvest employees are finished with their primary tasks of either trimming or packaging, they use that time to fill prerolls.

Statutory “employees.” The NLRA applies only to statutory “employees” and Section 2(3) of the Act excludes from that definition “agricultural laborers.” Per Congressional direction, the definition of “agricultural laborer” in Section 2(3) of the Act is tethered to the parallel definition in Section 3(f) of the FLSA.

Section 3(f). Section 3(f) of the FLSA provides that agriculture includes farming in all its branches. The definition has “two distinct branches:” first, the “primary meaning” of agriculture and second, “the broader meaning” which encompasses incidents to farming. Department of Labor regulations provide guidance on how to distinguish between secondary agricultural activities and nonagricultural activities under Section 3(f). A practice is secondarily agricultural “only if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business.” The secondary agricultural practices can include “preparation for market” but does not include “preparation for sale.”

In assessing whether a given practice is agricultural in the secondary sense or nonagricultural, federal courts look particularly at whether the practice “substantially changes the physical properties and chemical content” of the agricultural product.

Totality of circumstances. The Board applies a totality of circumstances approach that analyzes the applicability of the exemption classification-by-classification rather than on an employer-wide basis. As such, each class within the post-harvest group was analyzed in turn.

First, weighing all the factors under a totality of circumstances approach, the post-harvest employees were not engaged in secondary agriculture under 3(f) of the FLSA. The post-harvest group is a separate department from the cultivation and harvest departments who do the primary growing and harvesting activities. Further, the post-harvest department has neither overlapping functions nor interchange of employees with either of those departments, and the post-harvest department works in separate rooms or floors from the cultivation and harvest departments. Additionally, the post-harvest department is a substantial operation in its own right. The production activities of the post-harvest department increases the value of the raw plant material that comes out of the cultivation activities upstream in the production process.

Second, the process transforming a three- to five-foot tall plant into cured buds is undoubtedly a physical transformation. One of the strongest arguments in favor of finding 2(3) employee status is the prerolling and packaging activities performed by the technicians. Further, the task of packing marijuana in 1-gram, 3.5-gram, 7-gram, and 14-gram packages is a preparation for sale that is outside of secondary agricultural activity. All of these factors weigh strongly in favor of finding that the post-harvest technicians are employees under the Act.

Similarly, the post-harvest leads are not engaged in agriculture work under Section 3(f) of the FLSA. They engage in the mechanical trimming process and in the packaging and prerolling processes. Additionally, the post-harvest lead who works the packaging room has the responsibility of maintaining spreadsheet logs of weights being packaged. Thus, the post-harvest leads and post-harvest trim leads were employees under the Act and should be included in the unit.

Finally, the post-harvest METRC specialist was also not engaged in agriculture work pursuant to 3(f) of the FLSA and was eligible to be included in the unit. The bulk of their time was spent ensuring compliance with Missouri’s track and trace regulatory scheme by weighing and tagging cannabis.

Accordingly, the regional director found that the post-harvest employees are statutory employees under the Act and are not exempted as agricultural laborers.

The Board agreed with the regional director, for the reasons provided in her decision, that none of the workers employed in the classifications at issue here are agricultural laborers under the secondary definition of agriculture. The activities of the post-harvest employees generally are not performed by ordinary farm employees, and the activities in question have only an attenuated relationship to farming in the traditional sense.

Concurrence. Member Mayer concurred in the denial of review and agreed that the employer has not shown the post-harvest employees fall within the FLSA Section 3(f) agricultural exemption and are therefore Section 2(3) employees covered by the Act. In Member Mayer’s view, the Board should continue to apply the case-by-case approach with particular care in matters, such as the one presented here, involving emerging or rapidly evolving industries whose operational processes may give rise to novel considerations.

The slip opinion is 374 NLRB No. 100.

Attorneys: Jeremy Brenner (Armstrong Teasdale) for BeLeaf Medical, LLC. Emily Perez (Hammond and Shinners) for United Food & Commercial Workers Local 655.

Companies: BeLeaf Medical, LLC; United Food & Commercial Workers Local 655

Cases: Labor OrganizingElections AgencyNews