Is California’s Law Requiring Union Access to Agricultural Worksites Constitutional?

Jathan Janove, J.D. By Jathan Janove, J.D. June 11, 2019
Is California’s Law Requiring Union Access to Agricultural Worksites Constitutional?

A divided federal appellate court recently upheld a California regulation allowing union organizers to enter agricultural worksites.

The controversial California Agricultural Labor Relations Board regulation took effect more than 40 years ago and states that union organizers have the right to access agricultural employers' worksites in certain situations so that employees can receive information about their rights under the act.

A group of agriculture employers filed suit, alleging that the regulation, as specifically applied to them, violated the takings clause of the Fifth Amendment of the U.S. Constitution, which provides that private property shall not be "taken for public use without just compensation."

The employers also argued that giving union organizers access to their property constituted an unlawful seizure of their property in violation of the Fourth Amendment.

In Cedar Point Nursery v. Shiroma, a three-judge panel of the 9th U.S. Circuit Court of Appeals disagreed with the employers. The majority held that the regulation didn't violate the Constitution because union access is not "a permanent physical invasion" or an unlawful seizure that makes the employer's property "profoundly different." One judge dissented, arguing that the regulation constituted an unlawful taking of private property without just compensation.

The growers may request a review by all the judges of the 9th Circuit, according to documents filed with the court.

Permission to Access Property

The growers allege that union organizers "staged disruptive protests" on their property during the harvest season, according to documents filed with the court. Union organizers said they were protesting working conditions at the site, but the growers said several employees told newspapers that working conditions weren't an issue for them.

Although the union-access regulation has been challenged on constitutional grounds in the past, the growers sought a ruling that would apply to their specific circumstances. And they may ultimately seek review by the U.S. Supreme Court because the final ruling in this case will be significant for California employers covered by the Agricultural Labor Relations Act. If the 9th Circuit's decision stands, those employers will be required to give unions significant access to their private property multiple times a day for up to 120 days a year, even absent any showing of a special need for such access, said Ken Dolin, an attorney with Seyfarth Shaw in Chicago.

The act prohibits employers from interfering with these rights. "It is important to understand that any person acting either directly or indirectly in the interest of the employer, including HR professionals, [who prevent union employees from entering the property] may subject the employer to a claim for unfair labor practices under the act," noted Kate Brown, an attorney with Jackson Lewis in San Francisco.

"Any attempt to tamper with, control or dominate the free choice of employees as to whether or not they wish to organize or be represented by a labor organization is likely considered a violation of the act and therefore could constitute an unfair labor practice," she said.

Will the Ruling Stand?

Dolin predicts that if the Supreme Court reviews the decision, the 9th Circuit's ruling will be reversed. "The Supreme Court gives more weight to employers' private-property rights consistent with long-standing precedent on this issue," he said.

The "conservative-leaning high court, having just struck down … public unions' ability to charge compulsory union dues, could use this case to further support employer property rights and undercut union organizing," said David Wimmer, attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, a WorkLaw Network member in Beverly Hills.

The Supreme Court may hold that if union organizers have alternative means of access to employees, employers cannot be compelled to allow the organizers on their property, he predicted. "Employers should have the right to control who is permitted on and who is excluded from their private property," he said.

Brown believes it's difficult to predict what will happen if the Supreme Court agrees to hear the case. Justice Anthony Kennedy, who is now retired, provided a consistent swing vote on the Fifth Amendment's takings cases in the past, and his replacement on the court, Justice Brett Kavanaugh, has not issued extensive opinions on such cases. 


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