(Janet Levy) Americans are proud of their right to property, not enjoyed by people in many democracies. As the Cato Institute puts it, our founding fathers understood that private property is the foundation of prosperity and freedom. But California’s 46-year-old Agricultural Labor Relations Act (ALRA) violates that constitutional principle, and it even fails to protect farm workers. It allows union officials and pickets to invade farms — for three hours every day, for 120 days a year — and harangue, coerce, and arm-twist farm workers into joining the union and engaging in collective bargaining with growers even when they’re happy with their working conditions and pay. The property-owner is powerless to stop the intrusion, as the regulation does not require the owner’s permission.
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by Janet Levy, April 23rd, 2021
Surprising? That is why a forthcoming decision by the Supreme Court in a case involving a strawberry plant nursery and a packager from California and the state’s Agricultural Labor Relations Board (ALRB) will be a watershed. It will signal whether or not America will end up with more laws that stifle productivity and bestow overweening powers on Democrat-backing leftist unions.
The law came to be enacted in the first place because unions have been the most powerful force in California politics. Public-sector unions together collect over $900 million in annual revenue. These unions have long controlled the state Legislature, where Democrats have been in the majority for decades. Non-public-sector unions too — such as the United Farm Workers (UFW), founded in 1962, and known to invade private farmlands — have wielded coercive influence disproportionate to their membership. Rather than protect and fight for workers’ rights, unions have been busy increasing their power and political clout and pushing leftist agendas. Worse, with misconceived laws that give them extraordinary powers and immunities, they force workers to accept unwanted representation, bully them into paying dues, and inflict what the National Right to Work Legal Defense Foundation calls “compulsory unionism abuses.” They contribute almost exclusively to Democrat causes and give workers no say in how their dues are spent. And the unions trespass unhindered on employers’ private properties.
In 1975, the Golden State — which produces about a third of the nation’s vegetables and two thirds of its fruits, employing 500,000–800,000 farm workers — passed the ALRA and set up the ALRB. The ostensible aim: getting farmhands a fair deal from their employers. Farmers don’t sit on the board, nor is their input generally solicited. So there is a reasonable perception that the board was created for — and from its inception controlled by — the UFW. This despite the fact that the union counts only a small percentage of the state’s farm workers as members.
The case now before the Supreme Court — Cedar Point Nursery and Fowler Packaging Company v. ALRB — is one of many landmark cases exemplifying the complications of beholden politicians promulgating unions’ interests over those of workers and growers. Earlier cases highlighting this issue include ALRB v. Pandol Sons and Gerawan Farming Inc v. ALRB. Here’s a synopsis of all three in sequence.
The Pandol case is as old as the law it challenged. Pandol and Sons (AKA Jim Pandol and Company), founded in the 1930s, is a California-based grower, shipper, and distributor of fresh produce, with an annual revenue in excess of $20 million. In 1975, the company filed a complaint with the Superior Court of California, Fresno County, questioning the validity of the ALRA and seeking to prevent its enforcement. The court ruled that the law was invalid on both constitutional and statutory grounds as it deprives growers of their property rights without due process and permits access that constitutes a property “taking” without compensation. But the Supreme Court of California granted ALRB’s petition for a writ of mandate for upholding the validity of the law, propounding the “principle that all private property is held subject to the power of the government to regulate its use for the public welfare.” Later, the Supreme Court conveniently skirted the issue by stating that there was no “substantial federal question” legitimating its involvement.
The Gerawan Farming case dates back to a union election of 1992, after which the ALRB certified that the UFW was the exclusive bargaining representative of Gerawan’s workers. Other than one negotiation session in 1995, which did not end in a drafted agreement, the union stayed out of the picture for nearly 20 years. Then it suddenly made an appearance in 2012, demanding wage negotiations — requiring that Gerawan’s 5,000 employees pay union dues — 3% of their pay — or lose their jobs. Meanwhile, the workers maintained that they were happy with their working conditions and wages and better off without a union. But the California law disallowed their preference for a non-union workplace.
An election on whether or not to banish the UFW from Gerawan was held in 2013, but the union-controlled ALRB withheld the ballots and refused to count them. Gerawan then pursued a lengthy legal battle all the way to the Supreme Court, which declined to hear the case. Ultimately, the Supreme Court of California ordered a counting, saying the ALRB had “unnecessarily disenfranchised voters.” The votes were counted in 2018: the workers rejected the UFW 1,098 to 197, nearly 5:1.
In 2016, Cedar Point Nursery, which grows strawberry starters and employs 100 full-time and 400 seasonal workers, and Fowler Packing Company, which employs 3,000 workers, sued the ALRB in district court. They argued that the ALRA legalizes trespassing and violates the property rights enshrined in the Fifth Amendment. Union organizers had entered the nursery early in the morning, disrupted work, and asked workers to strike even though the workers had no complaints and were being paid well above the minimum wage. Fowler employees, too, weren’t interested in union membership, but union organizers had alleged that the company had barred them from the property.
Legal teams of both companies reported to the court that the law dated back to the 1970s, when workers lived on farms and unions couldn’t reach out to them without visiting their workplaces. Today, 96% of farmworkers live in off-farm housing and are easily accessible by radio, TV, cell phones, and social media. In addition, the UFW operates at least three radio stations in California that broadcast the union’s message to their targeted audiences in farm country.
When the district court dismissed the case, Cedar Point and Fowler appealed to the U.S. Court of Appeals for the Ninth Circuit. The appellate court upheld the district court’s decision, stating that the temporary invasion didn’t amount to a “taking” of the private property. Cedar Point and Fowler then petitioned the Supreme Court for a writ of certiorari. The lawyers for the growers argued that union access to properties without owners’ permission amounted to a “taking,” since it gives the union the ability to enter and remain on the property. They sought compensation proportionate to the time labor representatives were present and apprised the court that the ALRA is a prohibition against the “right to exclude” and thereby amounts to trespassing. Fundamental to property rights, the lawyers maintained, is that owners are free to use and enjoy their property without unwanted intrusions for whatever duration they choose so long as it doesn’t violate the law. The Supreme Court will have a decision by this summer.
The Trump administration had affirmed that the ALRA legalized a “taking” of property, but President Joe Biden, who has promised to be “the most pro-union president you’ve ever seen,” takes the opposing view. Should the Supreme Court decision favor the unions, California could serve as a bellwether for the Democrats’ proposed Protecting the Right to Organize (PRO) Act. Such legislation will overturn right to work laws forbidding unionism abuses in 27 states. It will give unions freer workplace access and force employers to enroll proportionately more workers as employees than as flexibly employed contractors.
For the 2019–2020 election season, labor unions gave 86% of their $67 million in donations to the Democratic party and candidates. Unless the Supreme Court rules against the ALRA, the consequences could translate into unbridled union power and a future of Democrat victories.
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