Rule currently permits union access to workers on private property
By Craig W. Anderson
Agriculture in San Joaquin County and the state operates under the nations’ strictest state labor regulations. But since 1975 when the California Agricultural Labor Relations Board created the Union Access Regulation – immediately after the passage of the Agricultural Labor Relations Act – agriculture has been burdened by its draconian requirements.
The board’s access regulation allows union officials to invade the private property of ag employers and spend up to three hours a day, 120 days per year, recruiting new union members at their worksite.
“One issue with this is property rights,” said San Joaquin Farm Bureau Executive Director Bruce Blodgett. “And it’s time that somebody’s pushed back on bad state regulations. It’s typical of California. We’re pushing back after 46 years on a ‘temporary’ regulation. It’s good to have this push-back and hopefully there will be more to come.”
States cannot violate property rights guaranteed by the United States Constitution. It is, noted a Pacific Legal Foundation brief, “the job of the Supreme Court to enforce those constitutional rights when they are violated by states.”
Despite property owners having a right to exclude trespassers, California’s Union Access Regulation creates an easement that allows these union organizers to enter a business’s private property without paying compensation for a property taking.
The regulation ignored the fact that the U.S. Constitution forbids government from requiring property owners to allow unwanted strangers onto their property; Union activists are no exception and the state’s regulation that allows them to violate private property rights also violates property owners’ fundamental right to exclude trespassers.
Finally, after more than four decades of laboring under this freedom-stifling regulation, which applies to every agricultural business in the state, two companies – Cedar Point Nursery and Fowler Packing – represented by the Pacific Legal Foundation, made their case for eliminating this out-of-date regulation before the Supreme Court of the United States (SCOTUS) in March. Previously, district and appeals courts had ruled against the plaintiffs but SCOTUS decided in November to take the case.
“The access regulation at issue in this case authorizes an easement on the property of petitioners for the benefit of union organizers,” PLF attorney Joshua Thompson told the court, adding that the justices “should hold that the taking of this easement violates the Fifth Amendment because it effects a physical taking without compensation.”
Thompson said the reasons for this are twofold. “First, the appropriating of a real property interest triggers a categorical duty to compensate. The access regulation authorizes the taking of a real property interest in the form of a continual right to occupy and use petitioners’ property.”
Next, Thompson said, “the access regulation denies petitioners the right to exclude union organizers from their property. Such an infringement on the most fundamental property right merits per se treatment.”
State officials have described the rule as a temporary regulation of land rather than a taking, and as being essential in organizing the migratory farm workforce.
The final straw for Cedar Point Nursery came in the fall of 2015 when a mob of UFW organizers burst through the packing shed doors and moved through the building, shouting through bullhorns that the stunned workers needed to join the UFW. It was a far cry from the regulation’s wording that union organizers can enter the “premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support…” UFW organizers also targeted Fowler Packing.
SJFB President David Strecker brought up an aspect of the “access” policy not usually considered: its unsafe nature. He said, “In today’s world of emphasis on food and personal safety in agriculture, a group of union organizers overrunning your property isn’t exactly the safest situation.”
“We would have been horribly offended if we’d been invaded,” said Dave Phippen, almond grower and partner in Travaille & Phippen, almond processors in Manteca. “We hope the U.S. Supreme Court rules to defend property rights. I think anyone in ag would defend to the last degree the property right of farmers as guaranteed by the Constitution.”
The issue presented to the SCOTUS is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment of the Constitution, thus triggering a constitutional right to just compensation. The PLF notes in a precis of the situation that the right to exclude trespassers is a “fundamental part of property rights” and that “California’s unconstitutional access rule allows a favored third party, in this case unions, to invade a business’s property for three hours a day, 120 days a year.”
What is a “taking” and what is its role in this case? The Fifth Amendment of the U.S. Constitution requires compensation when private property is taken for public use, including taking an easement for building a road and “even an element of property, like the right to exclude strangers for specific purposes or periods of time,” noted a PLF synopsis.
The regulation is a remnant of a time gone by, when farm workers had limited, if any, access to media or other means of communication. The PLF synopsis said, “These days, most workers have access to hundreds of Spanish-speaking radio stations – the UFW even runs a multi-channel, multi-state radio network – and other media outlets, cell phones and smartphones, and the internet. Nearly all workers speak English and Spanish. Nevertheless, the board insists its regulation is required to reach these employees.”
“Things change, attitudes change, the means of communication change,” said SJFB First Vice President Ken Vogel. “Our property rights should prevail. Unions now have available to them methods of communication that didn’t exist in 1975, so they don’t need crowds of union activists to attempt intimidation when they could simply Zoom their demonstrators to show up.”
The state complains that should the plaintiffs win, fire and health inspections for restaurants will be threatened. This is a “red herring” said the PLF brief: “Governmental health and safety exceptions are governed largely by Fourth Amendment law. Those searches and inspections are generally to specific governmental health and safety purposes.”
“However, most administrative and regulatory inspections must be ‘reasonable’ under the Fourth Amendment,” the PLF brief said. And none of the exceptions cover private union organizers who are there for their own union purposes, not health and safety.
“The PLF is doing a huge service to all ag land holders,” noted Phippen. “This case is a reminder to all ag producers why we should support the Pacific Legal Foundation.”
In a recent CFBF brief, Senior Counsel Carl Borden wrote, “The state regulation contravenes U.S. Supreme Court precedent by allowing blanket access, especially when there are alternative means for unions to communicate with agricultural employees in California.” He cited a comment by a United Farm Workers organizer to the Los Angeles Times in 2019, that “Farmworkers are just like everyone else – we all have smartphones,” and that the union uses social media to communicate with members and prospective members, and, “The UFW operates radio stations in the Central Valley and on the Central Coast.”
For decades, the Farm Bureau has maintained a policy describing the access rule as unconstitutional and the policy was reaffirmed during the California Farm Bureau Annual Meeting in December.
“The California Farm Bureau support has been instrumental,” Thompson said, referring to four friend-of-the-court briefs from CFBF on the farm employers’ behalf. “The court wants to hear from the people who are directly affected by this law, and there’s no organization that knows about the access regulation more acutely than the California Farm Bureau.”
Thompson added, “We’re asking the court to rule that the appropriation of an easement permitting access to private property for three hours each day for 120 days per year is a per se physical taking. Then, California can either get rid of the rule or compensate property owners across California for the taking.”
The Takings Clause of the Fifth Amendment is clear about the government forcing property owners to open their private property for public use and thus entitles the property owners to just compensation; “I anticipate the Supreme Court will agree,” said Tony Francois, a senior attorney for the Pacific Legal Foundation in Sacramento. “That will vindicate the constitutional rights of California farmers, who already face enough challenges without government regulators giving union organizers free run of their land.”
He also said, “It’s time to remind California’s agricultural bureaucrats and their union allies that private property rights still count.”
The California Farm Bureau Federation contributed to this story.
