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September 17, 2021

Supreme Court rules against union recruiting on California farms

WASHINGTON — The Supreme Court ruled on Wednesday that a California regulation allowing union organizers to recruit agricultural workers at their workplaces violated the constitutional rights of their employers.

The vote was 6-3, with the court’s three liberal members in dissent.

Chief Justice John Roberts, writing for the majority, said that “the access regulation grants labor organizations a right to invade the growers’ property.” That meant, he wrote, that it was a taking of private property without just compensation.

The decision did away with a major achievement of the farmworkers’ movement led by Cesar Chavez in the 1970s, which had argued that allowing organizers to enter workplaces was the only practical way to give farmworkers, who can be nomadic and poorly educated, a realistic chance to consider joining a union.

The ruling was the latest blow to unions from a court that has issued several decisions limiting the power of organized labor.

The case, Cedar Point Nursery v. Hassid, No. 20-107, arose from organizing efforts in 2015 at Fowler Packing Co., a shipper of table grapes and citrus, and Cedar Point Nursery, which grows strawberry plants. They sued California officials in 2016, saying the regulation letting unions have access to their properties amounted to a government taking of private property without compensation. The growers lost in the lower courts.

The state regulation, issued in 1975 and unique in the nation, allows union organizers to meet with agricultural workers at work sites in the hour before and after work and during lunch breaks for as many as 120 days a year.

Supreme Court precedents draw a distinction between two kinds of government takings of private property — those that physically claim a property interest and those that impose a regulatory burden.

The first kind — “per se” takings — requires compensation even if the property interest in question is minor. But regulations amount to takings only where the economic effect is significant.

Roberts wrote that the access regulation was a per se taking.

“The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year,” he wrote. “Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the chief justice’s majority opinion.

In dissent, Justice Stephen Breyer wrote that “the majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical.” Justice Sonia Sotomayor and Elena Kagan joined his dissent.

The 9th U.S. Circuit Court of Appeals, in San Francisco, had ruled that the regulation did not impose a burden so heavy that it amounted to a per se taking because the access right was temporary and intermittent. Roberts disagreed.

“That position is insupportable as a matter of precedent and common sense,” he wrote. “There is no reason the law should analyze an abrogation of the right to exclude in one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364.”

Breyer responded that “this regulation does not ‘appropriate’ anything; it regulates the employers’ right to exclude others.”

The court has in recent years dealt blows to public unions and limited the ability of workers to band together to take legal action over workplace issues. At the same time, the court has been protective of property rights.

In 1956, the Supreme Court said a federal labor law, one that excludes agricultural workers, may allow union organizers to enter private property in limited circumstances.

“If the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them,” Justice Stanley Reed wrote for the court, “the employer must allow the union to approach his employees on his property.”

In a concurring opinion Wednesday, Kavanaugh wrote that the 1956 ruling “strongly supports the growers’ position in today’s case because the California union access regulation intrudes on the growers’ property rights far more” than the logic of that decision allowed.

Later precedents pointed in opposite directions. In 1982, the court ruled that requiring landlords to allow cable television companies access to their property was a per se taking of property requiring compensation, even if minimal. But in 1980, it ruled that a California Supreme Court decision that allowed high school students to gather petitions at a private shopping mall did not amount to a taking of the mall’s property.

Roberts wrote that the union regulation resembled the one requiring compensation for cable access, noting that the mall was open to the public to begin with.

“Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public,” he wrote.

Lawyers for the labor board had argued that a ruling for the businesses challenging the regulations could have vast implications for all sorts of government activities, including limiting the government’s ability to enter private property to conduct health and safety inspections of facilities like coal mines and pharmaceutical plants and to perform home visits by social workers charged with ensuring child welfare.

Breyer voiced similar concerns.

“Consider,” he wrote, “the large numbers of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto (or an ‘invasion of’) a property owner’s land. They include activities ranging from examination of food products to inspections for compliance with preschool licensing requirements.”

Roberts discounted those concerns.

“Government health and safety inspection regimes will generally not constitute takings,” he wrote, because the government may make such inspections a condition of granting licenses and permits.

Roberts did not say what should follow from the court’s ruling that the regulation was a taking. The companies had sought an injunction barring access, but the usual remedy for a government taking of private property is just compensation.

In dissent, Breyer wrote that the option of providing compensation remains open when the case returns to the lower courts.

“On remand,” he wrote, “California should have the choice of foreclosing injunctive relief by providing compensation.”

This article originally appeared in The New York Times.

Copyright 2021 The New York Times Company

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