Conditional Adult Use Retail Dispensary (“CAURD”) license applicants and those applicants seeking unconditional licenses in New York must comply with the New York State mandate and enter into, maintain and comply with a Labor Peace Agreement (“LPA”) with a bona-fide labor union. However, an LPA is not required to apply for a CAURD license, but selected CAURD applicants will be required to enter into an LPA prior to final license award. If applicants fail to do so, they will not be able to legally grow, distribute or sell cannabis products in the State of New York.
State-mandated cannabis industry LPAs are not new to New York, as the licensees in the state’s medical cannabis market are already required to sign them. The Marijuana Regulation and Taxation Act (“MRTA”) has since expanded LPA requirements to the adult-use market. Any business applying for a license under the MRTA, regardless of size or number of workers, must demonstrate they have a signed LPA to receive a license and maintaining an LPA is an ongoing condition of licensure after the initial license has been awarded.
What is a labor peace agreement?
New York’s law defines LPAs as agreements between an entity (employer) and a bona-fide labor organization that, at a minimum, protects the State’s proprietary interests by prohibiting labor organizations and members from engaging in picketing, work stoppages, boycotts, and any other economic interference with the entity.
For purposes of this requirement, a “bona fide labor organization” is defined by the Office of Cannabis Management (“OCM”) as a labor union: (1) That represents employees in this state with regard to wages, hours and working conditions; (2) In which officers have been elected by secret ballot or otherwise in a manner consistent with federal law, and; (3) That is free of domination or interference by any employer and has received no improper assistance or support from any employer.
What does a CAURD applicant’s LPA need?
To comply with New York State law, a standard LPA document that satisfies the goals of the statute, must include:
- Terms prohibiting labor organizations and members from engaging in picketing, work stoppages, boycotts, and any other economic interference with the entity;
- Language ensuring an employer remains neutral toward a unionization campaign in the workplace; and
- Provisions governing access to the employees by the union to ensure free and open communication without disrupting employees.
Because agreeing to an LPA is a condition of doing cannabis business in New York State, it is clear that the unions have the stronger bargaining position in negotiating an LPA. As such, in negotiating an LPA a union may try to include union-friendly provisions that give the union an advantage that exceeds what the New York State Law requires. Those provisions may include ones requiring an employer to voluntarily recognize the union upon a showing of majority support and waive its rights to pursue certain proceedings before the National Labor Relations Board (NLRB). The NLRB protects the rights of employees to act together to address conditions at work, with or without a union.
Final thoughts for CAURD applicants
As an applicant and potential employer, CAURD applicants should carefully consider all potential union partners when choosing a counterpart for an LPA and shop around if necessary. Additionally, employers/applicants should be weary of entering into LPAs with excessive union-friendly terms that may go beyond the legal requirement for an LPA. Finally, as always, it would be in an employer/applicant’s best interest to consult with an experienced attorney during the LPA negotiation process.
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