SCOTUS Overturns California Farm Unionization Access Rights

Jess Bravin for WSJ (“Supreme Court Rules Against Union Organizers’ Access to California Farms“):

he Supreme Court struck down a California regulation granting union organizers access to farmworkers on agricultural fields, ruling Wednesday that the 1975 measure violated growers’ private-property rights.

The decision, by a 6-3 vote along the court’s conservative-liberal divide, erases a major victory that Cesar Chavez’s farmworker movement achieved in the 1970s, when they argued the nature of agricultural labor made it too difficult to reach workers outside the fields.

The decision reinforces the high court’s commitment to private-property rights, which conservative members have viewed as under threat from overreaching regulations intended to protect environmental, recreational and, in this case, labor interests over the objection of property owners.

California adopted the access regulation in 1975 to implement the state Agricultural Labor Relations Act, which granted collective-bargaining rights to farmworkers excluded from union-organizing protection that other employees enjoy under the National Labor Relations Act.

Under the NLRA, in some circumstances when they otherwise are cut off from workers, organizers can obtain orders allowing them limited entry to employer property. The California Agricultural Labor Relations Board’s regulation grants similar access to farm property for union organizers, but rather than operating case by case the state regulation provides organizers with blanket authorization for limited periods to meet with workers on employer property during nonwork hours, as long as notice is given and other conditions are met.

The agricultural labor board reasoned that such access would generally be required to educate farmworkers about their rights, since field hands, who frequently relocate to follow the seasons of various crops, often are poor, lack basic education and can’t be reached through methods typical in other industries, such as standing outside factory gates or in front of office buildings.

While Cesar Chavez and his United Farm Workers union viewed the access regulation as essential for organizing, growers immediately challenged it as violating their property rights. The California Supreme Court upheld the regulation, however, and in 1976 the U.S. Supreme Court declined to take an appeal.

Two growers that have fought the UFW, Cedar Point Nursery, which raises strawberry plants in Dorris, Calif., and Fresno-based Fowler Packing Co., a major citrus and table-grape producer, brought a renewed challenge. They argued that the regulation, which allows organizers to enter their property to meet with workers during lunch hour and for one hour before and after their shifts, is a relic of the pre-digital era. Unions nowadays can organize through other means, they say, such as social media, text messages and off-site encounters.

Adam Liptak of NYT (“Supreme Court Rules Against Union Recruiting on California Farms“) adds:

Chief Justice John G. Roberts Jr., writing for the majority, wrote that “the access regulation grants labor organizations a right to invade the growers’ property.” That meant, he wrote, that it was a taking of private property without just compensation.

[…]

The state regulation, issued in 1975 and unique in the nation, allows union organizers to meet with agricultural workers at work sites in the hour before and after work and during lunch breaks for as many as 120 days a year. The regulation’s drafters said this was the only practical way to give farmworkers, who can be nomadic and poorly educated, a realistic chance to consider joining a union.

[…]

The court has in recent years dealt blows to public unions and limited the ability of workers to band together to take legal action over workplace issues. At the same time, the court has been protective of property rights.

In 1956, the Supreme Court has said a federal labor law, one that excludes agricultural workers, may allow union organizers to enter private property in limited circumstances. “If the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them,” Justice Stanley Reed wrote for the court, “the employer must allow the union to approach his employees on his property.”

Later precedents pointed in opposite directions. In 1982, the court ruled that requiring landlords to allow cable television companies access to their property was a per se taking of property requiring compensation, even if minimal. But in 1980, it ruled that a California Supreme Court decision that allowed high school students to gather petitions at a private shopping mall did not amount to a taking of the mall’s property.

As a general principle, the notion that allowing union organizers the only practical access to farm workers amounts to the “taking” of the owner’s property strikes me as overreach. But the extensiveness of the California law is absurd. Up to three hours a day for up to 120 days?! That’s excessive.

I’m quite sympathetic to the growers’ argument that modern communications undermine the original argument for this access. (Then again, it’s likely still incredibly hard to organize a huge, non-English speaking workforce of dubious legal status anywhere else.) But it seems unreasonable to rule a bill written twenty years before widespread Internet access unconstitutional because technology subsequently changed. Regardless, the basis of the 1956 precedent has arguably been obviated.

Finally, while there have been relatively few precedents compared to other areas of the law, the state of “takings” doctrine strikes me as a hot mess. It’s simply impossible for a legislator or other policymaker to know in advance what restrictions and regulations qualify.

FILED UNDER: Economics and Business, Law and the Courts, Supreme Court, U.S. Constitution
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    It’s no surprise that the Republicans on the court voted against unions. Republicans talk about the free market all the time, but their overriding hatred of unions puts the lie to that.

    An honest Republican would ask themselves why their fellow party members actively despise the one thing that allows workers to gain leverage in a market economy. To me, the answer is obvious, but I would love to hear honest alternatives.

