Supreme Court Reviews Union Organizing Rule
Kevin Hecteman, Ag Alert
November 25, 2020
The U.S. Supreme Court will decide next year whether a California regulation allowing union organizers to visit a farmer's private property to encourage employees to join the union is constitutional.
The regulation was adopted on an emergency basis in 1975 by the state Agricultural Labor Relations Board, then newly created by the Legislature. The regulation allows union organizers access to agricultural property for three hours per day—before work, at lunch and after work—for as many as 120 days per year, on the theory that the union has no other effective means of reaching out to employees. The California Supreme Court narrowly upheld the rule in a 1976 case, Pandol and Sons v. ALRB.
In the current case, two agricultural businesses—Cedar Point Nursery in Siskiyou County and Fowler Packing Co. in Fresno County—sued the ALRB's members in 2016, claiming the regulation amounts to the government granting an easement on private property without compensation—a violation of property rights guaranteed under the Fifth Amendment to the United States Constitution. Fresno attorney Howard Sagaser and the Pacific Legal Foundation represent the farmers.
Sagaser, who was an extern at the state Supreme Court when the Pandol case was decided, said he felt that decision was wrong because it didn't balance rights properly.
"You have the First Amendment, which is the right of free speech, and then you have the Fifth Amendment, which respects private property," Sagaser said. "You cannot have a taking of property without due process. What we're saying here is that you have the state of California, in effect, granting an easement to the UFW or the unions to come onto private property without compensation and without due process."
Pacific Legal Foundation attorney Wen Fa pointed to an early-morning visit to Cedar Point by United Farm Workers organizers in 2015, in which the activists entered the production facility at 5 a.m. and used a bullhorn to convey their message; video of the incident can be seen at pacificlegal.org/case/cedar-point-nursery-v-gould/.
"By allowing union organizers to invade the property of agricultural businesses, the regulation takes from those businesses the right to exclude, which is fundamental as far as property rights is concerned," Fa said. "That is why we took this case."
The California Farm Bureau filed three friend-of-the-court briefs supporting the farmers: two while the case was in the 9th U.S. Circuit Court of Appeals and a third urging the U.S. Supreme Court to review the 9th Circuit decision that upheld the regulation.
Carl Borden, California Farm Bureau senior counsel, said when the ALRB was created in the 1970s, it was much more common for farm employees to live on the employer's property than it is now. The access regulation, he added, was based "on the ALRB's belief that unions generally had no alternative channels of effective communication to get their message to agricultural employees."
Even if true in 1975, that is certainly not so much the case anymore, he noted in the Farm Bureau brief, citing a 2003-04 National Agricultural Workers Survey reporting more than 96% of crop farm employees in California lived off-farm in housing not owned or administered by their employer.
The Farm Bureau briefs drew heavily from a 1992 case, Lechmere, Inc. v. National Labor Relations Board, in which the U.S. Supreme Court ruled East Coast retailer Lechmere was within its rights to bar union organizers from its privately owned parking lot. Unions can be granted access to an employer's property for organizing only in very limited circumstances, the court held, citing mining and logging camps and mountain resort hotels as examples.
The Lechmere case "held that the employees who don't live on their employer's premises are presumptively within the reach of the union's message," Borden said, noting that the court's opinion expounded on a similar 1956 decision in which the court ruled nonemployee union organizers may access an employer's private property only under limited circumstances.
The Farm Bureau briefs noted the UFW operates radio stations in Salinas, Visalia and Bakersfield. The Supreme Court brief also includes quotes from a 2019 Los Angeles Times interview with the UFW national field coordinator, who declared "farmworkers are just like everybody else—we all have smartphones," and saying the union uses social media to communicate with farm employees.
Sagaser said with the proliferation of Spanish-speaking radio and television stations, plus the internet, "this basis that there's no alternative means of communication just isn't there."
"There's always been ways for the unions to convey their message to employees, whether it's standing outside on public property and handbilling, or radio announcements, or having meetings at a union hall or public places," he said. "This is really a property-rights case. Do it on your own time, on your own property, and don't interfere with our production."
Fa said oral arguments before the Supreme Court should take place near the end of February, with a decision expected by the end of June. He said the California Farm Bureau friend-of-the-court brief was among seven filed at the petition stage. The American Farm Bureau Federation also filed a brief.
"It's good to see, and I think it convinces the court that there's a lot of interest in a case like this," Fa said, adding that the Farm Bureau briefs "really highlight the practical importance of a case like this."
Sagaser said he's optimistic the court will uphold private-property rights.
"I think, at least, the Agricultural Labor Relations Board is on notice that they're proceeding at their own peril if they continue to try to enforce the access rule," he said.
(Kevin Hecteman is an assistant editor of Ag Alert. He may be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..)