Supreme Court: California Can’t Require Union Access To Employer’s Premises for Organizing
Its decision in Cedar Point Nursery v. Hassid thus concluded that a California regulation allowing unions to “take access” to an agricultural employer’s property constitutes a per se physical “taking” of property under the Fifth and Fourteenth Amendments.
California’s Union Access Regulation for Agricultural Employers
The case stemmed from California’s Agricultural Labor Relations Act of 1975 (“ALRA”). Enacted following sometimes violent struggles in the 1960s and 1970s to improve conditions of farmworkers, the ALRA established the right of agricultural employees to unionize and bargain collectively. Its preamble declared the ALRA’s purposes as seeking “to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations,” and “to bring certainty and a sense of fair play to a presently unstable and potentially volatile condition in the state.”
The ALRA created an elaborate scheme for secret ballot elections to determine union representation. It prohibited various actions by employers or unions as unfair labor practices. The law further established the five-member Agricultural Labor Relations Board (“ALRB”) to conduct and certify elections, investigate and determine unfair labor practice charges, and adopt regulations “as may be necessary” to carry out the ALRA. Later legislation required mandatory mediation in bargaining in some cases, with the ALRB’s mediators authorized to impose contract terms unilaterally in certain instances where employers and unions could not agree.
In 1975, the new ALRB adopted the access regulation at issue in Cedar Point. It expanded employees’ rights under the ALRA to include the asserted “right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.” The ALRB thus granted unions a “right to take access” to an agricultural employer’s property to solicit support for unionization.
To “take access,” a union had to file a written “notice of intention to take access” with an ALRB regional office, along with serving a copy on the employer. If a union did so, the employer had to allow that union’s organizers onto its property for up to three hours per day and 120 days in a calendar year. Organizers could enter an employer’s property for one hour before the start of work, one hour after the end of work, and up to one hour during employees’ meal breaks. Unions could send two organizers per work crew, plus another organizer for every 15 additional employees in a crew of more than 30 workers.
Different From the NLRA
In those respects, California’s rules were different from the federal National Labor Relations Act (“NLRA”) – which generally governs union organizing in the private sector. Since its inception in the 1930s, the NLRA excluded “any individual employed as an agricultural laborer.” 29 U.S.C. § 152(3). The NLRA and the federal National Labor Relations Board’s regulations have not mandated union access to an employer’s property for organizing. As the Supreme Court reiterated in Cedar Point, it has not required union access to employers’ property, “at least outside the unusual circumstance where their employees were otherwise beyond the reach of reasonable union efforts to communicate with them” – such as while living on company property. If not, employees have been “presumptively” within the reach of the union.
The California Rule Meets the Fifth Amendment
The case involved two growers visited by organizers from the United Farm Workers (“UFW”). Cedar Point, a strawberry grower, alleged that organizers entered its property at 5 a.m. without serving notice, called through bullhorns, and “distributed operations.” Fowler Packing, a grower and shipper of table grapes and citrus, blocked the UFW from entering. Neither employer had employees living on the premises.
Both situations led to unfair labor practice charges before the ALRB. Believing the circumstances would repeat, the employers challenged the access regulation under the Fifth Amendment. The federal district court rejected their suit, as did a 2-1 decision from the US Ninth Circuit Court of Appeals in San Francisco. The growers then appealed to the Supreme Court.
The Takings Clause of the Fifth Amendment, which applies to states through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.” The 6-3 decision in Cedar Point, by Chief Justice John Roberts, held that California’s access rule represented a per se physical taking under the Fifth Amendment. As a result, if California wants to require union access onto an employer’s property for organizing, it must provide employers with “just compensation.”
The Supreme Court held that “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred.” Physical takings of property may include such acts as the government using eminent domain to condemn property, taking possession without acquiring title, or occupying property. These “sorts of physical appropriations” are subject to “a simple per se rule: The government must pay for what it takes.”
The union access rule constituted a per se physical taking because it “appropriates a right to physically invade the growers’ property – to literally ‘take access,’ as the regulation provides.” The Court also described the regulation as giving union organizers the right to “physically enter and occupy” the property. It emphasized the basic legal rule that a fundamental element of private property rights is the right to exclude others from the property. According to the Supreme Court in Cedar Point, that right is not “an empty formality, subject to modification at the government’s pleasure,” and it “cannot be balanced away.”
