Advocates for workers’ rights are extolling the confirmation of Judge Ketanji Brown Jackson for appointment to US Supreme Court. Judge Jackson will replace Associate Justice Stephen G. Breyer who will retire from the Court at the end of the 2021-22 term. An opinion held in many legal circles is that the confirmation of Judge Jackson however is unlikely to fundamentally change the character of the Court, based on reviewing the filed Dissenting Opinions and other written Decisions of Associate Justice Stephen G. Breyer and Judge Ketanji Brown Jackson. This would not likely be the case were Judge Jackson to be replacing certain of the other Associate Justices.
The US Supreme Court in recent years with few exceptions has issued rulings displaying little encouragement for worker’s rights and hostility toward the working class in general. One recent example of this was the ruling last year in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, issued June 23, 2021. Take note that in Cedar Point Nursery, Associate Justice Stephen G. Breyer did not vote with six of the justices, vehemently disagreed with this Supreme Court Decision, and wrote a strong Dissent.
In this 6 to 3 decision, Chief Justice John G. Roberts delivered the opinion of the Court. Roberts was joined by 5 Justices: Clarence Thomas, Neil M. Gorsuch, Samuel A. Alito, Jr., Brett M. Kavanaugh, and Amy Coney Barrett. Justices Breyer, Sonia Sotomayor and Elena Kagan, disagreed with the decision, and Justice Breyer wrote the dissenting opinion, joined by Justices Sonia Sotomayor and Justice Elena Kagan.
Agricultural workers are among the most essential workers in this country, yet they historically and currently have the least legal rights, not even having a legal a right to be paid a minimum wage at at rate equal to that in other occupations.
In Cedar Point Nursery, a California Code which had been in existence for decades and which helped agricultural workers, was found by the US Supreme court to be in violation of the Fifth and Fourteenth Amendments. The Cedar Point Nursery is a strawberry grower in northern California. It employs over 400 seasonal workers and around 100 full-time workers, none of whom live on the property.
This long-term California regulation granted labor organizations a right to temporarily enter an agricultural employer's property in order to solicit support for unionization of the farm workers. Cal. Code Regs. Title 8, § 20900(e)(1)(C) (2020). The access was only temporary, three hours a day maximum, and for 120 days a year maximum.
Shocking to employee rights advocates nationwide, in this US Supreme Court 6 to 3 opinion, the Court ruled that this California Code’s regulation constituted a per se physical taking of the property violating Fifth and Fourteenth Amendments. The rational was that by allowing union organizers to enter the property at will to speak to farm workers for three hours a day, 120 days a year, it was an unlawful taking of property.
The Court held that the California regulation granting labor organizations a right to take access to an agricultural employer's property in order to solicit support for unionization, Cal. Code Regs. Title 8, § 20900(e)(1)(C) (2020), constituted a per se physical taking under the Fifth and Fourteenth Amendments. The Court held under this decades old regulation, the California government, by allowing union organizers to traverse it at will for three hours a day, 120 days a year, that it was tantamount to appropriating a right of access to the growers' property. Although the California regulation in dispute only covers California, the Court equated a right of union-organized access to property with an unlawful physical taking of property, which is a bad precedent to challenges that may arise in other states.
The California Agricultural Labor Relations Act of 1975 gives agricultural employees a right to self-organization and makes it an unfair labor practice for employers to interfere with that right. The California State Agricultural Labor Relations Board promulgated a regulation providing that employees have rights of self-organization. These rights include union organizers rights of to the premises of an agricultural employer for the purpose of meeting and talking with employees. and soliciting their support. Cal. Code Regs. Title 8, § 20900(e). Under the regulation, a labor organization may take access to an agricultural employer’s property for up to four 30-day periods in one calendar year. Cal. Code Regs. Title 8, § 20900(e)(1)(A), (B). Two organizers per work crew, and plus one additional organizer for every 15 workers over 30 workers in a crew, may enter the employer’s property for up to one hour before the workers begin work, one hour during the lunch break, and one hour after work.
Organizers may not engage in disruptive conduct, but are otherwise free to meet and talk with employees as they wish. Cal. Code Regs. Title 8, § 20900(e)(3)(A), (4)(C). Interference with organizers’ right of access may constitute an unfair labor practice, Cal. Code Regs. Title 8, § 20900(e)(5)(C), which can result in sanctions against the employer.
In summary, this 6 to 3 decision was a blow to the furtherance of the rights of agricultural workers, surely one of the most marginalized classes of workers in this country, when the Court held that under the California regulation, government had appropriated right of access to the growers' property by allowing union organizers to traverse it at will for three hours a day, 120 days a year. The Court rationalized that this regulation constituted per se physical taking under Federal Constitution's Fifth and Fourteenth Amendments because it granted labor organizations the right to take access to agricultural employer's property in order to solicit agricultural workers support for unionization.
It is hopeful for furtherance of employee rights, that Judge Ketanji Brown Jackson will be replacing Justice Breyer who voted against this decision and issued a strongly worded dissent.
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