You didn't see this in the news - at least we didn't anyway - but recently the U.S. District Court for the Eastern District of California (in Fresno) handed the Agricultural Labor Relations Board (ALRB) a temporary victory in an ongoing case called Cedar Point Nursery v. Gould IV.
In Cedar Point, which we first mentioned here, employers are trying to turn back the clock on farm workers by threatening their hard-earned right to organize.
Short History Lesson
First, some background for you non-native Californians unfamiliar with the century long struggle of farm workers in this State, or those California-born residents of privilege who never cared. Ever wonder how you're able to enjoy the fruits and vegetables that end up on your dinner table?
South Sac Blog Photo
Well of course they come from farms. But do you realize most were handpicked by workers who endure hours of back breaking labor in the fields and orchards for nothing more than minimum wage?
Jack Delano [Public domain], via Wikimedia Commons
Machinery can't be used to individually pick fruits and vegetables from plants. No. Laborers, often stooped over in the hot Central Valley sun and with blistered fingers and hands, must painfully wield the tools of their trade that have been used by farm workers for centuries, such as knives, hoes, clippers, and pruners.
California farm workers have always had it rough. From the 1800's, when thousands of oppressed Chinese and Japanese laborers were brought to work in the fruit orchards and sugar beet fields, to the 1930s and 40s when Filipino workers labored in pitiful working and living conditions and endured racially motivated assaults, to the 1960s when Mexican farm workers continued to face deplorable living and working conditions, farm workers of all minority races often lived in mosquito-infested bunkhouses and shacks without electricity, running water, or bathrooms. All endured racial discrimination, mistreatment, and depressed wages. Growers kept workers separated and isolated, even pitting minority groups against each other.
In the 1960s and early '70s, farm laborers won better working conditions as a result of the merger of two workers' rights organizations, the Agricultural Workers Organizing Committee (AWOC) led by Filipino organizer Larry Itliong, and the National Farm Workers Association (NFWA) led by César Chávez and Dolores Huerta. The two organizations formed the United Farm Workers Organizing Committee on August 22, 1966. This organization was accepted into the AFL-CIO in 1972 and changed its name to the United Farm Workers Union.
In 1975, California enacted the Agricultural Labor Relations Act (ALRA), creating the ALRB. The ALRB is responsible for the prevention of unfair labor practices that impede the free exercise of farm workers' rights.
Consequently, at the end of the 1970s, California farm workers were among the highest-paid farm laborers in the U.S. But these gains were short-lived.
Today, California's agricultural laborers continue to endure jobs that pay minimum wage and often less, and are mostly unable to find permanent year-round work. At a hearing in September of 2015, the ALRB heard testimony that farm workers remain largely unaware of their labor rights because of a number of communication barriers: 1) Reaching employees directly offsite is difficult because of the long hours that agricultural employees work; 2) Many workers are not literate in Spanish or English, and lack access to the internet because of the high cost of data plans and computers; 3) Workers’ lack of language and computer literacy means that online outreach efforts have largely unsuccessful; and 4) Farm workers remain fearful about exercising their rights and face-to-face communication is critical in helping them overcome these fears.
Cedar Point Nursery v. Gould IV
The lawsuit by Cedar Point Nursery and Fowler Packing Company is a legal challenge to an ALRB regulation - the Access Regulation - that facilitates the sacred rights of farm workers to organize. The freedom of association guards an individual's right to become part of a group for the protection of his or her rights. It is an explicit aspect of the First Amendment to the U.S. Constitution, stemming from the right to peacefully assemble and petition the government. It is the freedom of association which creates the possibility for citizens to win other freedoms, and is closely linked with the right to organize.
ALRB's Access Regulation provides that “the rights of employees" include “the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.” In other words, as a result of the long history of oppression by California growers against their own workers, representatives of a union are allowed by law to enter farm lands where laborers work in order to inform them of their legal rights.
The Access Regulation does not allow union representatives unfettered access to private property. For example, consider these limitations:
- The union must provide notice to the ALRB and the employer of its intent to appear onsite.
- No organization may appear for more than four thirty-day periods in any calendar year.
- Organizers may only enter an employer’s property “for a total period of one hour before the start of work and one hour after the completion of work” and for “a single period not to exceed one hour during the working day for the purpose of meeting and talking with employees during their lunch period.”
- Access is limited to a certain number of organizers (depending on the number of employees) and organizers are not allowed to engage in “conduct disruptive of the employer's property or agricultural operations, including injury to crops or machinery or interference with the process of boarding buses.”
- Organizers are only allowed to meet with employees in areas “employees congregate before and after working” or “at such location or locations as the employees eat their lunch.”
In papers filed with the court, the employers - Cedar Point and Fowler - disclosed that union reps entered their property on only one occasion. Accordingly, they do not contend that the Access Regulation deprives them of “all economically beneficial use” of their properties.
Despite these facts and the limitations enumerated above, Cedar Point and Fowler, claim that, in its implementation, the Access Regulation amounts to both a “taking” of their property in violation of the Fifth Amendment, and an unlawful seizure of their private property in violation of the Fourth Amendment. They sued the ALRB in federal court, seeking a declaratory judgment stating that the Access Regulation is unconstitutional as applied to them and an order enjoining the ALRB from enforcing the regulation against them.
Back in February the employers filed a motion for preliminary injunction, asking the court to immediately enjoin the ALRB from enforcing the Access Regulation on their properties. The court rejected the employer's Fifth Amendment "takings" claim in April, finding the employers were not likely to succeed on that claim. The employers argued that the Access Regulation constitutes a per se/categorical physical taking of their properties, because it infringes on their right to exclude strangers from entering on to their lands. The court found that the plain language of the Regulation simply does not allow the "permanent physical occupation" of the employers' properties that would violate the Fifth Amendment.
But the court asked the parties for more briefing regarding the employers' Fourth Amendment - unlawful search and seizure claim. Having received that briefing, the court issued another decision on May 26th. In that decision, the court found that: 1) Cedar Point and Fowler were not likely to succeed on their Fourth Amendment claim; 2) the Access Regulation was reasonable; and 3) the employers cannot show that they are likely to suffer irreparable harm, because they failed to demonstrate that the regulation causes constitutional injury. Therefore, the court denied the employers' motion for a preliminary injunction in its entirety.
What's Next?
Still pending before the court is a motion filed by the ALRB for the court to dismiss the case. If the court grants that motion, the employers are almost certain to appeal to the Ninth Circuit. If the court denies the motion, the parties will probably complete discovery and file additional dispositive motions before having to go to trial.
The employers must respect the rights of workers to organize, but so must union officials respect the property rights of growers. The court's May decision indicates that the employers can take, and have taken, other measures to protect their rights against unlawful trespass by union reps that disrupt their business activities. Cedar Point has apparently filed charges with the ALRB that the union reps entered their property in a manner that violated the Access Regulation. We hope the ALRB takes a fair and objective look at that claim, and initiates appropriate action if warranted. That seems like a more reasonable approach to ensure that peaceful and productive agricultural work continues, while safeguarding the mechanism to protect workers' rights.
