Note from Nathan Newman: Labor and other allied groups will be filing a number of amicus groups in defense of the California Access Regulation that is the subject of this blog post. For legal scholars interested in supporting this work, there will be one “Legal Scholars brief” that we are asking people to consider signing. See this link for a rough draft of that amicus. Please forward your thoughts, edits and your signature if you are willing to sign on to email@example.com.
This year the Supreme Court will hear Cedar Point Nursery v. Hassid, a case out of California which challenges a forty-five-year-old farm labor regulation. The petitioners are alleging that this regulation, which grants farm labor unions a limited right of access to an employer’s property, is unconstitutional on the grounds that it amounts to the government taking their property rights without compensation. This case potentially represents the culmination of a decades-long reactionary campaign against the ability of unions to access an employer’s property. It’s another legal gut-punch to the labor movement and part of a long history of judicial antagonism against workers.
Courts have rarely been favorable venues for workers and their organizations. Throughout American history, they have given primacy to employers’ property rights, while generally holding that workers rights to organize unions, bargain collectively and strike must give way – if they even recognized workers rights. Employers have sought, wherever possible, to avoid, diminish and crush organized labor. The courts have generally been disposed to help them do so. This dynamic was present during the early labor struggles in the 19th and early 20th century and continues to this day. One of the major ways employers and their rightwing political allies have sought to avoid having to deal with the potential of a unionized workplace is to prevent labor organizers from having any access to their workforce. This campaign continues – this year the now even-more-thoroughly-reactionary will hear Cedar Point Nursery v. Hassid, a case seeking to assert an exceptionally broad right to exclude agricultural labor organizers from farms.
The early history of labor organizing in the United States is one of violence and oppression. Where unions formed and attempted to strike for better pay and conditions, they were met with clubs and guns. The Great Railroad Strike of 1877 paralysed the country for over two months and resulted in over one-hundred dead – mostly striking workers at the hands of the National Guard and private militia such as the Pinkertons. Similarly the Pullman strike in 1894 was met with the deployment of the army and another thirty dead. Where the courts were involved, it was to issue injunctions against unions striking, sanction state or private violence against them, or to imprison and even execute their leaders.
In the late 19th century and early 20th century the courts continued to regard unions with extreme suspicion. Unions were still seen as illegitimate combinations of individuals seeking to distort the market. It was an absolute prerogative of the boss to fire the worker for attempting to organize a union. The very concept that a group of workers could have any enforceable rights in court was absurd – they were on the employers property, they had contracted with him, he could do as he wished! The main aim of organized labor, on a national political level, was to get not to establish rights in court, but rather to get courts out of the process entirely. This was the logic behind the 1914 Clayton Act’s attempt to remove labor from antitrust law and its declaration that “the labor of a human being is not a commodity or article of commerce.” Similarly, it was the logic of the 1932 Norris-LaGuardia Act, which prevented courts from issuing injunctions during labor disputes. Still, the concept that organized labor had rights was foreign to the judiciary.
The passage of the National Labor Relations Act (NLRA) in 1935 (and the fact it was upheld by the Supreme Court) was thus a legal revolution. At a national level workers now had enforceable rights against their bosses. It established broad, sweeping rights for employees to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The courts then further recognized that these rights could not exist in a vacuum – that there had to be some degree of campaigning, some degree of education of workers about their rights. Thus, in Babcock the court recognized that there had to be a balancing of an employers property rights with the employees organizational rights. Unions had to be able to access an employers property in order to communicate with workers.
Despite these advances the employer’s property rights still often trumped the rights of workers to organize. For example, in Darlington decided in 1965 the court confirmed the employer had the right to close a business purely out of spite for the workers’ decision to unionize. This ability of employers and managers to unilaterally shut down and relocate helped spur a flight away to areas more hostile to organized labor. At first, this pushed industries within the US to the South where segregation and fierce anti-Communism helped keep union activity to a minimum. Later, trade liberalization policies allowed large employers to seek even cheaper, even less likely to organize labor in third-world countries.
From the inception of the New Deal reactionary forces recognized that the federal judiciary would be a crucial battleground for pushing back the rights of workers. Successfully stacking the judiciary with arch-conservatives has resulted in the continual erosion of labor rights – and the union right of access in particular. In 1992 a newly conservative Supreme Court flush from both the Reagan and H. W. Bush presidencies severely restricted the ability of organized labor to access an employer’s property. In Lechmere, the Court held that unions did not have the right to access the property of an employer in general, and could only do in conditions where it was impractical to contact employees outside of work (for example employees on an oil rig). This is the current state of the law for most private sector employers and unions. However, because the decision in Lechmere turns on the interpretation of rights under the NLRA it does not apply to farm workers.
Farm workers, along with domestic workers were excluded from the rights most private sector workers were granted in NLRA. This exclusion dates back to the 1930s, when southern segregationists in Congress insisted that their Black farm workers must be denied these rights. Then, just as now, those who owned the land and reaped the profit recognized just what a threat organized workers posed to their position. Thus, the rights of farm workers are governed by state law. In 1975 California passed the Agricultural Labor Relations Act (ALRA) after courageous campaigning by Cesar Charvez and the United Farm Workers. This act granted farm workers rights similar to those under NLRA. The state also enacted a regulation under ALRA which granted farm workers unions a limited right of access to an employers property to talk to their workers. Specifically, the regulation allows union organizers to come onto an agricultural worksite for one hour before work begins, one hour during lunch breaks and one hour after work ends to speak to workers for 120 out of 365 days a year. It is this regulation that is being challenged in Cedar Point Nursery v. Hassid as a violation of fifth amendment property rights.
The vision of property rights expounded in the petitioners’ case is incredibly expansive. They argue that having to allow union organizers on their property, even for a very limited amount of time, amounts to the government taking their right to exclude people from their property, and is therefore unconstitutional. Let’s be clear, at the very least the Supreme Court thinks this vision has enough merit to hear this case. Should the Court actually agree with this view of property rights, the potential restrictions on government action are immense. It’s easy to imagine, for example, a regulation requiring owners to allow routine safety inspectors onto a worksite to be held unconstitutional under this approach.
Cedar Point may not go down as a deeply important case. It may go down as just another in a long series of steps to reassert the rights of property holders. It does, however, represent how the powerful in this country are using property rights in their attack on organized labor and other progressive forces. As progressives, socialists and leftists who work in and study the law it’s imperative that we undermine and subvert this vision of the law. We need to explicate an approach to the law that prioritizes the public good above the rights of the rich to maintain their own fiefdoms. Undermining the absolute exclusive rights to private property is the only way in which we can create the legal space to organize workers and build power.