Trespassers Will Be Sued On Sight
When United Farm Workers organizers swarmed over a private farm in Dorris, Calif., during the 2015 harvest, it’s likely they had no fear of consequences. After all, unions enjoy a well-stocked basket of government-granted privileges and protections.
Almost a half century ago, the U.S. Supreme Court decided in the United States v. Enmons that unions could not be prosecuted under the federal Hobbs Act for violence committed while pursuing “legitimate” objectives. Unions have taken the ruling as permission to do as they please, and there’s usually no pushback.
A couple of years after the Enmons ruling, the California Agricultural Relations Board added to the unions’ catalog of unique advantages under the law, issuing “a regulation that promotes trespassing.” It allows union organizers to walk onto private property for one-hour periods before or after work hours, and during lunch breaks. Their only restriction is that they cannot be disruptive.
“Disruptive,” though, is exactly what United Farm Workers organizers were in late October 2015 when they created such a stir at the Cedar Point Nursery near the Oregon border that when employees arrived at work one morning, “many were concerned they had come upon the scene of a vehicle collision,” the Herald and News reported. According to the Pacific Legal Foundation, which represents the nursery, workers “were startled when union activists came into their place of business,” at 5 a.m., “yelling into bullhorns and demanding that the workers join the union.”
Some employees were “so scared and intimidated” by the “crowd” that had “burst through the doors and made their way through the building,” says the PLF, “that they left the property.” Most, however, “stayed on the job, uninterested in union membership.”
The nursery, where strawberry plants are grown for a national market, and the work often delicate, wasn’t the lone target. “For three straight days,” says PLF, “UFW organizers tried to storm Fresno-based Fowler Packing Company.”
The scene at farm entrance on the morning of Oct. 29, 2015, was apparently so disorderly state troopers had to stand “amid the fog coordinating traffic,” said the Herald and News of Klamath Falls, Ore.
The workers had good reason to feel as if they had been ambushed. Many said they had not been told that the union was coming. Owner Michael Fahner, too, had grounds to consider his business was the victim of a surprise attack. He said a notice of intent to organize was never filed, nor did the union petition for a strike.
The day after the incursion, an unfair labor practice complaint was filed against the union with the state Agricultural Labor Relations Board. But that was only the beginning. Cedar Point Nursery and the Fowler Packing Company eventually argued in federal court that by allowing organizers to trespass on private lands, California public policy authorizes the uncompensated taking of their property, a violation of the Fifth Amendment’s takings clause.
After slowly moving through the court system, the case is now at the U.S. Supreme Court. Later this month, justices will be asked to determine “whether government appropriation … for the benefit of favored third parties is a categorical taking.” Their decision is likely to have far-reaching effects. If the high court rules in the plaintiffs’ favor, as PLF lawyers expect, it will “make it clear that the Constitution doesn’t allow other states to follow California’s lead.”
Sympathizers are calling it a “union-busting” case. That claim lands somewhere between a narrative-promoting exaggeration and an outright lie. No matter how the court decides, unions will still have access to workers for the purposes of organizing. Ignore the diversionary tactics. The case is about a fundamental right, the freedom of land owners to “exclude wanted persons” from their property.
It’s also the case, though not a legal one, of a union stepping into a jobsite where it isn’t wanted. The employer-employee relationship Cedar Farms Nursery, where about 500 work during the peak of the season, is reportedly agreeable to all parties. Nursery employees have told the local media there is no “perception of labor law violations and they said they believe their employer treats them fairly.” Seasonal worker Manuel Torres said the union told employees “we need changes here because we were treated badly,” but, speaking through an interpreter, he added “I have never seen any of that here.”
Apparently conditions at the packing plant are also supportive of workers. According to the PLF, “its 2,500 employees and their families already enjoy workplace perks typically promised by labor unions: safe and immaculate facilities, free health care with an on-site health clinic, and free meals any time of the day at an on-site cafeteria.”
Even with all the help they get from government, unions can’t compete with that.
Kerry Jackson is a fellow with the Center for California Reform at the Pacific Research Institute.