Do Labor Union Organizers Have the Right to Enter California Farms?

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Strawberry Beds on Farm

A California regulation grants union organizers access to agricultural employers' property to speak with workers about the benefits of collective bargaining. The U.S. Supreme Court recently heard oral arguments debating whether the state regulation is constitutional.

The law allows unions to access agricultural properties for up to three hours a day for as many as 120 days a year. Two California 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 in Cedar Point Nursery v. Hassid 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," he argued before the Supreme Court on March 22.

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 told the court.

Does the Law Create 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, can more generally give parties the right to enter and use property that they do not own.

During oral argument, Mongan argued 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."

Thompson argued 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.

The justices raised concerns as to whether a ruling in favor of the employers would broadly exclude government health and safety inspectors from entering company property. Thompson responded that "reasonable government inspections are a background principle of property law that do not affect your property right or your right to exclude [parties from your property]."

Where to Draw the Line

The California regulation at issue 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.

Justice Elena Kagan asked Mongan where the line should be drawn. "What's the principle that would enable you to set a line someplace short of 365 days?" She asked if 200 days of access would always constitute a taking.

Mongan said the issues the justices raised about line-drawing won't occur frequently because "we don't have access regulations that are anywhere close to continuous."

Justice Amy Coney Barrett said both sides have line-drawing problems. She asked Thompson, "What if California had a regulation that permitted union organizers to go onto the property of your clients' one hour a day, one day a year?"

Thompson said it would constitute a taking. "If the government enacts a regulation that takes the property right for one hour a year with the admitted intent of occupying and appropriating that property, the compensation may be minimal, but it's still a taking."

Justice Brett Kavanaugh wondered why the employers didn't bring the claim under the National Labor Relations Act (NLRA). "I'm a bit mystified by some of the arguments here because it seems like you're asking us to reinvent the wheel, but it's not a new issue, at least as I see it."

In NLRB v. Babcock & Wilcox, the Supreme Court held that the National Labor Relations Board couldn't force an employer to allow union representatives to enter the company parking lot when other ways to reach employees were readily available.

"I think you probably prevail under that rule," Kavanaugh told Thompson. 

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