A4182

An Act concerning conditions of employment for certain cannabis workers, amending P.L.1968, c.303, and supplementing Title 34 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 5 of P.L.1968, c.303 (C.34:13A-5.1) is amended to read as follows:

5. There is hereby established a Division of Public Employment Relations and a Division of Private Employment Dispute Settlement.

(a) The Division of Public Employment Relations shall be concerned exclusively with matters of public employment related to determining negotiating units, elections, certifications and settlement of public employee representative and public employer disputes and grievance procedures. For the purpose of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the Division of Public Employment Relations is hereby allocated within the Department of Labor and Workforce Development, and located in the city of Trenton, but notwithstanding said allocation, the office shall be independent of any supervision or control by the department or by any board or officer thereof.

(b) The Division of Private Employment Dispute Settlement shall assist the New Jersey State Board of Mediation in the resolution of disputes in private employment. The New Jersey State Board of Mediation, its objectives and the powers and duties granted by this act and the act of which this act is amendatory and supplementary shall be concerned exclusively with matters of private employment and the office shall continue to be located in the city of Newark.

(c) In the case of a private employer that has any employees not subject to the provisions of the National Labor Relations Act (29 U.S.C. s.151 et seq.), or is not regulated by the National Labor Relations Board pursuant to [the National Labor Relations Act (29 U.S.C. s.151 et seq.)] that act, the New Jersey State Board of Mediation shall designate a representative for a unit of those employees of the private employer, or any employees of the employer if the employer is not regulated by that act, for the purposes of collective bargaining when:

(1) In any case in which the board determines that there is no current majority representative and only one employee organization is seeking to be the majority representative, that organization demonstrates that a majority of employees in the unit have shown their preference to have that organization be their representative by signing authorization cards indicating that preference; or

(2) The employees in the unit have selected a representative by an election that conforms with the procedures outlined in section 159 of the National Labor Relations Act (29 U.S.C. s.159).

For the purposes of paragraph (1) of this subsection, an authorization card indicating preference shall not be valid unless it is printed in a language understood by the employee who signs it.

An employee organization seeking to be recognized as a majority representative, either by a card authorization procedure pursuant to paragraph (1) of this subsection or by an election pursuant to paragraph (2) of this subsection, is permitted, but not required, to petition the New Jersey State Board of Mediation to require the employer to file, within not more than 48 hours, and in the manner required by the board, a complete and accurate list of the full names, current street addresses, and job classifications of the current employees, and phone numbers or other employee contact information available to the employer, which the board shall immediately convey to the employee organization. Any employer who refuses to provide information requested by the New Jersey State Board of Mediation or otherwise acts to prevent the board from carrying out its responsibilities pursuant to this subsection (c) shall have violated this subsection and shall be liable to a fine of not more than [$1,000] $5,000 for each day that the employer fails to provide a complete response or otherwise prevents the board from carrying out its responsibilities, to be recovered under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) in the name of the board and to be used by the board for costs of implementing this subsection. In addition, an employee organization seeking to represent the employees of the employer may institute an action in a court of competent jurisdiction to obtain an injunction to restrain any continuation of the violation, to reimburse the employee organization or any affected employee for any damages caused by the violation plus reasonable costs and attorney's fees of the action.

The provisions of this subsection (c) shall not apply to religious or parochial schools or their employees or to any private nonprofit organization exempt from federal taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. s. 501).

(d) In the case of a private employer regulated by the National Labor Relations Board pursuant to the National Labor Relations Act (29 U.S.C. s. 151 et seq.), the New Jersey State Board of Mediation shall, based on the mutual agreement of the private employer and an organization seeking to represent employees of the employer, designate a representative for a unit of employees of the private employer for the purposes of collective bargaining when:

(1) In any case in which the board determines that only one employee organization is seeking to be the majority representative, that organization demonstrates, in a manner mutually agreed upon by the representative and the employer, that a majority of employees in the unit have shown their preference to have that organization be their representative by signing authorization cards indicating that preference; or

(2) the employees in the unit have selected the representative by an election that conforms with the procedures outlined in section 159 of the National Labor Relations Act (29 U.S.C. s.159).

(e) For the purposes of subsections (c) and (d) of this section, "employee unit" means an appropriate group of employees for the purposes of collective bargaining as determined, if necessary, by the New Jersey State Board of Mediation.

(cf: P.L.2005, c.161, s.1)

2. (New section) a. Cannabis employers and their representatives and agents are prohibited from the following unfair practices with respect to cannabis workers:

(1) Interfering with, restraining, or coercing employees in their exercise of rights guaranteed by P.L. , c. (C. ) (pending before the Legislature as this bill).

(2) Dominating or interfering with the formation, existence or administration of any employee organization, including any violation of the provisions of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(3) Discharging, threatening to discharge, or otherwise discriminating with respect to hire or tenure of employment or any term or condition of employment to encourage or discourage employees from signing or filing an affidavit, petition or complaint or disclosing any information or testimony, or exercising any other rights guaranteed by P.L. , c. (C. ) (pending before the Legislature as this bill).

