At five o’clock one morning in October of 2015, organizers with the United Farm Workers (UFW) arrived at Cedar Point Nursery with the intent of informing migrant workers of their rights. When Cedar Point workers went on strike later that month, they alleged low wages, unclean bathrooms, sexual assault at work, and intimidation from employers.
The UFW’s activity at Cedar Point was legally protected in California, which allows union organizers to access private agricultural property for three hours a day, 120 days per year. The rule dates to the 1975 passage of the California Agricultural Labor Relations Act, resulting from the efforts the farmworkers’ movement led by Cesar Chavez.
The owners of Cedar Point, a strawberry nursery nestled north of Mount Shasta and just south of the Oregon border, objected to the union’s presence, which precipitated the strike. In frustration they joined with another California agricultural employer, the Fowler Packing Company, which specializes in mandarin oranges and table grapes in California’s Central Valley, to challenge the hard-won access rule.
The conservative Pacific Legal Foundation (PLF) took the employers’ case all the way to the Supreme Court. In a 6-3 decision earlier this month, the Supreme Court ruled in favor of employers in Cedar Point Nursery v. Hassid.
The decision was a victory for agricultural employers, and for right-wing organizations like the PLF and the libertarian Federalist Society, which held multiple events closely tracking the case. The Right portrayed Cedar Point as a property rights case. After its victory, the PLF boasted, the “U.S. Supreme Court affirms right to exclude trespassers from your property.”
Cedar Point is also a major setback for already beleaguered farmworkers and their unions. In addition to making farmworkers even harder to organize than they already are, some progressives fear the Supreme Court decision will establish precedents that could be used to help employers dodge inspections, further limit unions’ access to workplaces, and challenge the constitutionality of the PRO Act labor law reform legislation.
The rule that gives California unions access to private property was put in place for good reason. “It takes account of who farmworkers are, how they work, and the fact that they are really hard to reach,” says Daniel Costa, director of immigration law and policy research at the Economic Policy Institute.
Costa says that many farmworkers live on the premises where they work, meaning that in order to speak to them at all, union organizers need to be able to access private agricultural property. In other cases, such as at Cedar Point, workers live in housing that is rented out and therefore effectively controlled by their employer.
On top of being physically hard to reach, Costa says there are often language barriers, with many workers speaking a primary Indigenous language rather than Spanish or English. “They also sometimes work unusual hours because of the heat, and usually live and work in far-off rural places,” says Costa.
California’s access rule was designed to take these unique circumstances into account. It’s a recognition of the reality that if farmworkers can’t speak to union organizers face-to-face on the job, they often don’t get the opportunity to interact with them at all. At the Nation, David Bacon corrects a common misconception about California’s access rule, writing, “When workers are protesting and organizing a union in the fields, they have a right to talk to union representatives at work. It’s a right of workers, rather than a right of union representatives.”
That right has come under attack at a critical inflection point for immigrant labor. The UFW and the Farm Labor Organizing Committee have between them only about twenty thousand members nationwide. Their capacity is so limited that they used the access rule on only sixty-two of California’s sixteen thousand farms in 2015, and even less frequently in subsequent years. The Cedar Point case, though it paints a portrait of agricultural employers overrun with overbearing unions enjoying a legal right to trespass on private property, is in fact a major blow to an already very weak farmworkers’ labor movement.
On top of that, there are significant changes underway that further threaten to undermine immigrant farmworkers’ right to organize. “The border security is so tight that there aren’t new flows of unauthorized migrant workers coming in to work on farms,” Costa explains. “The average age of farmworkers is creeping up, and employers are complaining of labor shortage. So employers have shifted to bringing in H-2A workers on temporary visas” to meet their labor needs.
The number of guest workers coming in on H-2A visas has been skyrocketing in recent years, to the point where “we’re basically going to see a new Bracero program all over again,” Costa says. H-2A workers have fewer rights in some cases than undocumented workers. And they’re much more likely to live on the premises where they work, making talking to them without access to agricultural property near-impossible.
In addition, says Costa, employers have been saying the wage is going up too fast. “They’re trying to push back against that through the regulatory process and by introducing new legislation that has passed the House, and that the Senate will probably consider eventually, that would put a freeze on the wages and keep them low,” he says.
All of this makes California’s farmworkers’ union access rule even more necessary at precisely the moment it’s been struck down.
Cedar Point has potential implications beyond farmworkers, too, which is perhaps why right-wing organizations are so invested in it. In the Washington Post, Erin Mayo Adams articulated a concern shared by many that the case could set a precedent for keeping inspectors and regulators off private agricultural property — to the potential detriment of workers, consumers, and the general public.
William B. Gould IV, former chair of both the National Labor Relations Board and California’s Agricultural Labor Relations Board, worried that “one of the court’s casualties may well be the constitutionality of legislation [the PRO Act] passed by the House in Washington, pending before the Senate, which would give expanded access to reply to employer captive audience speeches filled with anti-union propaganda on company time and property.”
The Supreme Court’s decision is bad news for farmworkers and their unions. It’s also bad news for other kinds of workers, not only because of the direct legal implications of the case but because when immigrant workers’ pay and conditions are kept poor, it results in a race to the bottom that affects native-born workers too. That’s why it’s so regrettable that the more exploited immigrant workers are, the more they’re subject to xenophobia and racism, making solidarity between native-born and immigrant workers harder to come by.
“Losing the access rule is not going to stop farmworkers from organizing in California and elsewhere — or stop unions from helping them,” writes Bacon. “That is the key to raising their wages and fighting this country’s epidemic of rural poverty.” But they can’t do it alone. They need tangible solidarity from the broader labor movement, the progressive and socialist movements, and native-born workers who have nothing to gain from immigrant farmworker exploitation.