A Recent Supreme Court Decision Impacts Union Organizing for Agricultural Workers in California
July 9, 2021
By Gerard Morales and Ashley R. McLachlan
In a 6-3 decision, the United States Supreme Court ruled in favor of two fruit growers who challenged a California state regulation which granted union organizers limited access to agricultural employers’ properties for the purpose of promoting union efforts. The Court’s recent decision in Cedar Point Nursery v. Hassid held that the regulation which allowed unions to “take access” to an agricultural employer’s property amounted to a per se physical taking under the Fifth and Fourteenth Amendments.
California Code of Regulations title 8, section 20900(e) provides that the “rights of employees under [California] Labor code Section 1152 include[s] the right to access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support . . . .” Access is limited and available only to “one labor organization for no more than four (4) thirty-day periods in any calendar year.”1 Further, notice is required before entry to the property.2
Arising out of the California Agricultural Labor Relations Act of 1975 (“ALRA”), the regulation’s purpose is to allow labor organizations easier access to agricultural workers to promote unionizing efforts. Under California Labor Code section 1152, agricultural employees have the right to self-organization, to “form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities.’”3 ALRA aimed to fill the gaps left under the Fair Labor Standards Act and National Labor Relations Act (“NLRA”) that exempts agricultural workers from those statutes’ benefits.4 The regulation provides that “unions seeking to organize agricultural employees do not have available alternative channels of effective communication. Alternative channels of effective communication which would have been found adequate in industrial settings do not exist or are insufficient in the context of agricultural labor.”5 For this reason, section 20900(e) proscribes narrow circumstances when union organizers, upon prior notice, can enter an employer’s property during 120 days a year, three hours a day: one hour before work hours, one hour at the lunch hour, and one hour after work hours.6
Cedar Point Nursery v. Hassid
In 2015, two separate incidents between the United Farm Workers union and two fruit growers in Northern California prompted the Court’s recent decision. In one instance, Fowler Packing Company barred the union from entering its property to campaign, causing the union to file an unfair labor practice charge against the employer. In a separate instance, the union entered the property of another grower, Cedar Point Nursery, without giving prior notice causing Cedar Point to file a charge against the union for accessing its property without notice.7 Thereafter, the employers together filed a complaint in federal district court against the California Agricultural Labor Relations Board (“ALRB”) seeking an injunction and declaratory relief, arguing the regulation granting the union access was an unconstitutional per se taking under the Fifth and Fourteenth Amendments.8 The District Court denied the growers’ motion for preliminary injunction and granted the ALRB’s motion to dismiss and the Ninth Circuit, in a divided panel, affirmed.9 The Supreme Court granted certiorari.
Justice Roberts penned the majority decision, joined by Justices Kavanaugh, Gorsuch, Thomas, Alito, and Barrett. The Court framed the issue as whether the “access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments.”10 The Court held that the regulation was a per se physical taking requiring compensation because the regulation “appropriates for the enjoyment of third parties the owners’ right to exclude” others from their property.11 “Whenever a regulation results in a physical appropriation of property, a per se taking has occurred” and just compensation is required.12 Whether the taking was temporary or permanent does not matter, rather to the majority the “essential question” is to determine “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 own property.”13 According to the majority, the regulation grants a “right to invade the growers’ property and therefore constitutes a per se physical taking.”14 Accordingly, unless the state provides just compensation to the agricultural employers, the regulation will not be enforced.
In contrast, the dissent considered the temporary limits to access to be a critical factor in the analysis.The dissent asserted that the regulation “does not ‘appropriate’ anything” rather “it regulates the employers’ right to exclude others.” 15 Authored by Justice Breyer and joined by Justices Kagan and Sotomayor, the dissent critiqued the majority’s rule as creating a “new system” for takings’ issues.16 According to the dissent, “virtually every government-authorized invasion is an ‘appropriation,’” calling into question the government’s authority under existing statutes that grant temporary access to property for limited purposes, such as inspections for licensing or health and safety reasons.17
The majority provided some carve-outs to taper the possible impacts highlighted by the dissent. According to the majority the following would not be per se “takings” under the Court’s “new” system: (1) “[I]solated physical invasions” as those continue to be “assessed as individual torts rather than appropriations”; (2) “government access that is ‘consistent with longstanding background restrictions on property rights,’ including ‘traditional common law privileges to access private property’”; and (3) where “the government . . . require[s] property owners to cede a right to access as [a] condition of receiving certain benefits.”18 Justice Breyer responded to each exception in turn. Notably, he mused that “labor peace” is a benefit under the majority’s third exception, “at least in the view of the elected representatives” whom enacted and upheld ALRA.19 Thus, until future litigation, the contours of these exceptions remain unclear.
