Labor Alert: U.S. Supreme Court Orders UFW to Get Off Our Lawn

On Wednesday last week, the U.S. Supreme Court handed down a victory for California farmers on union access. In Cedar Point Nursery v. Hassid, the U.S. Supreme Court decided that California’s right-of-access to solicit support for unionization constitutes a “taking” under the Constitution.

As a refresher on this issue, California regulation has granted labor organizations a “right to take access” to an agricultural employer’s property to solicit union support. The regulation has mandated that agricultural employers allow union organizers onto their property within certain time, place and manner restrictions for a maximum cumulative period of, 120 days per year in 30-day intervals.

Now, the U.S. Supreme Court has said that this “right to take access” is simply put – the State of California using (i.e. “taking”) private Ag property for its public use without payment. The State’s failure to pay for this public use violates the Constitution. At its core – the U.S. Supreme Court says California’s right-of-access regulation is illegal.

COUNSEL TO MANAGEMENT:

So what does this mean for California Ag today? And what can we expect next?

This means that Agricultural employers need not allow for access to be taken by Unions going forward and should treat any such access as an act of trespass. For now, California employers can tell any and all union organizers to kick rocks. What we can expect next is new regulations from the State. Specifically, we can expect:

• That the State under Governor Newsom’s direction will be scrambling for new regulations on some “access-like” shortly.
• As we have seen with union pensions, pro-union advocates both inside and outside of Newsom’s office will look for funding to compensate Ag employers for this access and get union organizers back in the fields as quickly as possible.
• The Unions are continuing to work hard on “card-check” legislation eliminating the secret ballot election process;
• The Unions are continuing to broaden the amount of information to be provided by employers when and if they trigger their entitlement to employee lists. For example, under the ALRA, a union may file a Notice of Intent to Organize (“NO”) supported by at least 10% of the employees. Within 5 days, the employer must submit a list of all agricultural employees to the Regional Director. Upon verification of the 10% showing of interest, the Regional Director will provide the union with the employee list, which must include their street (not mailing) addresses. The NO may not be filed unless the union filed an NA in the preceding thirty days. (We can expect the State to eliminate this last requirement). Unions will want more e-mail addresses and phone numbers, and if they have their way they will also want access to the employer internal communication platforms such as email systems and social media platforms used to communicate and recruit workers. This is already underway on a national level. Unions are attempting under the National Labor Relations Act (NLRA) to broaden the access they receive (currently none) to company e-mail systems and social media platforms. We can fully expect California Ag Unions to do the same.
• Lastly it is important to know that additional cases will be heard by the high Court, so stay tuned

The Union has a tough road given that on a federal level “access” has historically been based on available alternative means to reach the workers. In this day and age with social media, they will be hard pressed to argue that access is being limited in any way….however that being said, stay tuned for a hard push for the broadening of information to be required by employers to be turned over early in the election process. Our Ag Labor Team is way ahead on this subject and has been using high-tech tactics not only to communicate with employees on behalf of Ag employers, but also to limit Union access to such platforms. Stay tuned for additional developments, and in the meantime if you have question don’t hesitate to contact The Ag Labor Team.

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Source: The Saqui Law Group

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