The attorney for the employees of South Jersey's only medical marijuana dispensary said Monday that he would file a new petition with the National Labor Relations Board alleging that their attempt to join a union was blocked by their employer.
Mark E. Belland said he recently withdrew the complaint he filed this year on behalf of workers at the Compassionate Care Foundation facility in Egg Harbor Township because the rules for organizing a union changed this month.
"We plan to refile under the new rules, which set up a more streamlined and quicker process for employees who want to organize," Belland said. The new rules also require the employer "to identify all the issues that he intends to contest" if he opposes the bid to unionize, the lawyer said.
An NLRB spokesperson confirmed the rule changes, which took effect last Tuesday.
A majority of the 11 growers and dispensary employees at Compassionate Care, which is near Atlantic City, also filed unfair labor practices charges against their employer, according to United Food and Commercial Workers Local 152 in Mays Landing. The workers had approached Local 152 and asked for representation.
Belland said the unfair labor complaints are still under investigation by the NLRB. The employees contend Compassionate Care retaliated by lowering their wages and altering their hours. They earn between $12 and $25 an hour.
David Knowlton, chairman of the nonprofit Compassionate Care Foundation, said Monday that he is not against unions, but said, "We are waiting to stabilize our finances first." In an interview, Knowlton said the foundation "is technically insolvent" and is trying to find lenders to help with expenses. "The problem with not-for-profit marijuana dispensaries is you're operating without the benefit of investments and end up borrowing money at a very high rate," he said.
Knowlton also said the charges of unfair labor practices are untrue.
Since opening in October 2013, the dispensary has served about 1,000 patients. Statewide, it is one of only three dispensaries that are open.
Knowlton also said Ballard Spahr, a Philadelphia-based law firm that he enlisted to represent Compassionate Care in the NLRB matter, had declined to continue with the case. He said the firm has asked the Pennsylvania Bar Association to clarify whether attorneys are legally permitted to represent marijuana dispensaries while the federal government still views the sale and possession of marijuana as illegal.
"The NLRB knows this . . . and I asked them to wait until the bar rules," Knowlton said, saying it would be unfair if he is forced to proceed without an attorney.
A representative for Ballard Spahr declined comment.
James J. Ferrelli, the former head of the Burlington County Bar Association, has convened a committee to study the issue of whether lawyers can represent or defend those in the medical marijuana business in New Jersey. "We haven't seen any situations where a lawyer has been subjected to disciplinary procedures," he said, but other states with medical marijuana laws have "tweaked" the rules for professional conduct to define what is and is not allowed. After reading legal and news reports on the issue, Ferrelli said, he volunteered to work on recommendations.
New Jersey legalized medical marijuana five years ago and some lawyers have taken on cases involving dispensaries, exercising their judgment to do so, Ferrelli said. "My advice would be that you need to look at a situation very carefully and to look precisely at what you are being asked to do, and use your best judgment," he said. "Different lawyers have different levels for risk tolerance."
Belland questioned Knowlton's contention that he cannot find an attorney. "Frankly, our sense is he's hiding behind that and trying to gain whatever advantage he can by delaying the process. . . . It's an advantage to do so, because some employees give up and may leave," he said, adding that one worker at the dispensary quit more than a month ago.
In their complaint, the workers said they took a temporary 60-day pay cut in July 2014 when Compassionate Care said it was having financial difficulties. After that period expired and their wages were not restored to their former levels, they inquired about joining a union and were retaliated against when the nonprofit said it would not provide full wages or back pay, according to the complaint. "Schedules have been altered in a manner to punish" the workers, the complaint also said.
Knowlton said that several lawyers have represented Compassionate Care in the past, when it was establishing the dispensary and when it was sued by one of the nonprofit's former principals.
Florio Perrucci Steinhardt & Fader, with offices in Woodbury, also represented the nonprofit when it prepared a lawsuit against Westampton Township four years ago for blocking its attempts to open a dispensary in that Burlington County community. That suit was withdrawn when Compassionate Care found its current location.
"On some business things, we have had lawyers," Knowlton said. He said the conflict with the federal law had not come up at that time.
New Jersey is one of 23 states that have legalized medical marijuana despite a longtime federal prohibition against selling or using the drug for medical or recreational reasons. The Obama administration has issued memos stating dispensaries will not be prosecuted as long as they are complying with state laws and do not sell cannabis over state borders.
The NLRB has taken jurisdiction over the New Jersey labor case and does not see a conflict in doing so, spokeswoman Jessica Kahanek said. She cited a 2013 case in which employees filed a complaint against Maine's largest dispensary, in which an agency lawyer wrote an opinion that it was appropriate to hear the matter.
According to the opinion, the national UFCW unuion reported that it has represented "thousands of medical cannabis workers" in the country, even creating a "Medical Cannabis and Hemp Division." It also noted that the Teamsters also have organized marijuana workers.