Impact on Unionizing Efforts
Despite being grounded in constitutional takings doctrine, this case greatly affects California agricultural worker’s unionizing efforts. The majority rejected the Board’s attempts to liken this dispute to those addressed in past precedent under the NLRA. In both N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and later in Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 545 (1972) the Supreme Court assessed certain rights under the NLRA in tension with employer property rights. Both of the aforementioned cases acknowledge the principle that in specific circumstances in the context of union campaigns, property rights may need to “yield” to the organization rights.20 Indeed, Justice Breyer references Central Hardware Co. for “an example federal statute that did not effect a per se taking” which was almost “identical” the California Regulation providing “access . . . limited to (i) union organizers; (ii) prescribed non-working areas of the employer’s premises; and (iii) the duration of the organization activity.”21
However, in Cedar Point Nursery the majority dismissed, at least the decision in Babcock, as not applicable because it did not involve a takings claim. The majority opined “[w]hatever specific takings issue may be presented by the highly contingent access right we recognized under the NLRA, California’s access regulation affects a per se taking[.]”22 Accordingly, the principle, that property rights in certain circumstances “yield” to organization campaigns, did not play a role in the majority’s decision in Cedar Point Nursery. Further, Justice Kavanaugh wrote a separate concurrence to address Babcock which he urged supports the majority’s decision. Justice Kavanaugh recognized that under Babcock, NLRA union organizers may access employer’s property only when “needed,” which in his view, usually occurs where the employees live on the employer’s property and the union has no other means of communicating with the employees.23 According to Justice Kavanaugh, California’s regulation intruded the property rights “far more than Babcock allows.” His concurrence did not refer to Central Hardware Co.
Effectively, the burden will be on union organizers to access agricultural workers outside of their employers’ properties. One possibility may remain—pre-petition employee address lists. Under California Regulation section 20910, “any labor organization that has filed within the past 30 days a valid notice of intent to take access . . . may file with the appropriate regional office of the Board two (2) copies of a written notice of intention to organize[.]” A “Notice of Intent to Organize” or “N.O.s” is an avenue to obtain pre-petition employee lists, similar to the NLRA’s counterpart—"excelsior lists.” However, like obtaining excelsior lists, before gaining access to employee information, the labor organization needs support.24 Under the regulation “the notice must be signed by or accompanied by authorization cards signed by at least 10 percent of the current employees of the designated employer.”25 “Within five days from the date of filing of the notice of intention to organize, the employer shall submit to the regional office an employee list” and “upon receipt of the list, the regional director shall determine if the ten percent showing of interest requirement has been satisfied, and, if so, shall make available a copy of the employee list to the filing labor organization.”26 It’s unclear whether Cedar Point Nursery will have an impact on N.O.s and access to pre-petition lists. However, N.O.s and pre-petition lists could provide one alternative if still available, for union organizers seeking to reach California agricultural workers.
- Cal. Code Regs., tit. 8, §20900(e)(1).
Cal. Code Regs., tit. 8, §20900(a).
- See 29 U.S.C § 213; 29 U.S.C. § 152(3).
- Cal. Code Regs., tit. 8, §20900(c).
- Additionally, under the regulation union organizers may only enter for the purpose of soliciting support from employees, enter areas where employees regularly congregate before or after work or eat lunch, and cannot be disruptive of the employer’s property or business. Cal. Code. Regs., tit. 8, §20900(e)(3)–(4).
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2069–70 (2021).
- Id.; see also Cedar Point Nursery v. Gould, 2016 WL 1559271 (E.D. Cal. Apr. 18, 2016); Cedar Point Nursery v. Shiroma, 923 F.3d 524 (2019).
- Cedar Point Nursery, 141 S. Ct. at 2069.
- Id. at 2072.
- Cedar Point Nursery, 141 S. Ct. at 2081 (J. Breyer, dissenting).
- Id. at 2088.
- Id. at 2081; see also id. at 2887–88; (listing various statutes sanctioning limited access to private property for specified purposes).
- Cedar Point Nursery, 141 S. Ct. at 2078–79; Id. at 2088 (J. Breyer, dissenting).
- Id. at 2089.
- N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105 (1956); Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 544 (1972).
- Cedar Point Nursery, 141 S. Ct. at 2084.
- Id. at 2077.
- Id. at 2080–81 (J. Kavanaugh concurring).
- See generally Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966). Under the NLRA, an election petition—the equivalent to the N.O. under the ALRA—must be supported by an adequate “showing of interest,” which, as a practical matter, requires that the petition be supported by authorization cards signed by at least 30% of the employees in the group the union seeks to represent.
- Cal. Code Regs., tit. 8, §20910.
- Cal. Code Regs., tit. 8, §20910.
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