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Farmworkers lost in the Supreme Court. What about the rest of labor?

Rachel Rekowski - Law Clerk at Freking Myers & Reul
June 2021 Supreme Court decision – Cedar Point Nursery v. Hassid

In 1975, California became the first state in the nation to grant collective bargaining rights to farmworkers. A few months later, the newly-created agricultural labor board adopted a regulation that allowed union organizers to access farm property in order to educate workers on their union rights. Organizers were permitted to enter worksites in the hour before and after work and during lunch breaks for up to 120 days a year. The regulation was a major victory for the farmworkers’ movement led by Cesar Chavez, who saw meeting with workers in the fields as the only practical way to organize because many agricultural workers are nomadic, poorly educated on their labor rights, and living in remote areas.
In Cedar Point Nursery v. Hassid, the Supreme Court considered whether California’s access regulation violates the Takings Clause of the Fifth Amendment of the Constitution which reads: “Nor shall private property be taken for public use, without just compensation.” Chief Justice Roberts, writing for the majority, held that California’s regulation “grants labor organizations a right to invade the growers’ property,” and therefore, it amounted to a taking of private property without just compensation. The decision favors property rights over the rights of working people to collectively organize. In fact, the majority opinion did not mention the reality farmworkers face if unions cannot reach them in the fields. Many farmworkers will have no way to learn about their labor rights, leaving them vulnerable to abuse.

Why do farmworkers need state labor protections?

The National Labor Relations Act (NLRA) is the federal law that governs collective bargaining, giving most employees the right to join a union and negotiate a contract free from employer intimidation and retaliation. However, when Congress passed the NLRA in 1935, farmworkers were specifically excluded. According to historians, the exclusion of farmworkers (and domestic workers) from the act was motivated by racial animus, as most workers in those jobs were mainly Black and Latino. 86 years later, farmworkers remain excluded from the NLRA.
Congress also excluded farmworkers from the Fair Labor Standards Act (FLSA), which guarantees workers a minimum wage, overtime pay, and other job protections. In 1966, the FLSA was amended to partially include farmworkers in some parts of the law, but farmworkers remain ineligible for overtime pay unless state law requires it.
As a result of these exclusions, farmworkers face brutal working conditions with low pay, and many fear retaliation if they speak up or try to organize. That is why farmworkers rely on states to pass legislation. In states without collective bargaining protections, farmworkers can still form a union, but the employer does not have to negotiate with them and can legally retaliate against workers.

What effect will the Supreme Court decision have on organized labor going forward?

The latest decision from the Supreme Court is no doubt a blow to organized labor and another decision that limits the power of unions. But practically, the Cedar Point Nursery decision seems to only effect California farmworker unions because the access regulation is unique to California.
The law has limited union access to an employer’s property for decades. Generally, employers are allowed to forbid nonemployee union organizers from entering their property, unless the jobsite and employee housing places workers “beyond the reach” of a union’s reasonable communication efforts. Only a small portion of the American workforce qualify as being beyond the reach of a union, like some remote miners and offshore drillers. So, while the recent Cedar Point Nursery decision is unwelcome news and a major loss for California farmworkers, not much will practically change for most unions in the country.