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  2. James Joyner says:

    @MarkedMan: Conservatives tend to think of unions in the same way liberals think of cartels, as collusion against free markets rather than a balancing of the scales. But I think this is simply what it purports to be: a defense of property rights above just about every other freedom.

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  3. HarvardLaw92 says:

    @James Joyner:

    I’m inclined to agree. Roberts pet peeve has been property rights infringement since the Reagan administration, probably longer. The ruling was both expected and IMO unsurprising.

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  4. Kurtz says:

    @James Joyner:

    But I think this is simply what it purports to be: a defense of property rights above just about every other freedom.

    We see the effects of this incongruity a lot these days.

    3
  5. MarkedMan says:

    @James Joyner: I think you are being way too generous here. This isn’t about exalting property rights. The workers live on this land during farming season. Saying that the anti-union bosses can dictate who can visit the workers where they live is an absurd elevation of property rights, and wouldn’t hold up in any other circumstances. Do you really think the Supreme Court would uphold the right of apartment building owners to pick and choose who the tenants are allowed to see? The difference here is the fact that it is union reps who want to see these workers. Republicans detest unions and will do almost anything to destroy them.

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  6. William Clifton says:

    @MarkedMan: The one edge workers have is talent, but with that there’s no need for unions. Unions have turned into a racket for the most part, especially the teachers unions.

  7. Kurtz says:

    @MarkedMan:

    Do you really think the Supreme Court would uphold the right of apartment building owners to pick and choose who the tenants are allowed to see?

    There are plenty of landlords who restrict how visitation works among their tenants. I agree with you on principles, but I think we are underselling how much some of these things are widespread practice in different domains already.

    Smart home devices may be introducing some new thorny issues into the landlord-tenant relationship as well.

    To some people, public good is defined only by whether enough money can be made doing it. And a lot of those people who believe that are getting screwed by that rigidity.

    1
  8. Kathy says:

    What’s the property, the land or the workers?

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  9. Modulo Myself says:

    @MarkedMan:

    Apartment owners have tons of power over who is allowed in a building. You can’t just bring in a pet or a roommate.

    Overall, I think Republicans and many Democrats view private property as a natural right and think of everything else as an unnatural deviation from the truth. To be tolerated, perhaps, but not exactly part of the divine order.

  10. DrDaveT says:

    @Modulo Myself:

    Apartment owners have tons of power over who is allowed in a building. You can’t just bring in a pet or a roommate.

    There is an unsubtle distinction between “guest” and “resident”. Your landlord cannot forbid you to invite union organizers in for tea.

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  11. Modulo Myself says:

    @DrDaveT:

    I’m not a lawyer, so I’m just guessing that a lease could limit who tenants can invite over.

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  12. Gustopher says:

    If this is a “taking,” then how are zoning regulations not?

  13. Mu Yixiao says:

    @DrDaveT:

    There is an unsubtle distinction between “guest” and “resident”. Your landlord cannot forbid you to invite union organizers in for tea.

    Here’s the issue with that: In a number of cases, the workers did not invite the unions. In some cases they actively rejected the unions, in at least one other, there was a vote–which has remained secret because the government impounded the votes “to investigate”. There have been several cases of the union coming onto farmers’ land and harassing the workers. The farmers tried to keep the uninvited union members off their land, and were told by the government that they couldn’t.

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  14. Modulo Myself says:

    @Gustopher:

    Who do you think benefits from zoning regulations?

  15. Gustopher says:

    @DrDaveT:

    Your landlord cannot forbid you to invite union organizers in for tea.

    But, your landlord can forbid your guest from entering uninvited, or knocking on the door of every other apartment to speak to every tenant.

    I don’t think the apartment analogy quite works. This would be like requiring a landlord to let door to door salesmen into the building. Or inside a gated community.

    The tricky part is that in this analogy, the tenants all work inside the building and rarely leave and seldom have cell phones because they are dirt poor. There’s no other way to contact them.

    I wonder how the Roberts court would rule if it was a missionary rather than a union organizer.

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  16. gVOR08 says:

    The real issue here, as any number of pundits have noted, is how big a truck the conservative justices are going to drive through ‘takings”. Are OSHA inspections under threat? Restaurant health inspections?

  17. Kurtz says:

    @DrDaveT:

    There is an unsubtle distinction between “guest” and “resident”. Your landlord cannot forbid you to invite union organizers in for tea.

    Unsubtle contractually, well maybe. Definitely less clear in reality, no? Even contractually it’s a little fuzzy. If a resident has a significant other who maintains a separate residence, but often stays overnight with the tenant, at what point does the SO become a resident?

    Sometimes, there is a clause in the lease, “if a person stays more than x consecutive days, they must _____.” Often that requires a fee for a background check or whatever. Those clauses also are strange, because if they stay away for a night, does the clock restart? What if my parents visit for two weeks?

