May 7, 2018 4:29PM

California Picks on Fruit Pickers

Contract law is premised on a “meeting of the minds”: the common agreement between two parties to strike a mutually beneficial bargain to which they both assent. When unions and employers spar over wages and working conditions, they align their divergent interests in a manner that is fair to both parties.

California, alone among the 50 states, is dissatisfied with the fairness of this procedure. Instead, it requires a “mandatory mediation and conciliation process” for agricultural employers. Under this law, unions need not use their market power to negotiate with the employer. Instead, a state‐​sanctioned “mediator” drafts the agreement and imposes its terms on the parties. Such “contracts” dictate not simply wage rates or benefits packages, but the full spectrum of employment policies in a particular workplace.

And particularity here is the precise issue: the power of the state injects itself into the employment relationship not by setting general standards of conduct applicable to all employers, as with minimum wage laws or workplace safety standards, but by singling out employers for idiosyncratic treatment. This is not a “collective bargaining agreement,” but a mini‐​labor code applied to a single employer, who must now compete in the marketplace under a regulatory regime unique to him.

There are no safeguards to ensure that similarly situated employers or unions will be treated as similarly. Indeed, the law by its terms singles out a single industry for no discernable reason (other than possible rent‐​seeking by agricultural unions). Arbitrary burdens violate the core principle of the Fourteenth Amendment, which guarantees each of us the equal protection of the laws. A law for me but not for thee is no law at all.

An employer named Gerawan Farming challenged this imposition on its rights, but the California Supreme Court failed to recognize the constitutional principle at stake. Gerawan now petitions the U.S. Supreme Court to review its case. Cato has joined in a brief with the Pacific Legal Foundation urging the Court to take the case and require unions in California to vindicate their interests in the same manner as unions in the rest of the country: at the bargaining table.