In a case involving an interesting intersection of states’ rights, federal law, and state bar legal ethics rules, the NLRB had scheduled a representation case hearing with the Compassionate Care Foundation, a medical marijuana dispensary in southern New Jersey, and a UFCW local, which had filed a petition to represent employees of the dispensary. The NLRB expressly and strongly encouraged the dispensary to retain counsel to defend itself against alleged labor law violations, but the dispensary could not. According to the dispensary, the attorneys it contacted believed that state bar rules of professional conduct prohibited them from assisting a client in activity that the attorney knows is “criminal or fraudulent.” Medical marijuana is legal and regulated under New Jersey state law, but it is illegal under federal criminal law.

The owner of Compassionate Care was not happy that the federal government (through the NLRB) was holding the dispensary subject to federal labor law while federal criminal law prohibited the marijuana business altogether. According to one news report, he said of the controversy, “I don’t think the federal government should be able to enforce the issue without taking a responsible position to [sic] medical marijuana. . . . If there is harm being done they should close the door on [medical marijuana]. They shouldn’t have this conflict between state and federal law because it is wreaking havoc on good meaning [sic] people.”

The whole case and all of its fascinating legal issues became moot on Income Tax Day, when the union dismissed its NLRB petition. The withdrawal deprived the Board of jurisdiction, and marijuana business owners, as well as their would-be legal counsel, will have to wait for further guidance.

"Joint” employers aside, employers continue to wait for answers from the NLRB on the “joint employer” questions at issue in the Browning-Ferris and McDonald’s cases.