The Supreme Court rejected the argument that the access regulation was merely a restriction on the growers’ use of their property. Such “regulatory takings” – such a zoning or prohibiting certain uses – have been upheld, unless a regulation “goes too far” under the circumstances. The Court held that the “essential question” to distinguish the two situations is “whether the government has physically taken property for itself or someone else – by whatever means – or has instead restricted a property owner’s ability to use his or her own property.”
The Supreme Court concluded that requiring growers to allow union organizers access to their property was a physical taking, not merely a regulatory restriction. Rather than simply “restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.” The Court further held that it made no difference that the regulation did not require permanent or continuous access, nor that the access did not amount to an easement under state law.
Different Take Than the California Supreme Court
The ALRB’s union access regulation was controversial from the start. In 1976, shortly after the rule’s adoption, the California Supreme Court upheld it in a 4-3 decision in ALRB v. Superior Court, 16 Cal.3d 392 (1976). At that time, the language and analysis were strikingly different from the new Cedar Point decision.
Back in 1976, the California Supreme Court recognized the ALRA as “a specific governmental policy of encouraging collective bargaining,” which it saw as “designed to benefit the public as a whole.” It noted that, while “efforts for social justice” resulted in many conflicts, “[i]n most the reasonable needs of the community as a whole have prevailed.” That court remarked, however, that in labor law, despite “the general retreat of recalcitrant forces, a strange rearguard action has been fought by those property owners who are also employers of labor.”
The California Supreme Court rejected growers’ property rights arguments. Instead, it relied on “the principle that all private property is held subject to the government to regulate its use for the public welfare.” That court further stated that “governmental power is not static but dynamic” and can be expanded to meet changed conditions, such as through “modern social legislation.” Thus, it held that “the access rule is not a deprivation of fundamental personal liberties but a limited economic regulation of the use of real property imposed for the public welfare.”
That language certainly reflects a much different era. Most clearly, though, the law concerning the physical or regulatory “taking” of property under the Fifth Amendment has developed further since 1976, particularly with the new Cedar Point decision.
To be sure, Cedar Point is a significant precedent. It clarifies and expands what constitutes a physical “taking” of property, with major implications for claims alleging governmental taking of property under the Fifth Amendment. The decision may lead to more such challenges and make them easier to bring in some cases. The full ramifications may not be known for some time. In addition, the issue of what amounts to “just compensation” often is a difficult question in “takings” cases.
The Supreme Court cautioned that Cedar Point should not “endanger” certain governmental activities involving entry onto private property. Among them, the decision should not generally change any distinction between trespass (or unauthorized entry) onto property and a “taking,” preclude requiring nuisance abatement or conducting a search “consistent with the Fourth Amendment and state law,” requiring property owners to cede a right of access as a condition of receiving certain public benefits, or conducting health and safety inspections. But, no doubt, the parameters will be litigated.
California agricultural employers may not have to be concerned about the union access rule any longer, but the final result is uncertain. Cedar Point did not hold that California cannot have such a rule but rather that the state must pay “just compensation” if it requires such access. Immediately after the decision, the ALRB suspended the regulation “until further notice.” The board announced it would no longer accept Notices of Intent to Take Access. As for existing notices in which the access period had not yet expired, “access pursuant to such notice shall no longer be deemed valid, effective immediately.”
At the same time, the ALRB’s Chair stated that the board “will be considering alternative avenues,” and is “committed to developing a process that meets the requirements of the high court’s ruling and continues to protect farmworker rights in light of agriculture’s unique circumstances.”
Beyond agriculture, Cedar Point may apply to employers who are, or may become, subject to actions that arguably may constitute a physical “taking” of property. In California, one possibility is under the Moscone Act and provisions that can result in employers having to allow picketing and other activities on their private property. More broadly, Cedar Point should foreclose any notion of possibly amending the NLRA or its regulations on the federal level to require access to employers’ property generally for union organizing purposes.
*In 2015, Mr. Carrol spoke on a panel with the ALRB’s Chair at the UC Davis School of Law’s full-day event, “Farm Labor and the ALRA at 40,” commemorating the 40th anniversary of the ALRA’s enactment.
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