SUPREME COURT CASE ON FARMWORKER PROTECTIONS COULD HARM ALL REGULATION
By Sam Knight, Truthout.
March 24, 2021 | EDUCATE!
Above photo: A farmworker in a broccoli field on January 22, 2021, in
Calexico, California. Sandy Huffaker/Getty Images.
The legacy of Cesar Chavez has been getting another look in recent months.
In January, President Joe Biden placed a bust of the 20th-century labor
leader in the Oval Office, giving journalists the opportunity to reexamine
how Chavez fought for farmworkers, while commentators on social media noted
that Chavez's treatment of undocumented immigrants, at certain points during
his life, complicates his image as a tireless champion of migrant laborers.
But a sinister reexamination of Chavez's legacy is also happening. A
California labor regulation that resulted from his campaigning is under
threat from the Supreme Court at the urging of dark money-funded right-wing
think tanks. On March 22, the court is scheduled to hear oral arguments in
Cedar Point Nursery v. Hassid, giving justices the opportunity to undermine
protections for farmworkers, alongside a wide range of regulations at every
level of government all around the country: from other worker protections,
to health and safety inspections, to rent control to civil rights laws.
In early 2017, when Donald Trump took office, one of his far right advisers,
Steve Bannon, vowed to work toward the "deconstruction of the administrative
state," describing his promise as an all-out assault on the regulatory
functions of government. With two-thirds of the Supreme Court appointed by
Republicans and half of those appointed by Trump himself, Bannon's dream
could take a giant step toward reality if the Supreme Court rules in favor
of the farm owners at the heart of Cedar Point Nursery. Such an outcome is
likely. The litigation was dismissed by the Ninth Circuit Court of Appeals
(after it was dismissed by a federal district court). By agreeing to hear
the case, the Supreme Court could be signaling that enough justices are
unhappy with the appellate court's decision - and stand ready to overturn
it.
From Agitation To Access
In 1975, then-Gov. Jerry Brown signed into law the California Agricultural
Labor Relations Act (CALRA), legislation that sought to plug a loophole in
the National Labor Relations Act (NLRA). The NLRA, which was signed into law
during the Great Depression by President Franklin D. Roosevelt, granted
legal protections to collective bargaining rights. But the law exempted
farmworkers and domestic workers, who were mostly Black, to win support from
Democratic lawmakers representing the Jim Crow South.
CALRA came into being after more than a decade of struggle led by the United
Farm Workers (UFW), which was co-founded in 1962 by Chavez, fellow labor
organizer Dolores Huerta and thousands of farmworkers. At first, UFW
rejected legislative protection for collective bargaining, relying instead
on strikes, boycotts, marches, and other forms of nonviolent resistance and
direct action to bring farm owners to the table. But after a violent turf
war waged against the UFW led by the International Brotherhood of Teamsters
(which was a mobbed-up, management-friendly outfit at the time), Chavez and
the UFW lobbied for, and won, legislative protections.
Still, CALRA alone wasn't enough to guarantee California farmworkers the
same privileges like those enshrined by the NLRA: the right to form a union,
if authorized by a majority of company workers in secret ballot elections.
Even with CALRA, it was difficult for union representatives to reach
farmworkers to inform them of their rights. Most lived in employer-provided
housing, often on the property of the farms they worked, and had to move
from job to job with the harvest. In order to ensure that migrant
farmworkers were aware of their rights under the new law, California
regulators passed the Access Regulation, granting labor organizers three
hours per day for 120 days of the year to talk with farmworkers about their
rights at work, including their right to form a union to collectively
bargain.
Even with these protections, in a state that produces one-seventh of the
country's total agricultural output, farm work in California and across the
U.S. is still grueling, precarious and done by the most marginalized.
According to UFW, almost half of all farmworkers in the U.S. (49 percent)
are undocumented. The average farmworker has an eighth-grade education and
the average farmworker's family makes between $17,500 and $19,999 annually.
Most farmworkers lack overtime and unemployment benefits, and are still
dependent on their bosses for housing: something that makes them especially
vulnerable to retaliation, should they raise concerns about pay or working
conditions. This vulnerability is magnified by the agriculture industry's
increasing reliance on guest workers through the H-2A visa program, which
grants foreign nationals temporary status tied to their employment. The
number of H-2A visas granted by U.S. officials increased almost ten-fold in
the last two decades: to 204,801 in 2019 from 30,201 in 2000.
