WHO'S "TAKING" FROM WHOM?
The Supreme Court's Real Target - Farmworkers' Organizing Rights
By David Bacon
The Nation, 7/2/21
https://www.thenation.com/article/activism/cedar-point-organizing-labor/
Two farmworkers, who have left their jobs to work as organizers for the United Farm Workers, hold a meeting at lunchtime in a crew of strawberry pickers. They ask the workers what wage they think is fair for the work they do, and write the answers on a big sheet of butcher paper. This was part of the process of formulating the demands of the workers for the UFW organizing drive in the strawberry industry. 1997
OAKLAND, CA. Most of the media coverage of the recent Supreme Court decision about the farmworker access rule took for granted the way growers, and the court, defined this regulation. Jess Bravin in the Wall Street Journal called it "a regulation giving union organizers the right to visit farmworkers." The first line of the rightwing majority's opinion called it "A California regulation [which] grants labor organizations a 'right to take access' to an agricultural employer's property."
The court, and the growers, deliberately confuse the mechanism of the rule with rights, calling it a right of organizers or organizations. It is not. The right the rule implements is simple. 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. Rolling back this right, and the ability of farmworkers to organize against their endemic poverty, is the main target of the Supreme Court's attack.
At Cedar Point Nursery, the grower that filed the case heard by the court, the stakes were clear. Cedar Point is a nursery growing rootstock for commercial strawberry growers in Dorris, a remote town in northern California near the Oregon border. Hundreds of workers migrate here from their homes in central and southern California every year to harvest, trim and pack the plants.
In 2015 Cedar Point laborers walked out to protest conditions that included, according to worker Jessica Rodriguez, low wages, dirty bathrooms, and harassment from supervisors. They called the United Farm Workers, which sent organizers and implemented the access rule to talk with them on the property. The strike lasted for just a day, and after the strikers returned to their jobs, the organizing effort fizzled out. No election was ever held to begin the process of trying to get a contract.
What happened at Cedar Point is not unusual. The following spring in McFarland, in the densely farmed San Joaquin Valley, hundreds of workers struck the blueberry fields of Gourmet Trading over similar issues. Support for the organizing was overwhelming. They called the UFW after they'd struck. Once they returned to work the union filed for access, and workers held meetings after work at the ranch. They voted for the union a few days later, and today they work under a union contract.
In 1996, during a huge campaign to organize the strawberry industry in Watsonville, UFW organizers visited picking crews in dozens of fields. They taped butcher paper on the walls of the portapotties during lunchtime meetings. Strawberry workers wrote down their demands for raising some of the lowest wages in agriculture, and planned marches to the company offices to announce them.
In all these cases the access rule provided a way for workers to understand the organizing process and get help with it. Farmworkers need this because of the nature of the work. They are often migrants, working in a harvest in one area of California although they live in another. Cedar Point's workers lived hundreds of miles from Dorris, and during the work season slept in motel rooms and temporary housing. At Gourmet Trading some pickers traveled an hour or more to get to the field every day. Those distances make it hard-and sometimes impossible-for people to meet with union organizers at home.
According to the Handbook of the Agricultural Labor Relations Board, which administers California's Agricultural Labor Relations Act, "The access regulations ... are meant to insure that farm workers, who often may be contacted only at their work place, have an opportunity to be informed with minimal interruption of working activities."
Organizing a union is a collective process. Workers need to talk with each other about it. When the Pacific Legal Foundation argued the Cedar Point case in 2017 before the Ninth District of the U.S. Court of Appeals, and lost, its attorney Wen Fa asserted, "All the workers live in houses or hotels. Many have cellphones." Even if this were true, forming or joining a union at work is not like buying insurance. It is something people do together.
When organizing starts, and workers and the union announce they want an election, California's labor law says voting must take place within a week (within 48 hours if there's a strike) because the work only lasts as long as the season. The law requires the grower to furnish a list of names and addresses, but according to longtime organizer and former UFW vice-president Eliseo Medina, "those lists are notoriously bad."
During the UFW campaign to organize grape pickers for the huge VBZ grower in Delano, organizer Yolanda Serna talks to workers eating lunch under the vines. 2007
For the tens of thousands of H-2A guest workers brought to California by growers every year, home visits are often forbidden in their company housing. "H-2A workers are even more impacted by losing the access rule," Medina charges. "They don't have the legal right to organize and they're living in housing under the growers' 24-hour control."
