Updated June 24, 2021 at 7:41 AM ET
The Supreme Court on Wednesday tightened the leash on union representatives and their ability to organize farmworkers in California and elsewhere.
At issue in the case was a California law that allows union organizers to enter farms to speak to workers during nonworking hours — before and after work, as well as during lunch — for a set a number of days each year.
By a 6-3 vote along ideological lines, the court ruled that the law — enacted nearly 50 years ago after a campaign by famed union organizer Cesar Chavez — unconstitutionally appropriates private land by allowing organizers to go on farm property to drum up union support.
"The regulation appropriates a right to physically invade the growers' property," Chief Justice John Roberts wrote for the court's conservative majority. He said that allowing union organizers on private land amounts to an unconstitutional taking of their property without just compensation.
Federal protections for union access to the worksite were first enacted in the 1930s, but farmworkers were excluded from the law, an exclusion that California sought to make up for nearly a half century ago. But after the Supreme Court's decision on Wednesday, California's regulation is, for all practical purposes, gone.
Mario Martinez, general counsel for the United Farmworkers Union, contends that in the 1930s race was the motivating factor in excluding farmworkers from the original federal law protecting union access to the workplace, and now, he says, migrant workers, some of the poorest laborers in the country, are gain being left out.
"You double down on that exclusion and discrimination by saying that a state law that's been in existence for almost 50 years is not respectful of the growers' rights," he said. "But there was no discussion of the workers who are essential workers to feed America. There was no discussion of their rights at all."
Other union leaders echoed that sentiment. Nicole Berner, general counsel for the Service Employees International Union, says if workers learned anything during the pandemic, it was that they needed a union to defend their rights.
"Farmworkers kept working to keep food on all our tables," she observes, adding that now, because of Wednesday's Supreme Court decision, these workers "face even greater obstacles in their efforts to improve their working conditions."
But Joshua Thompson, of the Pacific Legal foundation, which represented the growers, was elated by the court's ruling. "When property rights are infringed by denying farmers the right to choose who can come and cannot come onto their property, the constitution demands that the government pay for that right," he said.
Thompson noted, accurately, that some of the protections for union organizers' access enacted into federal law in the 1930s have been eroded by the Supreme Court over time.
But court's decision on Wednesday was only the latest in a series of decisions over the past 16 years that have aimed directly at the heart of organized labor in the United States. In 2018, for instance, the court hamstrung public-sector unions' efforts to raise money for collective bargaining. In that decision, the court by a 5-4 vote overturned a 40-year precedent that had allowed unions to collect limited "fair share" fees from workers not in the union but who benefited from the terms of the contract that the union negotiated.
The case decided by the court on Wednesday began in 2015 at Cedar Point Nursery, near the Oregon border. The nursery's owner, Mike Fahner, said union organizers entered the farm at 5 one morning, without the required notice, and began harassing his workers with bullhorns. The union countered that the people with bullhorns were striking workers, not union organizers.
When Cedar Point filed a complaint with the California Agricultural Labor Relations Board, the board found no illegal behavior and dismissed the complaint. Cedar Point, joined by another California grower, appealed all the way to the Supreme Court, arguing they should be able to exclude organizers from their farms. On Wednesday, they won in the Supreme Court.
Katherine Stone, a law professor at UCLA who studies labor law, says she is concerned about what will replace union organizing in California after Wednesday's decision. "Whether we're going to have a whole new era of labor warfare is an open question," she noted. "If you don't have orderly mechanisms to deal with worker organizing and to deal with collection action of workers, then you get disorderly mechanisms."
Justice Stephen Breyer wrote the dissent in Wednesday's case for the court's three liberals, He said the access in the case was "temporary" and so did not constitute a "taking" under the law.
The California regulation, he wrote, is "not functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain."
The court's decision could be extremely problematic for unions in general, but especially those that represent low-income workers. The growers asserted that unions should have no problem organizing workers in the era of the internet. But the union maintains that many of the workers at Cedar Point don't own smartphones and don't have internet access. What's more, many don't speak English or are illiterate and live scattered throughout the area, in motels, in labor camps or with friends and family, often moving after just a few weeks when the seasonal harvest is over.
According to Matt Ginsburg, associate general counsel for the AFL-CIO, "the court failed to appreciate the specific circumstances that farmworkers face." "They're seasonal workers," he said, "who move from place to place, and that's specifically what this regulation was tailored to address."
"The agricultural industry has one of the nation's highest percentages of hired child labor, undocumented work, human trafficking, and workplace injury and fatality, including deaths from COVID-19," said law professor Beth Lyon, who directs Cornell's Farmworker Legal Assistance Clinic. The court placed "another obstacle in the way of an extremely vulnerable American workforce," she said.
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