By DON McINTOSH
United Food and Commercial Workers Local 555 announced May 22 that it’s launching a recall campaign against State Representative Paul Holvey (D-Eugene) after he declined to help its priority legislation this year.
Local 555 was pushing lawmakers to pass HB 3183, which would require cannabis companies to sign “labor peace agreements.” Under the agreements, cannabis employers would pledge to remain neutral when union organizers communicate with workers — in return for the union pledging to refrain from strikes, boycotts or other economic pressure to resolve any labor dispute. If the bill passed, cannabis companies would have to sign such an agreement with a union in order to receive or renew a license from the state. The bill was sponsored by state representatives Ben Bowman (D-Salem) and Dacia Grayber (D-Tigard) and state senator Chris Gorsek (D-Gresham) at Local 555’s request. Similar requirements have passed in California, New Jersey, New York, Rhode Island, and Connecticut, intended to encourage unionization.
But after a short hearing May 11, Rules Committee chair Julie Fahey (D-West Eugene) announced that she’s killing the bill: “I will say given that our own lawyers are saying it’s likely preempted by federal law, I think it would be irresponsible for us to move this bill forward, so it’s not moving forward this session.”
As chair, Fahey decides whether bills assigned to her committee will get a vote.
The bill had earlier gone to the House Business and Labor Committee, chaired by Paul Holvey (D-Eugene). As a journeyman carpenter and retired Carpenters union rep, Holvey has long been considered one of labor’s best friends in the Capitol, and has earned the Oregon AFL-CIO’s highest ratings, including being designated “legislator of the year” in 2015. Holvey had misgivings about the bill, and referred it to the House Rules Committee without recommending passage.
Holvey also asked the legislature’s attorneys to look into several questions about the bill: Is it pre-empted by the National Labor Relations Act (NLRA), and does the state have the authority to dictate terms between private sector businesses and unions?
Yes, it’s pre-empted, and no, the state doesn’t have that authority, was the response of the Legislative Counsel’s office. According to a seven-page memo dated April 13, requiring cannabis business to enter into a labor peace agreement with a labor organization, “arguably interferes with the rights of employees to select a representative of their own choosing,” infringes on an employer’s ability to express its views, and removes a labor organization’s ability to engage in activities like striking that are protected by the NLRA. The memo goes on to say states may require labor peace agreements on private enterprises only when the state is acting as a “market participant” and has an economic or proprietary interest in the business, but that here, neither is the case.
NLRA is the federal law that lays out how private sector workers unionize, and the U.S. Supreme Court has ruled that it pre-empts state laws on the same subject; in other words, states can’t pass laws that add or subtract from the provisions laid out in the NLRA. [An exception has been for workers that aren’t covered by the NLRA, such as public employees, farm workers, and domestic workers.]
In an April 20 letter to Fahey on behalf of UFCW Local 555, attorney Andrew Toney-Noland said the legislature’s attorneys got it wrong. Requiring cannabis businesses to sign a labor peace agreement with a union “does not establish the employer’s recognition of a single union in any way,” Toney-Nolan wrote; it “merely provides a stable environment for the open competition of unions for majority support and recognition/certification.” Toney-Noland said the question of pre-emption is up to the courts to decide, not the legislature. And nearly identical and in some cases more stringent versions of the law have been in effect for several years in California, New York, and New Jersey, Andrew Toney-Noland wrote, and there haven’t been any substantive challenges.
California has had such a requirement since 2018: Licensees with 20 or more employees must sign a labor peace agreement that prohibits the union from picketing, striking or boycotting, requires the employer to give access to employees, and prohibits the employer from disrupting efforts to unionize.
Currently retail cannabis workers do have the right to unionize under the National Labor Relations Act (growers arguably may not because the federal law doesn’t cover agricultural workers). But very few cannabis workers in Oregon have tried to unionize. Local 555 has tried to organize cannabis businesses since 2015, and today just two dispensaries are union — Space Buds and Flower of Life in Eugene.
Contacted by the Labor Press, Fahey and Holvey were unavailable for interviews, but their staff emailed statements saying they were concerned that the bill would be preempted.
“Oregon workers are calling for the removal of Representative Holvey after his repeated attacks on their livelihoods,” said Local 555 president Dan Clay in a press statement announcing the recall. “He has shown that his allegiance lies with large corporations, not with Oregonians.”
Besides Holvey’s non-support for its cannabis bill, Local 555 cited his 2019 vote to trim public employee retirement benefits, and his failure to help enact legislation proposed by Local 555 that would guarantee grocery workers workers comp benefits if they contracted COVID.