    Another example: I lived in a condo with a girlfriend and we were night owls–restaurant business, so most of our circle of friends consisted of service industry people. Well, guests had to have a parking pass that needed to be obtained the day they visited. But the office was only open until five. A frequent guest of ours had his car towed at his expense a couple times, because of that stupidity.

    Now, of course, this was an HOA situation rather than lessor-lessee, but to me, these fall under the rubric of issues with how housing works in the US. People’s day-to-day behavior is increasingly governed less by formal government and more by their employers and neighbors.

  18. Kurtz says:

    @Mu Yixiao:

    You have a link for that information?

  19. James Joyner says:

    @Gustopher:

    If this is a “taking,” then how are zoning regulations not?

    If the restrictions existed at the time the property was purchased, they’re not. But a change that radically impacts the value of the property may well be a taking and require compensation.

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  20. Mu Yixiao says:

    @Kurtz:

    I can only put a couple links in without getting thrown in the moderation slammer. 🙂

    Capital Press

    Hanford Sentinel

    Google: UFW harassing workers decertify

  21. Mister Bluster says:

    @Mu Yixiao:..Capital Press

    When I click on the link provided I get a message that I have reached the limit of free views for the month. I am offered a daily pass for $2 or something else for $4.
    I am certain that I have never attempted to link to this publication ever.

  22. Mu Yixiao says:

    @Mister Bluster:

    Hmm… It let me view the article. But then I have script blockers and ad blockers and cookie blockers.

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  23. Kurtz says:
  24. Mister Bluster says:

    @Kurtz:..Here
    Got it. Thank you.

  25. Kurtz says:

    @Mu Yixiao:

    Unless it’s a subsidiary, that company wasn’t a petitioner in this lawsuit

  26. Mu Yixiao says:

    @Kurtz:

    I wasn’t implying that they were. I was talking about UFW behavior in general, and why it’s not always analogous to “coming over for tea”.

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  27. Kurtz says:

    @Mu Yixiao:

    Highlighting a handful of incidents over the course of decades to describe UFW “behavior in general” is disingenuous.

    I’m still digging through various related briefs, but from what I can tell, even conceding that the regulation constitutes a taking, I can’t find any suggestion of what “just compensation” would be in the context of an easement limited to the location on the property specific to where workers gather the one hour before and after work and where the workers eat lunch, and limited to those times. And it limits the number of union representatives that can visit according to the number of workers.

    It was alleged in the respondent’s brief opposing certiorari that the petitioners never enumerated any economic harm. Scanning the petitioner response, that doesn’t appear to be answered at all. Rather it appears the goal was never to receive compensation, rather it is solely about an expansion of property rights as if they needed any more protection.

  28. Mu Yixiao says:

    @Kurtz:

    Highlighting a handful of incidents over the course of decades to describe UFW “behavior in general” is disingenuous.

    They’re called “examples”.

    It was alleged in the respondent’s brief opposing certiorari that the petitioners never enumerated any economic harm.

    You’re stuck on this one case. Look up other situations. I linked to two–including one written by a former UFW employee who left the union and joined the workers in their protests.

    From the other article:

    UFW won an election at Gerawan in 1990. Five years later, workers rebuffed UFW-negotiated contracts. Gerawan contends the union abandoned the workers for more than 17 years. UFW reappeared in 2012 when a new state mandatory mediation law allowed the union to impose a contract. Workers didn’t like that and chose the decertification election.

    Workers at Gerawan Farms, in Fresno, voted 1,098 to 197, a 5-to-1 margin, in favor of decertifying the union as their representative, according to a Sept. 18 count by the state Agricultural Labor Relations Board. Another 635 disputed ballots were not counted.

    The election was Nov. 5, 2013, but ALRB impounded the ballots at UFW’s request, concluding that it was “impossible to know” whether the workers’ request for an election represented their “true sentiments” when it came time to vote and alleging Gerawan manipulated the vote.

    On Sept. 11, 2018, the California Supreme Court upheld a lower court order to count the ballots, rejecting arguments by UFW and the ALRB. It is one of the largest union decertification elections in California agricultural labor history.

    5:1 against the union. Yeah… That’s kinda close. We really can’t be sure what the workers really wanted.

    While you seem to be thinking that the farmers are evil slave-holders denying freedom to their workers…

    1) There is absolutely nothing preventing the union from setting up on the road outside the farm and doing all the recruitment they want. If the workers can work a day on the farm, they can walk to the road.

    2) California law allows the unions on the farm 3 hours per day for 120 days. 120 days is pretty much the entire growing season–including weekends. And 3 hours per day is almost half the work day. Would you be okay with the AFL-CIO coming into your workplace every working day from May 1 to October 30 (excluding holidays) and attempting to recruit the employees from 09:00-12:00? Even if the employees don’t want it? Even if they have voted 5:1 to oppose it?

