Labor law protects unionized employees from many different forms of retaliation, including having shifts cut or hours reduced. One thing it doesn’t protect against is a business owner simply taking their ball and going home. That’s exactly what former employees of Ponder, a recently closed Central District pot shop, allege the store’s owner did.
Ponder workers filed to form a union in July 2021, winning recognition via a unanimous election on Sept. 14 of the same year. According to a timeline provided by Matt Edgerton, the cannabis division director for the United Food and Commercial Workers 3000 (UFCW 3000), which represents Ponder’s workers, owner John Branch declared his intent to close the business in a response to the union’s initial petition for an election. Per Edgerton’s timeline, Branch told the National Labor Relations Board (NLRB) that the store would close by Dec. 31, 2021.
That response, said Cody Funderburk, a Ponder worker, seemed to be in response to their unionization efforts.
“Well, when we first formed the union is when he started talking about wanting to close the store. The week that we voted to form the union is the week that we heard that Ponder is inevitably going to be closing,” they said.
Branch, reached by phone, refused to discuss anything related to the union, saying it was confidential. As to the reasons for closing the store, he said, “It’s a variety of things: I’ve been doing it that long, the building is for sale.”
In ongoing back-and-forth communications with the union, the closure date changed several times. According to the timeline, it was pushed once to Jan. 21, 2022, and then reverted back to the original Dec. 31, 2021, date.
“We unionized successfully and unanimously just over a year ago now, and John Branch, since that day, has been claiming that he’s going to close the business. ‘Close’ or ‘sell’ — the words changed sometimes,” said Kris Wells, another Ponder worker.
Amirah Ziada Mirziteh, a UFCW 3000 organizer who also worked on the Ponder campaign, said that Branch did actually close the business at some point.
“They’ve been telling us for a year they were going to sell. They’ve closed before and opened up and had to hire everybody back,” she said.
While Ponder’s workers had been working under the guillotine for a while, they said there were some warning signs that the blade might drop.
“He stopped ordering product before the closure until we essentially ran out of product,” Wells said. That said, it was still pretty abrupt.
“The only communication between John Branch and the staff was one email maybe two weeks before this closure, and it doesn’t mention anything about a sale. It basically just says, ‘You’re all terminated, good luck with your lives,’” she said. On June 30, the store ceased operations, leaving its workers scrambling to find replacement work.
Some have been doing work provided by the union, Wells said, while others have gone on unemployment.
“But they shouldn’t have to!” she said. “It’s not the job we signed up for; we signed up to be budtenders.”
While it’s impossible to determine whether closing the store was a union-busting move on Branch’s part, his general conduct towards the union can offer some context. For starters, he’s been busted for busting before.
Shortly after Ponder workers filed their initial petition, Branch reduced the hours and duties of five employees who supported the union, according to Edgerton’s timeline. He later fired three, again mentioning the store’s impending closure in their termination letter, Edgerton said.
“He also kind of targeted union employees in different ways,” said Funderburk, who had been making extra money by writing educational articles for the store’s blog. “Once we formed the union, he laid me off from writing articles.”
In September 2021, the NLRB issued a complaint against Ponder seeking reinstatement of the fired employees and restoration of back wages to six employees it said had had their hours or duties unlawfully reduced. In December of the same year, the NLRB ordered Branch to offer the three fired employees their jobs back and pay back about $40,000 in lost wages.
The union never ended up signing a contract before Branch closed the store.
“Their bargaining proposals were meant to take awhile to work through,” Edgerton said. “Their initial proposals were things that didn’t even apply to the cannabis business. It was like the use of pay phones or the ability to gamble at the work site.”
Edgerton said that they were just getting down to brass tacks — the money stuff — when Branch decided to close the store.
Which is, much to the dismay of the store’s former staff, his prerogative.
However, the workers, their union and local advocates have called for Branch to forfeit his license — still a very valuable piece of paper given the state’s cap on pot shop licenses — which would send it into the pool available to the state’s cannabis social equity program. That program was created in 2020.
“[F]ederal labor law stipulates that employers need to bargain in good faith. So, we feel strongly that this owner needs to either bargain with his workers in good faith or give back his license, enabling equity business owners to access it,” said activist Nikkita Oliver in a Twitter thread urging their followers to write to the Washington State Liquor and Cannabis Board (WSLCB) and elected officials in support of the union.
Oliver, in their thread, argued that a business cannot be closed for more than 30 days without forfeiting its license and suggested that Ponder might be in violation. Julie Graham, a spokesperson for the WSLCB, said Oliver’s characterization isn’t accurate, directing an inquiry to section 314-55-055 of the Washington Administrative Code, which outlines the rules around license forfeiture. Per those rules, a business must remain active for 12 consecutive weeks within a 12-month period, effectively giving Branch nine months after his closing date to complete a transfer.
Apparently, he’s already done that, or at least started the process.
Forbidden Cannabis Club (FCC), a store with locations in eastern Washington and the Olympia area, launched an Instagram page on June 1 for a new Seattle location with the same address as Ponder. As first reported by Capitol Hill Seattle Blog in an article on the end of Ponder earlier this month, FCC has submitted an application to set up a retail cannabis business at the location.
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That’s where things get interesting, at least from a union perspective.
While there aren’t rules governing closure of a business with a unionized workforce, there very much are rules governing the transfer or sale of a business with a unionized workforce. They are, like any product of American bureaucracy, pretty complicated, but the gist of them is that if you buy a union shop and retain the employees (which is called becoming a “Burns successor,” named after a precedent-setting court case), you have to bargain with the union. If you buy a union shop and refuse to retain the employees to avoid becoming a Burns successor, guess what? You still have to negotiate with the union.
If they were just buying the license, they could perhaps argue that there is no successorship, but, per Graham, they’re not just buying the license.
“Licenses can’t be sold. The licensee can sell their business, but the new owner has to have both a business license from Business Licensing Services (BLS) and the cannabis endorsement from the LCB,” she said.
Thus, the new FCC location — whether or not they bought the inventory, the building or anything in it — would be considered a successor business, meaning they’d have to offer to reemploy and negotiate a contract with everyone who lost their jobs when Branch closed Ponder.
What no one knows right now is where FCC stands on all of this, or whether they were even aware of the situation when they bought the business. FCC did not return email or voicemail requests for comment. As of press time, Edgerton said the union had also not been able to get in touch with FCC.
If they are open to working with the union, he said, that’s great. If not, he said, he’d rather see the license put to better use.
“[If] this is a legitimate sale, they’ll have a new banner, a union shop and hopefully a better working relationship with this owner than John Branch,” Edgerton said. “But if not, then this license — even if it means that a union shop is gone — […] needs to go into that [social equity] pool. That’s very much for our social good.”
Read more of the July 27-Aug. 2, 2022 issue.