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Union Access on California Farms Gets Supreme Court Review (1)

Nov. 13, 2020, 7:23 PMUpdated: Nov. 13, 2020, 9:01 PM

The U.S. Supreme Court will consider whether to uphold a California regulation that allows union organizers to approach agriculture workers on site to recruit, organize, and hold protests.

The justices agreed on Friday to hear arguments over the constitutionality of a California Agricultural Labor Relations Board regulation adopted in 1975 to protect labor rights of farm workers. A split U.S. Court of Appeals for the Ninth Circuit in May 2019 upheld the rule, despite cries from growers that the state’s decades-old regulation strips them of their property rights.

The rule allows unions to access the property 120 days a year for three hours a day. It was created because many farm workers are migrants who live in temporary housing that makes it difficult to make personal contact.

Cedar Point, a strawberry farm near the Oregon border, and Fowler Packing Co., which grows grapes and citrus in Fresno County, challenged the rule. Both farms said protests on their properties disrupted their business operations.

The growers arguedintheir high court petition that the California regulation amounts to a taking of property without just compensation, which they say is unconstitutional under the Fifth Amendment. They also say the justices must resolve a circuit split created by the Ninth Circuit’s decision.

“We’re delighted that the Supreme Court has taken up this important property rights case,” said Wen Fa, attorney with the Pacific Legal Foundation, who represents the growers. “The constitution forbids government from forcing property owners to allow unwanted strangers onto their property, and there is no exception for union activists.”

California Attorney General Xavier Becerra’s office, which is defending the Agricultural Labor Relations Board, declined to comment, deferring to Gov. Gavin Newsom. Neither the governor’s press office, nor the board, immediately responded to emailed requests for comment.

Pro-business groups, including the Cato Institute and the California Farm Bureau, have backed the growers, both in the Ninth Circuit and to the Supreme Court in friend-of-the-court briefs, arguing the intrusion on land that leads to business disruption violates property rights.

California’s lawyers backed the regulation, saying it gives a limited right to access the property of agricultural employers. The rule restrict access in several ways, they argue, including limiting it to non-work spaces, during non-work periods for no more than three hours per day, and for no more than four thirty-day periods each year.

The state attorneys argued the growers don’t “establish that the challenged regulation, which is rarely invoked and allows only limited access subject to numerous safeguards and restrictions, has caused them or other agricultural employers any actual economic harm or disruption.”

Ninth Circuit Ruling

The Ninth Circuit was divided when it issued its three-judge panel ruling, as well as when it denied full court review.

U.S. Circuit Judge Edward Leavy, in his May 2019 dissent, said the Supreme Court has never held that a non-employee union organizer may enter an employer’s private property if no employees live on the grounds. Cedar Point and Fowler adequately alleged that none of their employees lived at their work sites, the 1987 appointee of President Ronald Reagan said.

He cited a 1992 Supreme Court opinion involving union organizer access to an employee parking lot. In that case, he said, the high court concluded that when no employees live on a work site, an employer has a constitutional right to exclude from its premises non-employee union organizers who have effective alternative methods of communicating with them.

George W. Bush-appointee Judge Sandra S. Ikuta dissented from the Ninth Circuit’s denial of en banc review, saying the panel decision violates growers’ property rights, contradicts U.S. Supreme Court precedent, and creates a circuit split. Seven other judges joined Ikuta’s dissent.

Ikuta argued that the agricultural industry has “changed dramatically in the past 40 years,” such that most employees do not live on the employer’s property and “modern technology gives union organizers multiple means of contacting employees.”

The case is Cedar Point Nursery vs. Hassid, U.S., No. 20-107, cert. granted 11/13/20.

(Adds comment from the Pacific Legal Foundation.)

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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