By Greg Stohr
For almost a half century, labor organizers in California have had a unusual right: Under a state regulation, they can walk onto the premises of an agricultural business and recruit workers to join a union.
The regulation is now before the U.S. Supreme Court in a case that critics are looking to turn into a blockbuster decision strengthening property rights and curbing regulatory power. The court will hear arguments Monday on a constitutional challenge to a 1975 rule that grew out of the efforts of Cesar Chavez to give farm workers collective bargaining rights.
Conservative legal groups and the U.S. Chamber of Commerce are opposing the access regulation, and trying to leverage a court that in recent years has bolstered the rights of landowners and curbed the clout of unions. It will be the first case on those topics for Justice Amy Coney Barrett, whose confirmation in October gave the court an even stronger conservative majority.
The case was filed by two businesses that have tangled with union organizers: Cedar Point Nursery, which grows strawberry plants in the northern California town of Dorris, and Fowler Packing Co., a Fresno grower of grapes and other fruits.
They say the regulation strips agricultural companies of their right to control who comes onto their property and forces them to allow disruptive protests. The growers are represented by the Pacific Legal Foundation, an advocacy group that fights what it views as government overreach.
“The aim of the access regulation isn’t to set up a table and inform,” said Joshua Thompson, a foundation lawyer who will argue against the rule on Monday. “It’s to intimidate, and that’s exactly what they tried to do to both of our clients.”
The regulation implements California’s Agriculture Labor Relations Act, a 1975 law that gave farm workers in that state the type of collective bargaining rights other laborers already had under federal law.
The access regulation, however, goes beyond federal law, saying a specified number of union organizers can be on farm property during non-work hours for three hours a day, as much as 120 days a year.
The provision is “absolutely critical” for ensuring that workers understand their rights, said Victoria Hassid, chair of the California Agricultural Labor Relations Board, which issued the regulation.
“A key component of the act is ensuring that workers are able to, if they choose, advocate to work together to fight for better working conditions,” Hassid said in an interview. “This really fundamentally is about being able to know that those rights exist.”
The question at the Supreme Court is whether the access regulation violates the constitutional provision that requires “just compensation” when the government takes private property for public purposes. A San Francisco-based federal appeals court upheld the regulation.
The growers say the constitutional clause automatically kicks in whenever a regulation takes an “easement” -- that is, when the government gives someone else the right to use private property. That bright-line approach “protects the fundamental right of property owners to exclude trespassers from their property,” the companies said in a court filing.
The growers compare their case to a 1982 Supreme Court ruling that said New York was taking private property by requiring landlords to allow the installation of cable-television equipment in their buildings.
But 17 states and the District of Columbia said the categorical approach would mean a “sea change,” and raise questions about a “staggering array” of laws that rely on government inspections of private property for health and safety reasons.
The growers and their allies say those inspection laws wouldn’t be affected. The Chamber of Commerce said the government would still be able to require health and safety inspections as a condition for getting a needed license.
The Biden administration is backing the California regulation but won’t be arguing Monday. In a two-page letter in February, acting U.S. Solicitor General Elizabeth Prelogar said the government’s longstanding view is that “physical entry on property short of a permanent occupation does not warrant the application of a categorical rule and is instead appropriately analyzed under a case-specific framework.”
Prelogar’s letter was a change of position for the government after the Trump administration filed a brief opposing the regulation.
Worker advocates say the California access regulation is even more important than it was in 1975 for informing vulnerable farm laborers of their rights. Those workers as a group are less educated, less likely to speak English, and more likely to be immigrants now than when the regulation was enacted, said Mario Martinez, who filed a brief defending the regulation for the United Farm Workers of America.
“Outside of employers where there’s a collective bargaining agreement, you have routine violations of basic minimum wage laws, overtime laws, health and safety laws,” Martinez said. “You have rampant wage theft. You have a crisis of sexual harassment. In some cases, we uncovered forced labor, slavery where workers are being held against their will.”
But Mike Fahner, whose Cedar Point Nursery is at the center of the case, says the regulation no longer makes sense in the age of social media. Fahner sued after organizers came to his nursery in 2015.
“You can communicate with people around the world effectively without having to have access to a person’s private property and place of business,” he said.
The case is Cedar Point Nursery v. Hassid, 20-107.