The Supreme Court v. Cesar Chavez

In 1975 California, prodded by Chavez, gave agricultural workers the only labor rights they had. This week the Supreme Court took the most important of these away.

Cesar Chavez

The Supreme Court apparently can’t bear to stay on the right side of the mighty class struggle for a period longer than 24 hours. One day after it issued, in NCAA v. Alston, a strong defense of the labor rights of professional athletes who pretend to be amateurs so they can play on college teams, it issued an almost pathologically anti-union decision in Cedar Point Nursery v. Hassid.

(I wrote about the NCAA decision this week in the New Republic, arguing that colleges already lose a fortune on their athletic programs, especially within Division I, the top tier, and that they should eliminate these programs altogether and let talented young athletes play for reconstituted professional leagues, or new ones that fans inevitably will demand. You can read that column here.)

The Cedar Point decision applies to labor organizing the Constitution’s “takings clause,” which conservatives have used ever-more-fancifully in recent years as a blunt instrument to eliminate government regulations. The Fifth Amendment, which lists various things the government may not do—most famously, compel a defendant to testify against himself—ends with the words, “nor shall private property be taken for public use, without just compensation.” Thus the government may not seize, by eminent domain, your house without paying you what it’s worth. In 1922, Justice Oliver Wendell Holmes applied this theory to regulation: “If regulation goes too far, it will be recognized as a taking for which compensation must be paid.” That’s a responsible view when “too far” is defined by responsible people. But in recent decades the high court has used the takings clause to strike down wetlands protection, agricultural price supports, land-use planning, rent control, and even legal services for the poor. (Details here.) Never mind what these regulations protected the larger population from environmental degradation, homelessness, a fair trial, and, now, union representation. Those “takings” didn’t count.

At issue in Cedar Point was whether a California regulation granting labor organizers access to the giant farms where migrant workers ply their trade constituted a taking. This access is highly circumscribed. Organizers were allowed in at most 120 days per year, and had to provide advance notice to management and the state Agricultural Labor Relations Board (an agency created in 1975 as the result of lobbying from Cesar Chavez and his United Farm Workers union). Only two organizers were permitted on the site per work crew; if a work crew consisted of more than 30 workers, the union could send an additional organizer for every 15 additional members of that work crew. The organizers were allowed on the site up to one hour before work began, one hour during the lunch break, and one hour after work ended. Managers could throw the organizers off their property if their behavior became disruptive.

According to the complaint, the United Farm Workers did not follow these rules when they showed up in October 2015 to organize 400 farmworkers at Cedar Point Nursery in Northern California’s Butte Valley. Cedar Point, which grows strawberries, is not a great place to work, according to reviews on (“you work ten hour days six days a week”). The organizers did not provide advance notice of their arrival, the complaint said, and disrupted operations. Let’s grant, for argument’s sake, that this is true; that would mean that the UFW violated the California regulation granting them access, not that the regulation itself was unconstitutional.

A second party to the suit, Fowler Packing Co. in Fresno, employs closer to 3,000 workers who farm and ship grapes and citrus fruits. The reviews for Fowler Packing on are actually pretty good (“ambiente de trabajo muy tranquilo”). The company’s tolerance for labor unions, however, is not. Fowler Packing blocked the UFW from entering its property—whether the UFW was doing so in accordance with the California regulation is not spelled out in the decision—and challenged in court the union’s state-granted right to enter its property. California’s Ninth Circuit Court of Appeals called bullshit on that; the growers appealed to the Supreme Court; and, in a property-rights-mad decision by Chief Justice John Roberts, the court threw out the California regulation.

Roberts’ decision contains zero discussion of the struggles farmworkers have made over the years to acquire minimally decent working conditions. These conditions improved after Chavez and Dolores Huerta organized California farmworkers in the 1960s, then deteriorated again along with Chavez’s mental stability starting in the late 1970s. (I’ve related that sad story here.) The same inattention to the particulars of California farmworkers’ situation, I’m sorry to report, can be found in Associate Justice Stephen Breyer’s dissent. (I miss Ruth Bader Ginsburg!) So let me take a moment to fill you in.

In 1935 the federal government passed a law, informally known as the Wagner Act, that defined the rights that workers enjoy on the job to join a union or engage in other, less defined “concerted activity.” The law didn’t cover farmworkers—a necessary concession to Southern and Western agricultural interests to get the bill passed—and it excludes farmworkers to this day.

Chavez ingeniously turned farmworkers’ exclusion to his advantage when he organized his famous grape boycott. Under the 1947 Taft-Hartley amendments to the Wagner Act, unions were barred from conducting so-called “secondary” boycotts. A primary boycott is: Don’t buy grapes. A secondary boycott is: Don’t shop at the A&P because they carry grapes. The latter is a much more powerful tool, because the A&P doesn’t care that much whether it carries grapes or not. Secondary boycotts were so powerful a tool that Taft-Hartley, which rolled back labor rights and effectively halted growth in union membership, banned them. But because the Wagner Act didn’t cover agricultural workers, Chavez was free to conduct secondary boycotts to his heart’s content. As a result, he was able to bring California growers to their knees. It’s one of the great American stories.

In general, though, the Wagner Act’s exclusion of farmworkers was and remains a huge liability for organizing them. The only labor rights agricultural workers enjoy are those granted by the state of California under the 1975 law that created the state’s Agricultural Labor Relations Board and granted union organizers access to those giant farms. There really was no other way. When you’re organizing a factory, you can stand outside the factory and catch workers as they walk out. When you’re organizing a bunch of farmworkers, there’s noplace you can stand to catch their attention as they leave for the day.

Farmworker pay stinks. According to an analysis by the Economic Policy Institute, in 2014—the year the UFW showed up at Cedar Point—the average wage of a California agricultural worker was $17,445. That’s for long hours of back-breaking work in the hot sun. These workers could really use a union! But as of 2020, fewer than 2 percent of U.S. agricultural workers were represented by a union. The Supreme Court’s decision in Cedar Point will help keep it that way. It’s a foot placed firmly on the neck of the American farmworker. Really, it’s a disgrace.