(4) Refusing to negotiate in good faith with a majority representative of employees concerning terms and conditions of employment, refusing to process grievances, or refusing to reduce to writing and sign a negotiated agreement.

(5) Violating any rules or regulations adopted by the State Board of Mediation.

b. Organizations representing, or seeking to represent, cannabis workers and representatives and agents of those organizations and agents are prohibited from the following unfair practices with respect to cannabis workers:

(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by P.L. , c. (C. )(pending before the Legislature as this bill).

(2) Interfering with, restraining or coercing a cannabis employer in the selection of the employer’s representative for the purposes of negotiations or the adjustment of grievances.

(3) Refusing to negotiate in good faith with a cannabis employer concerning terms and conditions of employment, or refusing to reduce to writing and sign a negotiated agreement.

(4) Violating any rules or regulations adopted by the State Board of Mediation.

c. The State Board of Mediation shall have exclusive power to prevent anyone from engaging in any unfair practice listed in subsections a. and b. of this section. Whenever it is charged that any party has engaged or is engaging in an unfair practice, the board, or its designated agent, shall have authority to issue and cause to be served upon the party a complaint stating the specific unfair practice charged and including a notice of hearing containing the date and place of hearing before the board or its designated agent, except that no complaint shall be based on an unfair practice occurring more than six months prior to the filing of the charge unless the aggrieved person was prevented from filing the charge, in which event the six-month period shall be computed from the day the person was no longer prevented. If the board determines that any party charged has engaged or is engaging in an unfair practice, the board shall state its findings of fact and conclusions of law and issue and cause to be served on the party an order requiring the party to cease and desist from the unfair practice, and to take reasonable remedial or affirmative action as will effectuate the policies of P.L. , c. (C. ) (pending before the Legislature as this bill), which shall, in the case of a discharge or other discrimination against any employee for exercising rights guaranteed by P.L. , c. (C. ) (pending before the Legislature as this bill), include reinstatement to any employment from which the employee was discharged, the payment of any wages lost due to the discrimination, reasonable costs of action, and liquidated damages equal to the wages due. Any case in which a complaint and notice of hearing are issued by the board shall be prosecuted before the board by a representative of the employee organization or other party filing the charge.

d. The board shall have the power to apply to the Appellate Division of the Superior Court for an appropriate order enforcing any order of the board issued pursuant to subsection c. of this section, and its findings of fact, if based upon substantial evidence on the record as a whole, shall not be set aside or modified, and any order for remedial or affirmative action, if reasonably designed to effectuate the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), shall be affirmed and enforced.

3. (New section) a. If an employee organization seeking to be a majority representative of cannabis workers employed by a cannabis employer petitions the New Jersey State Board of Mediation to require the employer to provide a list of the current employees with contact information pursuant to section 5 of P.L.1968, c.303 (C.34:13A-5.1), the employer shall, along with providing the list and contact information, provide the employee organization access to the employees. The required access to employees shall include, but not be limited to, permitting representatives of the organization to meet with employees on the premises of the employer during the work day, and permitting representatives of the organization to meet with employees at any employee living quarters under the control of the employer.

b. A cannabis employer shall permit any employee organization which is a majority representative of employees of the employer:

(1) to access the employer’s premises to investigate and discuss with the employees grievances, workplace-related complaints, and other workplace issues;

(2) to conduct worksite meetings during non-work breaks, and before and after the workday, to discuss workplace issues, collective negotiations, the administration of collective negotiations agreements, other matters related to the governance, business, and duties of the employee organization; and

(3) to meet with a newly hired employee within five days after hire, without charge to the pay or leave time of the employee.

c. A cannabis employer shall provide the majority representative with timely notification of any new hiring by the employer or change in the contact information of current employees.

d. A cannabis employer shall carry out payroll deductions of membership dues for the majority representative, and payroll deductions for representation fees from non-members, as agreed to in negotiations between the employer and the majority representative, or, if an agreement is not reached, as set by the State Board of Mediation.

e. A cannabis employer shall not discourage an employee from joining, forming or assisting an employee organization, or encourage employees to resign or relinquish membership in an employee organization, or revoke authorization of the deduction of dues or fees to an employee organization.

f. A cannabis employer who violates any provision of this section shall be regarded as having engaged in an unfair practice in violation of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), and, upon a finding that the violation has occurred, the board, in addition to implementing any other remedies authorized by that section, shall order the cannabis employer to make whole the employee organization for any losses suffered by the organization as a result of the violation.

4. (New section) Notwithstanding any law to the contrary, an organization representing cannabis workers, and its members, representatives, and supporters, shall have the right to engage in publicity, including picketing, for the purpose of truthfully advising the public, including consumers, that products or the ingredients of products are produced by a cannabis employer with which the organization has a dispute, including publicity which has the effect of requesting the public to cease patronizing businesses which distribute or sell those products. Nothing in P.L. , c. (C. )(pending before the Legislature as this bill) shall be construed so as to interfere with or impede or diminish in any way the right of employees of private employers to strike or engage in other concerted actions.

