Selling Virginia Pot? Expect A Union Label

by Steve Haner

When Virginians begin to buy marijuana from state-licensed providers, if Governor Ralph Northam has his way, along with his smiling visage on every baggie of grass you may also find a union label.

I’m kidding about getting high with the governor’s image on the package but using the legalization bill to promote union political goals through a back door is no joke. Future state marijuana licensees may be in danger of losing their ability to sell pot if they fail to live up to various union-driven labor law requirements, set out below. 

Does it matter? If the General Assembly can do this to one class of state licensee, expect it to move on to every other form of state licensee, from hairdressers and auto dealers to brain surgeons and wine wholesalers. This is a test and the legislature may have its brain so fogged by THC it fails.

An amendment the Governor has proposed to House Bill 2312 and its Senate companion – up for a vote Wednesday — would allow a license to be revoked if the licensee has refused to:

  • remain neutral regarding any union organizing efforts by employees, including card check recognition and union access to employees,
  • pay employees prevailing wages as determined by the U.S. Department of Labor; or
  • classify no more than 10% of its workers as independent contractors and such workers are not owners in a worker-owned cooperative.

The marijuana legalization bill passed in a 264-page version, and rather than offer discreet amendments the Governor has proposed a 283-page substitute.  The nineteen additional pages are by themselves longer than the vast majority of bills. If any legislator claims Wednesday to know what the Sam Hill they are voting on, peg them as shameless fools. It is 283 pages, much of it new.

But now you know this is buried in there, on page 147 of the substitute. The tactical advantage of a substitute bill is there is no way to make an easy comparison to the original. Legislators usually have to vote on the whole package, up or down. There are legislative maneuvers which would allow legislators to isolate and remove that particular paragraph, but it takes a bit of doing.

This may be the most complicated bill passed in generations, taking a full two pages just to list all the Code of Virginia sections being added, deleted, or amended. Exactly which of the various new government entities (politically controlled, of course) would be policing the union-neutral attitudes or prevailing wage practices, or nose counting independent contractors, is not clear.

Even to answer that question might constitute the practice of law all by itself.

Setting aside the question of legalizing pot and setting up a state-controlled industry to distribute and tax it and setting aside the heavy racial overtones the debate took on to back off opponents, inserting these labor law provisions into the licensing requirement is quite a gutsy move.

Nothing in existing federal or state law requires an employer to remain neutral in any discussion over the formation of a union among its employees. The governing National Labor Relations Act provides quite a few rules for such debates and a forum for either side to bring complaints. That first bullet point above removes a federal protection employers enjoy and endangers the constitutional status of the entire bill.

The idea that a bunch of state committee patronage appointees mainly interested in dealing drugs are going to take on the task of policing union elections, prevailing wage debates and independent contractor status should send shivers down spines. Seriously, it will not stop with pot dealers. Every other licensee must assume they are next. 

Big mistake. Really big mistake. If that cannot be removed from the substitute, it should be defeated Wednesday. That would return the state to the slower schedule for legalizing the drug.

Update:  Thomas Jefferson Institute just sent this to its list, and Chris Braunlich remembered and added a link to this apropos snippet from SNL….