But the most important thing about the access rule is that it demonstrates that the grower doesn't have absolute power at work. As an organizer for the UFW in the 1970s, and now as a journalist, I've seen what normally happens in the fields when workers start to organize. The crew foreman usually begins talking all day about how terrible the union is. He makes threats: if people join the union they're going to be fired or the company is going to move its crop production elsewhere.
Supervisors buzz around the field in their pickup trucks, watching everyone and making sure the workers know they're being watched. Very often the company hires union busters. They talk to workers, while they're working, as long as workers are in that field.
When union organizers come into the field at lunchtime, it shows that the union has power too, and can actually change things. That's really why growers hate the rule - because it's a limitation on their power. According to Medina, "It gives people confidence that change is possible."
Growers hated the rule because it made organizing easier, and called it a "taking." In an important way it is. Unspoken in the Supreme Court decision is that the real damage growers suffer is that farmworker wages will go up if organizing is successful. If the access rule helps them, it will cost the growers money.
That's not a respectable argument, though, even for rightwing lawyers and justices. Instead Pacific Legal Foundation attorney Wen Fa claimed (and the Supreme Court agreed) that access damages growers' property rights. Property rights trump the right of workers to organize. The majority opinion asserts, "No traditional background principle of property law requires the growers to admit union organizers onto their premises."
However, William Gould III, former chair of both the National Labor Relations Board and the Agricultural Labor Relations Board, says the access rule creates "a kind of public forum where everyone is congregated [that] is vital to union organizing efforts and our public policy which supports them."
He warns that the impact of the court's decision will not be confined to farmworker organizing. "One of the Courts casualties," Gould charges, "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."
While the PRO Act's passage is far from certain, the sights of growers and the Pacific Legal Foundation are also trained on a target closer to home. The Center for Constitutional Jurisprudence, another rightwing legal think tank that filed an amicus brief in the Cedar Point case, has been trying to knock out another key provision of California's farm labor law: mandatory mediation. Under this procedure, when workers vote for a union and the grower won't agree to a contract, the ALRB can appoint a mediator to craft a settlement. That can then be adopted by the board and imposed on the grower as a first contract.
The Center for Constitutional Jurisprudence supported a challenge to mandatory mediation by Gerawan Farming, Inc. In 2017 the California Supreme Court ruled against Gerawan, and held the process constitutional. It would not be unlikely to see growers take a challenge to the U.S. Supreme Court, seeking a decision upholding property rights. Ultimately, the Agricultural Labor Relations Act itself could either be taken off the books, or, as it was in the 1980s, rendered so weak as to be virtually useless to farmworkers and farmworker unions.
Aquiles Hernandez, an indigenous Mixtec farmworker, was a teacher and union activist in Mexico. He became an organizer for the United Farm Workers, and informed Mixtec-speaking workers at Gourmet Trading about their labor rights at lunchtime, during the access period. 2016
In 1975, when California passed the Agricultural Labor Relations Act, the UFW had a big impact on the wages and working conditions of California farmworkers. At that time the base wage in a union contract was about two and a half times the minimum wage. At the end of the 70s the union had 40,000 members paying dues at any given time. During those years, when I was an organizer for the union, we'd won elections to represent about 160,000 workers.
That's not the case today. In her defense of the access rule, ALRB attorney Victoria Shahid argued that it was not used often enough to impose a real burden on growers. In 2015, she noted, the UFW only used the access rule on 62 of California's 16,000 farms.
The decline in the union's strength has had a direct impact on the living standards of farmworkers. Today their wages hover around the minimum wage. Each year growers bring a mushrooming number of H-2A guest workers into the state's fields. "Even undocumented workers have more rights than H-2A workers," Medina charges. In this context, eroding the right of farmworkers to organize will have immediate consequences.
For the UFW and other unions trying to rebuild their strength in the fields, access has been a very important tool. On the ALRB's current agenda is an access request filed by the Teamsters Union to go onto the property of a cannabis grower. Workers in the industry today are organizing rapidly, and unions use access to go into the greenhouses to talk with them.
Losing the access rule is not going to stop farmworkers from organizing in California and elsewhere-or stop unions from helping them. That is the key to raising their wages and fighting this country's epidemic of rural poverty. Farmworkers were not helped, however, by the relative silence of the labor movement in the face of this attack on their rights. And because other workers need these same rights desperately-to access and mandatory mediation-the labor movement's silence hurts their efforts as well.
The Supreme Court may have made a predictable decision in the Cedar Point case. But a much more vocal and militant response can and should push hard to force its rightwing majority to retreat. Start with the question the court so artfully dodged - when growers enforce poverty for the country's 2.5 million farmworkers, who's "taking" from whom?