Still, some growers and their friends at right-wing think tanks argue that
the Access Regulation must be overturned by the courts. They claim that the
rule violates a provision of the Fifth Amendment known as the Takings
Clause, which holds that private property shall not "be taken for public
use, without just compensation." This is the basis for the case being made
by the two growers litigating Cedar Point Nursery, the firm that the case is
named after, and another company called Fowler Packing. If the Supreme Court
accepts their argument in full, California will have to re-think its regime
for granting protections to farmworkers. Regulators of all kinds at every
level of government might have to follow suit.
The Right To Exclude
Despite the claims of the modern-day landed gentry, the Access Regulation
barely gives union organizers free rein on private property. Constitutional
law professor Michael Dorf calculated that it only affords organizers the
right to speak with farmhands for 4 percent of an entire year. Union
organizers also have to first register their intent to visit growers' land
with California agriculture labor regulators. And, as the AFL-CIO noted in
court filings in favor of the regulation, growers have an opportunity to
challenge planned visits "through a streamlined administrative procedure
known as a 'motion to deny access.'"
"Similarly, if a union representative, once on the property, violates the
time, place, or manner restrictions on access contained in the regulation,
the employer can obtain a cease-and-desist order and other sanctions," the
AFL-CIO noted. Penalties include the restriction of access "throughout the
entire geographic region."
But according to Cedar Point and Fowler Packing, even this sliver of access
is a violation of their property rights on par with the seizure of land by
the government to build a road or a railroad - classic examples of "takings"
recognized by the courts. And they're asking the Supreme Court to order the
state of California to compensate them for these intrusions because, they
argue, property rights give owners a sacred and unimpeachable "right to
exclude" whomever they want.
"The taking of an easement deprives the property owners of the right to
exclude trespassers from their property, a right that is 'universally held
to be a fundamental element of the property right,'" lawyers for the two
companies claimed, citing the outcome of Kaiser Aetna v. The United States,
a 1979 case about the federal government ordering private developers to
grant public access to a marina built by the developers. "The right to
exclude is too important to be left at the mercy of government officials who
will inevitably seek as much public access as possible without paying for
it," the lawyers for Cedar Point and Fowler stated.
Supporting this crusade is a legion of well-funded right-wing think-tanks
who filed friends of the court briefs (amici) on behalf of the two
companies. One such think-tank, the Pelican Institute for Public Policy
argued that the absolute right of property owners to exclude others is
"fundamental," claiming that it stretches back to ancient Rome and
Mesopotamia. Likewise, the Koch-funded Americans for Prosperity said that,
"the government cannot simply declare that one person's property now belongs
to someone else," as if the Access Regulation was tantamount to land
expropriation. The Mountain States Legal Foundation lamented that the
Supreme Court hasn't adopted a more reactionary approach to private
property, even as the federal judiciary has been packed with right-wingers
in recent years, insisting that "public use jurisprudence is an unfortunate
relic of the Progressive Era that has managed to survive this Court's return
to a more originalist jurisprudence." The organization also implored
justices to ignore prior decisions on the matter by the court, a major no-no
in the legal world, saying, "this Court cannot continue to shackle itself to
ill-conceived precedents decided during times of American history where
fidelity to the written constitution was much weaker than during the early
Republic or today." Meanwhile, the Institute for Legal Justice whined to
SCOTUS that justices need to change the doctrine governing the Takings
Clause because "[p]revailing on a regulatory taking claim" - the mere
limitation of use on private property - "is difficult for property owners."
If these arguments were to prevail, a wide range of regulations would be
thrown into disarray. City, county and state governments filing amici on
behalf of California noted that core government functions rely on access to
private property against the will of its owners. "The right to exclude" must
be disobeyed by regulators maintaining food safety, building codes, fire
safety, pest control, water safety, child welfare, among other regulatory
regimes. Laws mandating accommodations for disabled people could also be
threatened, the Service Employees International Union warned in a separate
amicus. Rent-control systems and laws forcing companies engaging in unfair
labor practices to reinstate fired workers are also limitations of rights of
exclusion, the UFW noted. And as the union co-founded by Chavez also pointed
out, in 1964, the Supreme Court struck down a challenge of the Civil Rights
Act brought by Atlanta motel owners claiming that the landmark law violated
their right to exclude Black people from their property.
