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In A Narrow Ruling, Supreme Court Hands Farmworkers Union A Loss

 June 23, 2021 at 11:57 AM PDT

Speaker 1: 00:00 The Supreme court today struck down a rule in California that allowed unions, limited access to farms to try and organize workers. The court's conservative majority found the rule violates constitutionally protected property rights. It's the latest in a series of legal setbacks for organized labor. Joining me to unpack what the ruling means is Dan Eaton, legal analyst and partner at the San Diego firm of seltzer, Caplan McMahon, and Vtech. Dan, welcome back to the program. Speaker 2: 00:29 Good to be with you, Andrew. Now there were Speaker 1: 00:31 Limits as to when union organizers could access private farms in California prior to this Supreme court ruling, remind us what those limits were Speaker 2: 00:41 Understands that the regulation that was an issue provided union organizers only access to these farms for the three hours a day, 120 days per year. And that was an hour before work an hour during lunch and an hour after work for the purposes of talking to a workers. The question is whether that access to the farmer's property constituted a taking under the fifth amendment of the United States, which requires the government to pay just compensation of property is taken either for itself or someone else. And that was really the issue. So why Speaker 1: 01:15 The union organizers say that they need access to farms? Why did they deserve to get onto this private property? Speaker 2: 01:22 Well, the reason that the government wanted to appropriate this right of access or east meant to the property for the union organizers was because without it, they have a very difficult opportunity to gain access to these farm workers who may or may not be interested in organizing it effectively. At least according to the union, organizers eliminates their opportunity effectively to organize their workers. And therefore, as a practical matter, if this access to property is not allowed, the union organizers have no effective ability and the union and the workers themselves have no effective ability, uh, to organize for purposes of their wages hours and working conditions and farm Speaker 1: 02:06 Workers, of course are famously very transitory. Don't spend a whole lot of time and, and maybe moving from farm to farm. Now, this decision was a clean split between the courts, six conservative justices and the three liberal justices. What did the majority say in striking down this rule in California? Speaker 2: 02:23 Well, first let me note that, that is one of the fascinating things about the case is that you do have a clean split between the six conservative justice and three liberal justice, which we really haven't seen much, but basically what the conservative majority writing crew chief justice, John Roberts said is that this is a per se taking of lamp, even though the union organizers are not given permanent and continuous access, it still eliminates the owner's right to exclude, uh, these, uh, union organizers from their property. It doesn't matter if it's temporary. The fact is that the owner's rights being interfered with, and that is a problem. And it requires just compensation. The fact that the farm are not generally open to the public means that unlike in the case of a shopping mall, but the owners of the land have the right to exclude, uh, anybody, including union organizers. And this regulation interfered with that, right? Speaker 1: 03:20 Did the courts three liberal justices Kagan Briar? And so to my, or say in their dissenting opinion, Speaker 2: 03:27 They said, well, come on, let's, let's be realistic here. You are not talking about, uh, something that is a permanent and continuous intrusion. You're not talking about a taking, you're really talking about something that feels more like a regulation, a temporary regulation for a public purpose, uh, that is, uh, not taking away any kind of real value or from the owners, uh, land. And therefore, uh, really, there's no reason to treat this as an absolute taking regulations are. Okay. Plus set the descent. You're going to start interfering with all kinds of other reasons that the government needs access to a land such as for example, a health and safety regulations. The majority opinion said, no, we're not that the hypothetical you've suggested, uh, doesn't apply here because the government can still take trespass actions for the purposes of public use. That's not what this is. And that was a distinction that was made in the disagreement between the majority of the dissent. The Speaker 1: 04:29 Crux of this decision, as you noted, is whether allowing union organizers onto private property is an unlawful taking of that property without just compensation. So does this theoretically mean that unions could still access the farms if say they or the government pay the property owner for that access? Or is it just a de facto ban on that access altogether? Yeah. Speaker 2: 04:51 Uh, it's a very interesting and complicated question. That'll have to be resolved when the case is, uh, sent back to the district court. The issue of remedy was really not addressed by the majority opinion and only briefly touched on, uh, by the dissent, but at least theoretically, yes, a government may take property and it happens all the time. The fifth amendment requires and the 14th amendment as applied to the states or requires that they provide just compensation. Those are interesting questions that will have to be resolved below if the state continues to want to have this regulation aware where allows a union organizers access to farm property. Speaker 1: 05:27 Now this Supreme court has not been friendly to organized labor. What are some of the other recent Supreme court decisions that have rolled back the power of unions in the country? Speaker 2: 05:36 Well, the, the one case obviously, uh, which was written by, uh, Alito a few years ago, said that public employees could not be required to pay agency fees if they were not members of, uh, of the union. And, uh, justice Alito said, no, you can't do that. Uh, consistent with the national labor relations act because these, uh, employees have the right not to have part of their paycheck, uh, put into union coffers if they affirmatively choose not to, uh, join the union. Uh, and what the union said was that, wait, you're just allowing them to be a free loader. Cause they get all the benefits without putting in all of the money to pay for those benefits. Alito said, no, you just can't allow them to be forced to pay in violation of their free speech, right? To a stain from being members of the union. I've been speaking Speaker 1: 06:24 With Dan Eaton, legal analyst and partner at the San Diego law firm of seltzer, Caplan, McMahon, and Vtech. And Dan, thanks. It's always Speaker 2: 06:32 Good to be with you, Andrew. Speaker 3: 06:42 [inaudible].

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At issue in the case was a California law that allows union organizers to enter farms to speak to workers during nonworking hours for a set a number of days each year.
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