California’s discriminatory approach to agriculture regulation is in a class of its own

With drought, pests and labor shortages, California farmers have plenty to worry about. But the legal challenge they face from the California Agricultural Labor Relations Board and its euphemistically named mandatory mediation and conciliation process may be the most menacing threat of all.

The terms "mediation" and "conciliation" evoke visions of a voluntary collective bargaining process where two sides work together to achieve a compromise they both can live with. But not in California, where "mediation" and "conciliation" mean a collective bargaining agreement is written by a state-appointed official and imposed on farmers and their workers without their consent.

Few agricultural companies have suffered more at the hands of the board and its compulsion scheme than Gerawan Farming, Inc., a family-owned company that has been growing grapes and stone fruit in California's San Joaquin Valley for over 80 years.

An industry leader, Gerawan employs over 5,000 farm workers each year and pays them the highest wages in the industry. Prior to the board's meddling, Gerawan also offered paid vacation, retirement bonuses, private school tuition for its workers' children, and flexible policies allowing employees to work elsewhere in the off-season without losing their seniority at Gerawan.

That all changed in 2013, when the United Farm Workers union showed up at Gerawan after a 17-year absence and invoked California's compulsion scheme to have the board write a new collective bargaining agreement. Although neither Gerawan nor its employees signed off on the agreement, they are forced by law to follow it.

The new agreement makes life worse for everyone involved -- except the union. Gerawan was forced to raise its already industry-leading wages without any consideration of its financial ability. Even with the pay raise, Gerawan's farm laborers now take home less money, because they must hand over three percent of their gross pay to the union. Employees who refuse to pay must be fired on the spot. Those who work elsewhere during the off-season lose their seniority, dropping 15-year veterans behind first-year rookies. Worst of all, employees are forbidden from striking, killing the most effective tool farm workers have to protest their working conditions.

But here's the truly remarkable part: Each of these requirements applies only to Gerawan and its employees. No other California agricultural company, no matter how similarly situated, is forced to suffer under these same regulations.

The individualized regulations imposed on Gerawan are a clear violation of the "class-of-one" doctrine set forth in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). In that case, the U.S. Supreme Court held that the arbitrary burdening of individuals as individuals, i.e., as a "class-of-one," violates the equal protection clause of the Fourteenth Amendment. Unconstitutional class-of-one regulation occurs when: (i) the government treats a person or business differently from other similarly situated persons; (ii) the differential treatment is intentional; and (iii) the differential treatment lacks any rational basis.

In Olech, the city demanded a 33-foot easement to connect the Olech family's property to the municipal water supply, double what was required from their neighbors. The Supreme Court held that this irrational and arbitrary singling out of one family over others similarly situated conflicted with the purpose of the equal protection clause to "secure every person within the state's jurisdiction against intentional and arbitrary discrimination."

The idea that government regulations should apply to everyone, rather than singling out specific people or businesses, dates from long before the Fourteenth Amendment and is woven into our very concept of liberty. From Cicero to Blackstone to the U.S. founders, special treatment for select individuals has always been condemned as a threat to government legitimacy and the freedom of its citizens.

None of this appears to bother California officials. In the board's compulsion scheme, California has embraced and codified just such a discriminatory, arbitrary, and unconstitutional practice our forefathers warned us against.

Gerawan is fighting back against the board's bullying by asking the U.S. Supreme Court to take its case (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., 2017 DJDAR 11179 (Cal. 2017). The court should consider the far-reaching implications if the mandatory mediation and conciliation scheme is left in place.

If it is, the wall Olech built between individuals and those in power may be bulldozed by governments emboldened by their newfound power to single out anyone they don't like. While California farmers are the most recent casualty of state overreach, without the protection of the class-of-one doctrine, they certainly won't be the last.