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High-Stakes Supreme Court Clash Between Growers, Farmworkers Could Blow Up Other Laws

 March 31, 2021 at 11:54 AM PDT

Speaker 1: 00:00 Today is the birthday of the late labor and civil rights activist says are Chavez observed in California as an official holiday. Now almost 30 years after Chavez's death. A key part of his legacy is in jeopardy earlier this month, the us Supreme court heard arguments in a case surrounding a 1975 California law that affords union organizers limited access to farms to organize workers. Growers can tend the law violates their property rights while unions and the California department of justice say it's necessary to protect the right of farm workers to unionize. Joining me to discuss the case is Richard Paul, a founding partner at Paul Plevin, LLP as well as a professor at the university of San Diego school of law, specializing in employment and labor law. Richard, welcome, glad to be with you. Let's start by giving us some background on this case. What is the basis of this original 1975 law? And why are we seeing a challenge to it? Now? Speaker 2: 00:58 The basis of the access regulation was a recognition that agricultural labor is fundamentally different than labor in the private sector. Elsewhere seasons are short and at the time many of the workers lived on the premises. A fundamental tenant of labor organizing is the ability to communicate with workers. Workers have a right to receive information and union organizers have a right to convey information. So the origin of the rule was the Frank recognition that in the short season where election cycles are very short, an expedited method of getting information to farmers, farm workers, so they could make intelligent votes was necessary. That's the origin of the rule itself. The basic challenge by the growers is that the rule has become out of date back in, uh, 1975 when the act was passed. And shortly thereafter, when the regulation was adopted, uh, there weren't sufficient alternate means of communicating with farm workers, but now there are, uh, through cell phones, social media and the like, um, communication is essential. And the growers in their petition observed that none of these workers actually lived on the premises at the farms that were involved. And so there was really no need for a regulation that, that allows outsiders to come onto the premises. Speaker 1: 02:22 Do other States give unions the right to enter farms and speak with workers, or is this unique to California? Speaker 2: 02:29 It is unique to California in this respect, federal labor law governs labor relations generally in the private sector, but it excludes agricultural labor relations from its coverage. So States are free to have their own versions of the national labor relations act. California has by far the most developed version. And by far the most liberal access regulation. Uh, my sense is that it is likely that no other state has a, that is quite as permissive as California's. Speaker 1: 03:02 The argument from growers is that this law violates the takings clause in the fifth amendment to the U S constitution. Explain what that is and how they want it to apply. In this case, Speaker 2: 03:13 The takings clause of the constitution basically says, uh, that, uh, if the government takes the property of a private citizen for public use, the government has to pay for the property that it is taken. So if the government condemns your land to build a freeway, the government has the power to condemn your land, but it has to pay for that land that it has taken. Uh, in the last 30 years, an issue has arisen that we call regulatory taking, and that is where the government doesn't actually physically take the property, but by regulation, it diminishes or impairs the value or use of the property in the nature of an easement that allows non invited people, union organizers, to come on the property and therefore the government has to pay for it. Speaker 1: 04:04 You said that growers argue this law is outdated, that it was passed before social media or when farm workers, most for the most part lived on farms. What do unions counter to that argument? They say, of course, that it is still necessary. What are their arguments? Speaker 2: 04:20 Well, their arguments are several fold. First. They say it is necessary to be able to speak with workers where they are, especially given the fact that workers may come from lots of different locations and then meet together before the Workday or stay together in groups after the Workday. And frankly, it's just more efficient for organizers to meet with them at those points in time. Uh, workers often will get on buses and then be driven to various fields where they work and they're dispersed. And it's very difficult to keep track of them in that fashion. The other argument that labor makes is that because election cycles are very, very quick in agriculture because the season is short, the workers are only there for a short period of time. So if there's going to be a union election, campaigning has to be done. Quickly, elections have to be done quickly. And the like that this, this heightened access is really necessary to effectuate the purpose of the act, which is the having farm workers have free choice in deciding whether they want to unionize Speaker 1: 05:24 Us. Supreme court has a solid conservative majority. Now in past decisions have shown they're somewhat skeptical of labor rights. How might the justices rule in this case, could the largest be overturned completely? Speaker 2: 05:37 Uh, I doubt it, uh, it's possible that it, that it could be overturned, but I think that the major concern based on the questions that the justices asked from the bench, uh, is that this doctrine of, uh, regulatory taking is in danger of being expanded in a way that will be difficult to contain it. The questions from justice Roberts, from justice, SOTA, Moyer, and others seem to be suggesting that they're looking for a way potentially to rule with the growers, but without having to expand the idea that incidental government, uh, restrictions on the use of property violate the constitution. Uh, I read a blog, uh, earlier today, uh, that, that gives you an idea of what is at stake, at least in one person's viewpoint. And that is that the civil rights era laws, uh, w w w where we said essentially that owners of private businesses that are businesses of public accommodation hotels, and the like, uh, have to allow patrons of all colors, imposes an incidental burden that otherwise wouldn't be there. Speaker 2: 06:49 If property owners had free choice to exclude anybody they want. Uh, but we have long since, as a society grown very comfortable with the idea that that's an appropriate use of governmental power and pursuit of governmental objectives of equity and inclusion. And so I think that the majority of the Supreme court is very much aware that this doctrine, uh, if, if expanded to make potentially a taking out of a relatively minor intrusions of governmental power, uh, is troublesome and some of the justices on the court, as I'm sure you know, our, um, our, our fans, if you will, or have shown, uh, an awareness of, um, the importance of government being able to function, uh, without significant restriction, others seem to be more sensitive to property rights, but the, I predict that there will be, uh, an Alliance of different viewpoints in this decision when it comes out. That will be very non-traditional. Speaker 1: 07:52 I've been speaking with university of San Diego law, professor Richard, Paul, and Richard. Thank you. You're very welcome.

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At issue is a 1975 California law that allows union organizers limited access to farms so they can seek support from workers in forming a union.
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