    I have been a member of 3 unions. One served me well while making sure I was qualified to do my job. One was a formality. One threw me under the bus.

    I have worked with over 100 locals of umpteen national unions in the US and Canada–primarily IATSE, IBEW, and Teamsters–everywhere from NYC, Chicago, and Cleveland, to tiny little towns you’ve never heard of.

    I 100% support the right of any and all workers to unionize. I also 100% support the right of any and all workers to reject unions. I 100% oppose “union shops”–every worker should get to decide if they want to join or not, and they should be able to change that decision with reasonable regularity.

    There’s a reason that less than 5% of American workers are members of a union. And I’ve seen that reason–first hand and up close–repeatedly. Unions care about the union.

    My perfect example is IATSE Local 22–Washington DC.

    I was a roadie for a major tour that had a week-long stop in DC. 8-show week (they’re normally 7) For performances, I had a crew of 8. One guy (we’ll call him #6). First show is Tuesday. He’s drunk. I tell the steward who promises it won’t happen again. Wednesday he’s sober. Thursday he’s drunk. I tell the steward that if this man shows up on my crew again I will sit him in a corner and the audience will notice that something is missing. Friday I get a new guy–and on Saturday get bitched out by one of my fellow roadies, because they just re-assigned #6 to his department, and he showed up drunk for an 8am call.

    Ask me about the venue steward in Chicago who walked with a cane because he “{ahem}… “had an accident”.” Ask me about the 2-hour, 4-hand call we had in Pittsburgh that required us to pay 8 hands for 8 hours (and even with everything we could toss at them, they only did 3 hours of work, and then left). Ask me about the crew in Ontario that wouldn’t move crates because they were 6″ on the other side of the threshold–and that’s a different department.

    Ask me about the union rep who stood in front of staff from American Airlines and said “No… he wasn’t jacking off while looking at the flight attendant through the window… he hit his thumb and was rubbing it to ease the pain.”

    30 years of experience with hundreds of unions throughout the US and Canada: I am never going to give the union the benefit of the doubt.

    And, perversely, I hope that all of silicon valley unionizes–so all of these socialist kids get an education in exactly what “collective bargaining” does, and does not, mean.

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  29. Just nutha ignint cracker says:

    “They’re called ‘examples’.”

    And sometimes, they’re called “cherry picking.” Were talking about a period of time that started when I was 13 or 14. I’ll be 69 in a month.

  30. Kurtz says:

    @Mu Yixiao:

    Notice that I didn’t make any points other than:

    Positions related to this case, specifically; and

    That pointing to two, check that, posted two links, both about the same instance of poor behavior on the part of a union somehow means unions are all bad. (I don’t need the blockquote, I read your links.)

    I am never going to give the union the benefit of the doubt.

    I didn’t give anyone the benefit of the doubt to anyone here, by the way. Really, this one line just reveals your bias more than it does anything else.

    But if you want to talk about unions and incentive structures in partisan politics or worker collectivization and economic inequality, we can.

    But if the data shows a net benefit from unions, are you going to change your view? Or are you going to let your anecdotes and personal experience outweigh careful examination? Which is a more Reasonable approach in your opinion?

    I may be a jerk more often than I should be. But at the same time, I evaluate things as objectively as possible and will gladly concede a well crafted argument even if it means I have to check my priors. But that’s not what this is.

    “Unions only care about unions” can easily be written “______ only care about ______” and be true. Why you think this is some silver bullet against one form of collective action but not others is lost on me.

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  31. Mu Yixiao says:

    @Kurtz:

    But if the data shows a net benefit from unions, are you going to change your view? Or are you going to let your anecdotes and personal experience outweigh careful examination?

    “Net data” shows that union membership peaked around 1955 at about 35%. It has been on a steady decline ever since (it’s less than 11% currently).

    If unions are beneficial to the workers, then workers would be unionized. Right? Federal (and often state) law absolutely protects the right of workers to unionize. And yet… almost 90% of the workforce doesn’t see a “net benefit” from union representation.

    Those are facts.

    My anecdotes simply help to explain why.

  32. Kurtz says:

    @Mu Yixiao:

    If unions are beneficial to the workers, then workers would be unionized. Right? Federal (and often state) law absolutely protects the right of workers to unionize. And yet… almost 90% of the workforce doesn’t see a “net benefit” from union representation.

    Oh please. Let’s not act like the reason union membership drop has to do with the choice of workers rather than the steady drumbeat of propaganda tying it to communism as well as organized crime and the bevy of state laws and court decisions that strangled them.

    You cherry pick data and use anecdotes simply because they support your position at the expense of rigor. This instance of using a data point without exploring alternative causes for the trend is particularly damning.