High Court Rules Against California Law Giving Unions Access to Farms

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Sunrise over strawberry farm

A California regulation that grants union organizers access to agricultural employers' property to speak with workers about the benefits of collective bargaining is unconstitutional, according to a U.S. Supreme Court ruling.

The state's law allows unions to access agricultural properties for up to three hours a day for as many as 120 days a year. In Cedar Point Nursery v. Hassid, two California farm businesses—a strawberry plant producer and a fruit distributer—argued that the state regulation violates the "takings clause" of the Fifth Amendment to the U.S. Constitution, which states that private property shall not "be taken for public use, without just compensation."

The employers argued that state lawmakers gave unions an easement—or a right to use their property for a specific purpose—without providing compensation.

"If the government wants to take an access easement over private property, it has to pay for it," said Joshua Thompson, an attorney with Pacific Legal Foundation in Sacramento, Calif. "Failure to pay just compensation violates the takings clause."

California Solicitor General Michael Mongan argued that the regulation is narrow and doesn't amount to a taking under the Fifth Amendment. The regulation "authorizes only a limited number of organizers to enter petitioners' farms for the sole purpose of speaking with employees at nonwork times during certain periods of the year for no more than three hours a day and subject to detailed restrictions," he said.

The high court sided with farm owners in a 6-3 decision on June 23. "The access regulation appropriates a right to invade the growers' property and therefore constitutes a per se physical taking," wrote Chief Justice John Roberts Jr. for the majority. He added, "The right to exclude is one of the most treasured rights of property ownership."

In light of the ruling, agricultural employers should clearly delineate what property is theirs to ensure that they can establish their property lines for purposes of union access, said Michael Droke, an attorney with Dorsey & Whitney in Seattle and Palo Alto, Calif.

What Is an Easement?

The unions' access to employer property in this case doesn't fit the traditional definition of an easement—which usually creates a physical pathway on someone's private property for a particular purpose. For example, the government may compensate a homeowner on beachfront property to create a pathway for public access to the ocean. A utilities company may also be granted an easement to install and maintain powerlines on private property.

An easement, however, also can more generally give parties the right to enter and use property that they do not own.

During oral argument, Mongan argued for the state that the unions' access to the employers' property in this case is "not a classic easement." He noted that "the access is not to a particular pathway or parcel; it's to the employees, where they are."

The regulation allows unions to enter agricultural employers' property for up to three hours a day, for no more than 30 consecutive days, four times a year. The time is limited to the hour before the workday begins, lunch breaks and the hour after the workday ends. The union is required to send notice to the government and the employer before entering the property.

Mongan emphasized that the time is limited, but if the California government provided unions the right to access the property at all hours and on every day of the year, the regulation would definitely be a taking under the U.S. Constitution.

Thompson argued for the farm owners that the California regulation interferes with property owners' constitutional right to exclude people from their property, which he said was "the most fundamental property right." He asserted that the union organizers could reach workers elsewhere because they did not live on company property.

Ruling Limited to Agricultural Employers

"On-farm agriculture operations have been excluded from federal labor law since 1935," Droke explained. Lawmakers in the Golden State filled the gap by creating the California Agricultural Labor Relations Act (ALRA) in 1975.

Droke noted that the ALRA differs from federal law in several key areas. Most significantly, the act gives union organizers the right to physically access the farm property in order to solicit support for unionization.

The Supreme Court majority found that the access regulation "amounts to simple appropriation of private property." The court said, "Unlike a law enforcement search, no traditional background principle of property law requires the growers to admit union organizers onto their premises. And unlike standard health and safety inspections, the access regulation is not germane to any benefit provided to agricultural employers or any risk posed to the public."

The Supreme Court reversed and remanded a ruling from the 9th U.S. Circuit Court of Appeals, and California lawmakers will ultimately have to revise or retract the law. 

Thompson said the decision "affirms that one of the most fundamental aspects of property is the right to decide who can and can't access your property."

Justices Samuel Alito Jr., Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas joined Roberts in the majority ruling.

Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor dissented. "In my view, the majority's conclusion threatens to make many ordinary forms of regulation unusually complex or impractical," Breyer said.

Droke noted that the case applies only to agricultural employers. Nonagricultural employers are governed by the federal National Labor Relations Act (NLRA). "The NLRA allows employers to prohibit nonemployee access to their property," he said.

So what does the ruling mean for farm owners in California? "Agricultural employers should immediately review their policies and practices regarding on-farm access," Droke said. Access should be limited to employer-approved business, and policies should specify who is authorized to allow access, he recommended.

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