California Rural Legal Assistance submits powerful amici brief to the Supreme Court supporting union access for farmworkers

Cedar Point Nursery, an Oregon corporation, has brought a case to the U.S. Supreme Court that will test whether the access regulation of the Agricultural Labor Relations Act (“ALRA”) constitutes a per se taking of farmer’s property under the Fifth Amendment.

The access regulation of the ALRA, established in 1975, grants union organizers the ability to access farmworkers on farms for the purposes of sharing information about various employee rights and helping with union organization. However, the access is limited. Union organizers must provide the employer with prior written notice of their intent to access farmworkers. They may only access farmworkers before or after work or during the farmworker’s lunch break. Furthermore, the time the organizers spend with the farmworkers on the farm must not exceed one hour per meeting or three hours total. The access regulation also sets rules governing the secrecy, timeframe, and procedure of union elections. In addition, the access regulation is strictly enforced and organizers who violate the rule are subject to sanctions.

The case at hand, Cedar Point Nursery v. Hassid arose in 2015, when organizers from the United Farm Workers (“UFW”) union entered Cedar Point’s California nursery to speak with its farmworkers. At the time of entry, UFW had not provided Cedar Point with any notice of their intent to take access in violation of the regulation’s requirements. Cedar Point then filed suit against the Agricultural Labor Relations Board arguing “that the access regulation, as applied to them, amounted to a taking without compensation . . . and an illegal seizure” in violation of both the Fourth and Fifth Amendments.

The California Rural Legal Assistance Foundation (“CRLA”) submitted an amici brief arguing in favor of the access regulation requirement and explaining why the regulation is still needed, forty-five years later. An amici brief also known as a “friends of the court” brief is a written document put forward by a group of people (not a party to the lawsuit) who have a strong interest in the matter and submit this document "with the intent of influencing the court's decision.” Here, through its amici brief, CRLA attempts to influence the Court to uphold the access regulation.

CRLA argues that unlike regular employees, farmworkers are inaccessible outside the workplace. Thus, the usual methods of communication are not effective and the need to access the farmworkers on the farm remains the most effective way to reach them. CRLA mentions housing, access to technology, and lack of education of farmworkers as reasons why the access regulation is needed.

In its brief, CRLA touches on the fact that farmworkers often have inadequate or no housing at all, making it difficult to reach them at their place of residence. They explain that many farmworkers are homeless, living in cars, tents, or garages as a result of the cost and lack of available housing. CRLA refers to Lisa Pruitt and Zach Newman’s article on the rural housing crisis to show that following Los Angeles, “the next four highest cost-burden counties in California are rural.” Those who have employer-provided housing are not much better off. In fact, they’re often subject to “unofficial oversight and control.” For example, when employers provide the housing, they can refuse to provide farmworkers with internet access. They may also impose strict rules, as described by the following quote:

Most employer-provided housing at motels, in labor camps, or even in single family homes, have rules establishing curfews, requiring visitors to sign-in, and even require permission from foremen who live on-site before visitors can enter the housing or common areas.

Challenging the assumption that farmworkers can be reached through the usual methods of communication such as written materials, CRLA refers to a 2015 Agricultural Labor Relations Board Memo which found that “many [farmworkers] are also ‘functionally illiterate’ (reading at between fourth and seventh grade levels) or ‘totally illiterate’ (reading below fourth grade level), struggling or unable to acquire information through print. Thus, CRLA argues, print communication is futile.

Like print communication, information communicated via technology may also be difficult for farmworkers to navigate. CRLA argues that “what may generally be considered simple tasks, like joining a conference or video call, are immensely difficult tasks for farmworkers.” In addition to the fact that “only about one-third of California rural households subscribe to internet service,” farmworkers in particular are less likely to have access to internet. The Agricultural Labor Relations Board found that when confronted with expenses, internet is the first expense that farmworkers cut when money is short. More on the broadband gap in rural areas can be found here.

CRLA emphasizes that the access regulation is critical in reaching farmworkers, who tend to move from field to field instead of working at one particular farm. Thus, aside from the access regulation, there is no easy way to reach the workers as they move frequently and are often scattered throughout the state. Further, there is no place where organizers can meet with the workers. CRLA describes that there are no coffee shops or multi-purpose rooms where they can meet with the farmworkers. Instead, they remind the Court that where the “highway ends, the growers land begins,” leaving union organizers reliant on this access if they wish to reach farmworkers.

CRLA also argues that aside from the fact that the access regulation remains necessary and is constitutional, Cedar Point has not proven an injury nor is the issue ripe for adjudication. Thus, CRLA argues, Cedar Point has no viable claims, and the access regulation should stand.

The U.S. Supreme Court is scheduled to hear oral arguments on this case on March 22, 2021. During oral arguments, both parties will present the evidence and law that supports their position. Cedar Point Nursery will likely argue that the access regulation is unconstitutional and should be struck down because it allows union organizers to enter their private property. The lawyers for the Agricultural Labor Relations Board will argue that the access regulation should stand and will probably make many of the same arguments that were covered in the CRLA brief regarding the difficulty of accessing farmworkers outside the workplace.

Following oral arguments, the Supreme Court justices will debate the issue and form coalitions reflecting their stance on the case. The task of writing the opinion will then be assigned to one of the nine Justices. It is hard to say when exactly an opinion on this case will be released. At the latest, we can expect it to be released sometime this summer.

It will be interesting to see how the Court comes out on this issue of private property rights versus union access. Will they uphold this limited access for the sake of unionization, or will they find that the access regulation unconstitutionally infringes on the rights of private property owners?