Labor rights advocates in the International Lawyers Assisting Workers Network (ILAW), International Commission for Labor Rights (ICLR), Global Labor Justice–International Labor Rights Forum (GLJ-ILRF), and the Cornell Labor Law Clinic submitted an amicus curiae brief to the U.S. Supreme Court on February 12 in the case of Cedar Point Nursery v. Hasid. The case involves a key principle of farmworkers’ freedom of association.
In Cedar Point Nursery, California growers challenge as unconstitutional a 1975 regulation of the Agricultural Labor Relations Board that permits union representatives to meet with workers on the farms to discuss organizing and collective bargaining. The regulation balances the interests of workers and employers by limiting the time, place and duration of such access to ensure no undue effect on operations.
The ultra-conservative Pacific Legal Foundation, representing the growers, argues that the regulation is an unconstitutional per se “taking” of the growers’ property rights under the 5th Amendment to the U.S. Constitution. If affirmed, the decision would be a radical expansion of “takings” jurisprudence with significance beyond union access. It is clear that the growers aim to deny all access to workers at the agricultural workplace, including by government inspectors to address safety and health risks, wage theft, child labor and other potential labor violations.
Amici argue to the contrary that reasonable union access to farms has become customary international law which should guide the Supreme Court in the Cedar Point Nursery case. Indeed, the regulation itself is consistent with international labor law and the domestic labor laws of nations around the world.
The International Labor Organization’s Committee on Freedom of Association and the Committee of Experts have affirmed that farmworkers have a right to meet with union representatives at their worksite “with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization.” The Committee of Experts said, “Access by trade union officials for the purpose of carrying out lawful trade union activities should be readily permitted, provided that there is no interference with work being performed during working hours and subject to any appropriate precautions being taken for the protection of the property.”
Both bodies emphasize the importance of union access to help workers with problems of occupational safety and health, a particular concern in the Coronavirus pandemic. The brief also provides multiple comparative labor law examples of national legislation mandating union representatives’ access to the agricultural workplace, always with due regard for management’s property and operational interests.
The oral argument in the case is scheduled for March 22. On February 12, the Biden administration took a dramatic step announcing it was withdrawing the Trump administration’s brief supporting employers and would instead file a brief supporting the California regulation.
The text of the coalition’s brief is available here.