This National Labor Relations Board (NLRB) decision addresses the Employer's Request for Review of the Regional Director's Decision and Direction of Election. The core issue is whether certain employees of BeLeaf Medical, LLC, classified as "Post-Harvest employees," are "agricultural laborers" exempt from the National Labor Relations Act (NLRA), or statutory employees covered by the Act.

The Employer, BeLeaf Medical, LLC, operates a vertically integrated cannabis business with cultivation facilities and dispensaries. The Petitioner, United Food & Commercial Workers Local 655, sought to represent Packaging, Lab/Kitchen, and Fulfillment employees. The Employer contended that the Packaging employees, whom it referred to as Harvest Technicians and Post-Harvest Technicians, were agricultural workers exempt from the NLRA. The Petitioner, while acknowledging the job titles could be "Post Harvest Technician," "Post Harvest Lead," "Post Harvest Trim Lead," and "Post Harvest METRC Specialist," argued these employees were not agricultural laborers and were covered by the NLRA. These Post-Harvest employees constituted a significant portion of the petitioned-for employees.

The NLRB, in its Order, denied the Employer's Request for Review, finding that it raised no substantial issues warranting review. This decision adopted the reasoning of the Regional Director's Decision and Direction of Election.

Administrative Law Judge (ALJ) Decision:

The attached appendix details the Regional Director's Decision and Direction of Election, which served as the basis for the NLRB's denial of review.

The Regional Director conducted a hearing and reviewed evidence and briefs from both parties. The Employer's operations included cultivation, harvest, post-harvest processing, kitchen operations for infusions, and fulfillment. The Post-Harvest team, comprising 13 employees across four classifications (Technicians, Leads, Trim Lead, and METRC Specialist), performed tasks after the initial harvest. These tasks included taking down dried plants, destemming, bucking (removing buds from branches), trimming using a machine called a Mobius, curing, and finally, packaging into various gram sizes or creating preroll joints. The Post-Harvest METRC Specialist was primarily responsible for weighing and tagging the product for compliance with Missouri's tracking and tracing regulations, spending a significant amount of time on a computer for data entry.

The applicable legal standard involved Section 2(3) of the NLRA, which excludes "agricultural laborers," and the Congressional directive to use the definition of agriculture from Section 3(f) of the Fair Labor Standards Act (FLSA). This definition includes farming in all its branches, production, cultivation, and harvesting, as well as practices performed "as an incident to or in conjunction with such farming operations." The analysis distinguished between the "primary meaning" and the "broader, secondary meaning" of agriculture.

Department of Labor (DOL) regulations provided guidance, emphasizing that secondary agricultural activities must be an established part of agriculture, subordinate to farming, and not an independent business. Key factors for determination included whether a practice substantially changed the physical or chemical properties of the product, moving it from its "raw and natural state" towards manufacturing. The determination was fact-intensive, case-by-case, and applied classification-by-classification.

The Regional Director placed the burden of proving agricultural status on the Employer. The Employer did not argue that the Post-Harvest employees were engaged in primary agricultural activities but focused on the secondary definition.

Legal Analysis of the Regional Director's Decision (Adopted by the NLRB):

The Regional Director analyzed each classification within the Post-Harvest group:

• Post-Harvest Technicians: The Regional Director found these employees were statutory employees. The Post-Harvest department was not wholly subordinate to farming, operated as a separate department with distinct responsibilities and physical separation, and was a substantial operation in its own right. The processes of destemming, bucking, and trimming, while transformative, were considered more akin to manufacturing than traditional agriculture when compared to the handling of tobacco, which has been held to be outside the FLSA agricultural exemption due to substantial physical transformation. The curing process was considered a borderline factor. Critically, the prerolling and packaging activities were deemed clearly non-agricultural, constituting a mechanized, factory-like process that added value and could be an independent business. These activities were also considered preparation for sale rather than preparation for market, distinguishing them from activities like fruit packing. The substantial amount of time spent on these non-agricultural tasks meant the employees fell outside the agricultural exemption.

• Post-Harvest Leads and Post-Harvest Trim Leads: For similar reasons, these Leads were found to be statutory employees. They worked alongside Technicians, engaged in trimming, packaging, and prerolling, and the Post-Harvest Lead in packaging maintained detailed logs. The Post-Harvest Lead's potential to fill in for the METRC Specialist further supported their inclusion as statutory employees.

• Post-Harvest METRC Specialists: This role was also found to be non-agricultural. The majority of their time was spent on administrative tasks, weighing, and computer data entry to comply with Missouri's tracking and tracing regulations. Such administrative logging for regulatory compliance was not considered incidental to or in conjunction with agriculture.

In conclusion, the Regional Director determined that the Employer's Post-Harvest production process was not a mere preparation for market but a utilization of industrialized processes to transform marijuana from its natural state into finished products prepared for sale. Therefore, these employees were statutory employees and not exempted agricultural laborers, making the petitioned-for unit appropriate.

Member Mayer's Concurrence:

Member Mayer concurred with the denial of review, agreeing that the Post-Harvest employees did not fall within the FLSA Section 3(f) agricultural exemption. He emphasized that the distinction between agricultural laborers and statutory employees is inherently fact-intensive and requires a case-by-case inquiry, acknowledging the nuanced exercise of determining activities performed "as an incident to or in conjunction with" farming. He highlighted that this approach is crucial for emerging industries with evolving operational processes.

Significant Cases Cited:

• BeLeaf Medical, LLC and United Food & Commercial Workers Local 655, 374 NLRB No. 100 (2026): The primary decision of the National Labor Relations Board denying the employer's request for review.
• Mitchell v. Budd, 350 U.S. 473 (1956): The Supreme Court held that workers engaged in the transformative “bulking” of harvested tobacco were not exempt agricultural laborers.
• Maneja v. Waialua Agricultural Co., 349 U.S. 254 (1954): The Supreme Court found that employees engaged in milling harvested sugar were covered by the Act based on an examination of all facts, indicating a change from the raw and natural state akin to manufacturing.
• Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755 (1949): This case established the two distinct branches of the FLSA agriculture definition: the primary meaning and the broader meaning encompassing incidents to farming.
• Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996): The Supreme Court reiterated that the line between secondary agricultural activity and nonagricultural activity is not susceptible to precise definition, quoting Department of Labor regulations.

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