5. (New section) The New Jersey State Board of Mediation shall adopt regulations as needed regarding the conduct of the selection of majority representatives though election or authorization card procedures pursuant to subsection (c) of section 5 of P.L.1968, c.303 (C.34:13A-5.1), procedures for negotiations between majority representatives and cannabis employers, the resolution of grievances, the collection of dues and fees for the majority representatives, and other matters concerning terms and conditions of employment.

6. (New section) For the purposes of sections 2 through 6 of P.L. , c. (C. ) (pending before the Legislature as this bill):

“Cannabis employer” means any private employer who is provided a permit, license, or other authorization to operate as a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, clinical registrant, cannabis cultivator, cannabis manufacturer, cannabis wholesaler, cannabis distributor, cannabis retailer, or cannabis delivery service, and who employs workers not subject to the provisions of the National Labor Relations Act (29 U.S.C. s.151 et seq.).

“Cannabis worker” means a worker who is an employee of a cannabis employer and is not subject to the provisions of the National Labor Relations Act (29 U.S.C. s.151 et seq.).

“Majority representative” means an employee organization designated by the State Board of Mediation pursuant to subsection (c) of section 5 of P.L.1968, c.303 (C.34:13A-5.1) to be a representative of a unit of employees of a cannabis employer.

7. This act shall take effect immediately.

STATEMENT

This bill provides cannabis workers employed by cannabis employers rights and protections equal to the rights and protections provided to other workers with respect to employee representation, collective bargaining, and unfair labor practices. Cannabis employers are defined in the bill as employers who are licensed or regulated under chapter 6I of Title 24 of the Revised Statutes.

Currently, certain cannabis workers, most notably those employed by licensed cannabis cultivators, are excluded from protections against unfair labor practices provided to most private sector workers by the federal National Labor Relations Act (29 U.S.C. s.151 et seq.)(“NLRA”), and provided to public employees by the State public employment relations law, P.L.1968, c.303 (C.34:13A-5.1 et seq.)(“PERL”) and the Workplace Democracy Enhancement Act, P.L.2018, c.15 (C.34:13A-5.11 et seq.) (“WDEA”).

This bill brings those cannabis workers under protections similar to those laws, by expanding the responsibilities of the State Board of Mediation in the Department of Labor and Workforce Development regarding cannabis employment not regulated by the NLRA. It provides the board with the power to prevent specified unfair labor practices, thus providing rights to the cannabis workers similar to the rights provided to other private sector workers by the NLRA, and the rights provided to public employees by the PERL and the WDEA.

The bill prohibits cannabis employers and their representatives and agents from the following unfair practices:

1. Interfering with, restraining, or coercing employees in the exercise of the rights granted by the bill.

2. Dominating or interfering with any employee organization.

3. Discriminating against employees for making disclosures or otherwise exercising their rights.

4. Refusing to negotiate in good faith or sign a negotiated agreement.

5. Violating any board regulation.

The bill similarly prohibits cannabis worker organizations and their representatives and agents from the following unfair practices:

1. Interfering with, restraining or coercing employees in the exercise of their rights.

2. Interfering with, restraining, or coercing a cannabis employer in the selection of a representative for negotiations or grievance procedures.

3. Refusing to negotiate in good faith or sign a negotiated agreement.

4. Violating any board regulation.

The board may order an offending party to cease any unfair practice and take reasonable remedial action, including, in the case of a discharge, reinstatement, paying lost wages, costs of action, and damages equal to the wages due. It is also an unfair practice under the bill for a cannabis employer to encourage or discourage employees from joining, forming or assisting an employee organization, or encourage them to end their employee organization membership or revoke authorization of the deduction of dues or fees. The board is required to order the employer to make whole the employee organization for any resulting losses to the organization.

Current law, section 5 of P.L.1968, c.303 (C.34:13A-5.1), directs the New Jersey State Board of Mediation to designate a labor organization to represent employees of any private sector employer not regulated under the NLRA, including an employer who is not a cannabis employer, if the employees select the organization in an election conforming with NLRA procedures, or, if only one labor organization seeks to represent the employees, a majority of the employees sign cards showing that they prefer that organization. The bill provides that in such cases, including cases of non-cannabis employers, the employee organization may petition the board to require the employer to provide a list of current employees with contact information. The bill increases penalties for employer non-compliance from not more than $1,000 to not more than $5,000 per day of non-compliance. Finally, the bill clarifies that the provisions of section 5 of P.L.1968, c.303 (C.34:13A-5.1) concerning private employers not subject to the NLRA apply to employees not subject to the NLRA even if employed by an employer who has both employees not subject to the NLRA and employees who are subject to the NRLA.

The bill provides, with respect to cannabis workers and employers, that if the employee organization petitions the board for that information, then the employer must also give the organization access to the employees, including allowing meetings in the workplace and employer-controlled living quarters. The bill provides that once the organization is designated as the employee representative, the employer must give the organization access to the employer’s premises to investigate and discuss grievances and other issues, conduct meetings, and meet newly hired employees.

The bill gives cannabis worker organizations the right to engage in publicity regarding products produced by an employer with which the organization has a dispute, including publicity asking the public to not patronize businesses distributing or selling the products.