Recent headlines have bulged with labor-related news. From election petitions to massive strikes, unions have been in the spotlight. Little noticed, however, has been a new law out of California, the Agricultural Labor Relations Voter Choice Act. Enacted on Labor Day 2022, the Act revolutionizes the election process for agricultural workplaces. It also pushes into questionable constitutional territory by forcing employers to waive their free-speech and property rights. Even more concerning, it could serve as a model for other industries and other states. It might even serve as a fount of ideas for federal policy makers, some of whom have already endorsed it.

The Act’s main thrust is to make union organizing as easy as possible. It does that in two main ways. First, it makes mail-in ballots the default. It establishes a new kind of election procedure, called a “labor peace” election, under which employers agree to an election by mail. If an employer chooses that option, it must also agree to stay neutral during the campaign. It makes its choice by filing a notice with a state board, which posts the employer’s name on a website. Any union can then visit the website, find eligible employers, and launch a campaign.

You may be thinking, why would any employer agree to this procedure? The answer is that the alternative is much worse—which brings us to the second big change. If an employer fails to sign up for a “labor peace” election, it becomes subject to a “non-labor peace” procedure. This procedure involves no election at all. Instead, a union gathers signatures on a petition. When more than half the employees sign the petition, the union gives a copy to the board. Then, if the board decides that the signatures are valid, it certifies the union immediately. There is no election, and many employees never get to express their opinions. The union simply becomes their representative with a bare majority of signatures.

In fact, the union can be certified without even that much. Under the Act, if an employer commits an unfair labor practice during a campaign or signature drive, the board decides whether the violation made the chance of a fair election “slight.” If so, the board directly certifies the union—no election or signatures required. The union becomes the employees’ exclusive bargaining representative without ever showing it has majority support.

As if that weren’t enough, the Act also ties employers’ hands in other ways. It effectively forbids employers from disciplining workers by presuming that any discipline during a campaign is retaliatory. An employer can rebut that presumption only with “clear, unmistakable, and overwhelming” evidence. If the employer wants to challenge an adverse a finding in court, it has to post a bond. And if it loses its challenge, it can be slapped with new civil fines running from $10,000 to $25,000. These fines can be imposed not just on a corporate entity, but on individual officers and directors. Wise employers, then, will think twice about imposing discipline at all—hardly a recipe for an orderly workplace.

Together, these procedures and restrictions offer unions a glide path to certification unlike any seen before. But they aren’t just novel; they also raise serious constitutional questions. Most obviously, the mail-ballot procedure forces employers to waive their free-speech rights. Again, to even qualify for the procedure, an employer has to stay “neutral”—i.e., to waive its right to oppose the union. It cannot speak about unions, unionization, or its preferred outcome. But for more than 80 years, the Supreme Court has recognized that employers have a First Amendment right to speak about those topics. The Court has also recognized that, under the doctrine of unconstitutional conditions, the government cannot force people to surrender their constitutional rights by putting conditions on their benefits. And nowhere does that principle apply more vigorously than in free-speech cases. As the Court said in Perry v. Sindermann, “[The government] may not deny a benefit to a person on a basis that infringes his interest in freedom of speech.” One could hardly imagine a procedure violating that principle more clearly than the Act’s campaign-speech waiver.   

But the Act doesn’t stop with free speech. It also forces employers to waive their property rights. Last year, in Cedar Point Nursery v. Hassid, the Supreme Court held that California could not force employers to give unions regular access to their property for organizing. The Court characterized the state’s access requirement as a forced easement. If the state wanted an easement, it could get one; but it had to pay “just compensation” under the Fifth Amendment’s Takings Clause. Yet now, the Voter Choice Act forces employers to waive that protection. To qualify for a mail-in election, an employer has to give unions access to the same extent it had to before Cedar Point.

That kind of forced waiver, however, clashes with the Court’s Takings Clause precedent. For decades, the Court has told states that they cannot extract an easement as a condition for property use unless the condition has an “essential nexus” with the use itself. California has made no effort to show such a nexus here; it cites no connection between mail-in elections and a forced easement. In fact, if workers are voting by mail, there seems to be even less reason to let the union onto the property at all. The only obvious reason would be for the union to visit workers and cajole them into casting ballots the “right” way. If there’s a better explanation, we’ll never know, because the state doesn’t even try to offer one.

On top of these waivers, the Act also threatens to punish honest but mistaken campaign speech. Remember, if an employer commits an unfair labor practice during a campaign, a state board can order the employer to recognize the union regardless of the vote. It can effectively impose a union on the workforce. And for that purpose, it defines unfair labor practices to include any “misstatement of law or fact.” It does not require a knowing misstatement; all it requires is a mistake. So for example, if an employer misquotes a source or gets a figure wrong, it can find itself facing an immediate bargaining order. One struggles to imagine a more effective way to chill campaign speech—which again, has long been recognized as protected by the First Amendment.

Radical as these changes are, they’ve gone largely unreported. Few in the press have picked up on the Act’s more aggressive changes. There are a few possible reasons for that. One is that the Act applies to only a single industry, agriculture, in a single state. Another is that the Act was passed in tandem with an even more controversial law, the FAST Recovery Act, which created a new sectoral council for California’s fast-food industry. Those factors may have helped the Act fly under the radar so far.

But labor practitioners shouldn’t let the Act slip by them. If nothing else, it may preview the type of labor reform we could see at the national level. Some of the Act’s more onerous provisions, including card-check procedures and bargaining orders, appeared in last year’s PRO Act. The PRO Act died in the U.S. Senate, mostly because Democrats failed to persuade Joe Manchin to toss out the filibuster. But if they ever get him to change his mind, or if they find the votes somewhere else, the PRO Act will no doubt return. It remains organized labor’s top legislative priority. And when it comes back, it could incorporate ideas from the Voter Choice Act. No less an authority than Joe Biden has endorsed the Act as a model of labor reform. So there is little doubt he would sign a similar law if it came across his desk.  

It is still possible, of course, that the Act never makes it that far. Again, its new procedures raise serious constitutional questions, which could cause it to run aground in court. But of course, for a court to weigh in, someone has to be brave enough to challenge it. And there’s no guarantee that anyone will be. Besides, even if it is challenged, the ideas it lays out are still dangerous. They show that some progressive lawmakers are willing to subordinate the constitutional rights of employers to the policy agendas of unions. Employers and their counsel should take note.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.