With implications far beyond California agriculture law, it's no surprise
that the aforementioned right-wing think-tanks are urging SCOTUS to rule on
behalf of Cedar Point Nursery and Fowler Packing. As noted in an amicus
filed by a group of Democratic senators, among the organizations' donors are
billionaires and well-known vehicles for rich anonymous donors seeking to
advance the agenda of rent-seeking capitalists: DonorsTrust, Donors Capital
Fund, the Lynde and Harry Bradley Foundation, the Charles Koch Foundation
and the Sarah Scaife Foundation. Cedar Point and Fowler themselves have also
been represented every step of this case by the Pacific Legal Foundation,
whose donors include some of the same boosters of organizations filing amici
on behalf of the two growers, including the Sarah Scaife Foundation, Donors
Capital Fund, the Charles Koch Foundation and other organizations controlled
by the billionaire industrialist. Some of these organizations, including
Americans for Prosperity, spent heavily to lobby for the confirmation of all
three Trump appointees on the Supreme Court: Amy Coney Barrett, Brett
Kavanaugh and Neil Gorsuch.
"The Only Effective Way To Communicate"
Some organizations that have also received money from the aforementioned
donors have set their aim slightly lower than those calling for an absolute
right of exclusion. The most powerful corporate lobbying group in the
country, the U.S. Chamber of Commerce, filed an amicus brief claiming that
the right to exclude can only be infringed when business owners agree to
licensing schemes. (The Chamber also spent large sums of money to lobby the
Senate to confirm right-wing SCOTUS appointees.) The Cato Institute and the
National Federation of Independent Businesses jointly insisted that property
rights can only be violated without compensation when such violations
"curtail harmful externalities." Otherwise, they said, the right to exclude
is crucial for protecting property owners from "mob rule or the dictates of
a Leviathan state."
These proposed rules might seem more reasonable than an absolute right of
exclusion, but they would still undermine a staggering array of regulations.
Eighteen city and county governments who filed an amicus opposing Cedar
Point and Fowler insisted that regulators "should not be forced to adopt
licensing schemes to implement reasonable regulations to protect the health,
safety, and welfare of their residents." The proposed exceptions to rights
of exclusion, these governments remarked, "would invite, rather than avoid"
arbitrary standards, which would pave the way for property owners to
challenge basic regulations. "And even if courts reject these baseless and
disruptive lawsuits, local governments would still be forced to shoulder
substantial litigation costs," the local officials said.
However, the so-called administrative state is left after Cedar Point
Nursery, it's likely that justices will rule in favor of the two growers - a
result that would deal a blow to some of the most downtrodden workers in the
western hemisphere by depriving them of perhaps their only source of
information about their rights on the job. Those opposed to the Access
Regulation claim that this assertion is anachronistic due to smartphone
technology and the fact that many workers no longer live on farm properties.
But even if workers don't live where they work, they still live in housing
provided by employers, and bus to and from work on their bosses' dime.
"While the current version of the regulation allows access to these workers
while they are waiting to be transported by bus to the workplace, it
expressly bars any activity that would prevent these workers from getting on
or off the bus," the UFW noted in its amicus. "Nor does the Regulation
require that the grower or farm labor contractor inform union organizers
where and when employees get on the bus, much less allow them to ride the
bus."
As far as the smartphone claims go, the union noted that cell service is
often spotty in rural California, and that data plans are prohibitively
expensive to those making less than $20,000 per year. Also, it remarked,
more than 117,000 migrant workers are "[I]ndigenous workers from Mexico who
have limited formal educations and limited knowledge of both English and
Spanish." Some of the languages they speak, the UFW said, "do not even exist
in written form."
"The only effective way to communicate with these workers about their rights
is in person, and the only practical means for union organizers to locate
and meet with these farmworkers for such communications is to do so in the
fields where the farmworkers are employed," they said - which would explain
why growers are so keen on killing the access regulation.
The fact that their efforts could wipe out regulatory functions at every
level of government across the country only sweetens the deal for these land
owners, their billionaire friends and those carrying water for the rich in
the right-wing think tank world. It's going to take more than a bust of
Cesar Chavez in the Oval Office to thwart them.