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Commentary: Access rule violates farmers’ constitutional rights

Issue Date: March 10, 2021
By Tony Francois
Tony Francois
The U.S. Supreme Court has agreed to decide whether the California Union Access Regulation violates farmers’ constitutional rights. The case goes before the court later this month.
>Photo/Dave Kranz

Farming in California is kind of the Olympics of this way of life. Yes, the resources in California are abundant, but it's not like that makes it easy to prosper here. You might get by in a small way by just planting your seeds and waiting on the soil, sun and rain to do their thing, but really making it as a farmer in California demands more.

You face intense trade and other financial pressures. You operate in the most challenging regulatory environment for farming in the world. The cost and reliability of your energy inputs are crazy. And you face the nation's strictest state labor regulations.

If you embrace this, that says some important things about you.

First and most important, you are undaunted by difficulty, to say the least, and you are probably here for the long haul.

Second, you know that high-value crops, innovation and creativity are essential to thrive in this environment. You and your peers invest heavily in technology improvements and farming techniques that lead the world. The last thing you are is stuck in the past.

Third, to navigate the thicket of regulations, you need a compliance mentality and attention to detail.

And fourth, with all the regulatory restrictions you do face, you cherish every bit of freedom you retain to farm the way you know best.

On this last point, two old friends seem always to have a different opinion about how you should run your business and use your property: government and unions. When they team up on you … well, they can take away the freedom you have to farm the best way you know, and then it's time to fight back.

That is what Cedar Point Nursery and Fowler Packing are doing at the Supreme Court of the United States this month: challenging a state labor regulation that opens California farms to union organizers for three hours a day, 120 days a year. Under this regulation, union organizers disrupted operations on Cedar Point's property and intimidated employees with bullhorns while they worked.

The California Union Access Regulation is a fossil from a bygone era of limited communication technology. Remember the 1970s, the first time Jerry Brown was governor? No one had cellphones or the internet then, let alone ubiquitous smartphones and social media applications. In those dark ages, some workers may have been inaccessible to union organizers. But even then, most workers didn't live on-site and were still accessible in other ways.

Today, think about how many people you communicate with around the world, around town—even around your house—without being with them in person. We text, we email, we make mobile calls, we video chat, we message with social media apps.

Unions have every possible means of communicating with farm employees, none of which existed in the age of 8-track tapes. They have no need to invade your property to talk with your employees.

In an era of regulatory compliance, unions have less need than ever to trespass on private property to ensure that workers are being treated properly. And farmers have strong incentive to treat employees well in order to retain them, as well as to avoid the consequences of violating California's stringent employment laws.

Cedar Point Nursery owner Mike Fahner treats his employees well. But the United Farm Workers still invaded his property, disrupted his business and harassed his employees. Believing his constitutional rights had been violated, he sought legal remedy in the courts.

Represented by Pacific Legal Foundation, the plaintiffs argue that the access rule violates their constitutional rights under the Fifth Amendment.

The Takings Clause of the Fifth Amendment holds that when the government engages in any taking of private property for public use, the property owners must receive just compensation. When the government forces property owners to open their property, that is a taking that is owed just compensation.

I anticipate the Supreme Court will agree. And when it does, that will be a vindication for the constitutional rights of California farmers, who already face enough challenges without government regulators giving union organizers free run of their land.

It's time to remind California's agricultural bureaucrats and their union allies that private property rights still count.

(Tony Francois is a senior attorney for the Pacific Legal Foundation in Sacramento.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




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