On June 23, 2021 the Supreme Court held that a California regulation allowing union organizers a right to enter an agricultural employer’s private property to recruit and organize agricultural workers violated the employer’s federal constitutional rights. This decision is consistent with a string of other recent Supreme Court decisions that have narrowed labor unions’ power to recruit and fund their memberships. Although based on a regulation in California, this decision has national implications because it is rooted in the United States Constitution. Below we discuss the case and its potential scope.
Case History and Decision
The California regulation at issue in Cedar Point Nursery v. Hassid, 594 U.S. ____ (2021) had been on the books since 1975, and allowed union organizers to meet with workers on privately owned agricultural worksites for an hour before and after work and during lunch breaks for as many as 120 days a year. The dispute underlying the case arose in 2015 when the owner of Cedar Point Nursery found union organizers on his farm early in the morning without proper notice. After an unsuccessful challenge to the law before the California Agricultural Labor Relations Board, Cedar Point appealed all the way up to the Supreme Court.
The Supreme Court examined the California law and held that the regulation constituted a physical taking without just compensation, in violation of the Fifth Amendment of the Constitution. In his written decision for the majority, Chief Justice Roberts wrote that the California state regulation constituted a per se taking that required compensation because the regulation “appropriates for the enjoyment of third parties the owners’ right to exclude” others from its private property. The decision carves out some exceptions to this rule based on established common law but makes clear that state legislators will face an uphill battle when attempting to broaden union rights to organize on an employer’s private property.
Implications in California and Beyond
This decision will immediately affect California union organizers. It will severely hamper union efforts with migrant farmworkers, since many agricultural workers do not have Internet access or smartphones, and many reside in temporary living situations for the harvesting season, making it difficult for unions to organize them off-site. But the broader implications of this decision may be felt in labor relations across all states because it raises some questions about the scope of the established federal right of union members to access certain limited areas of an employer’s premises for organizing activities. Interestingly, Justice Roberts’ majority opinion does not mention the Court’s precedent in Central Hardware Co. v. NLRB, 407 U.S. 539, 545 (1972), which espoused the ability of union workers to access members in the workplace. But Justice Breyer cited Central Hardware Co. in his dissent as an example of a statute similar to the California regulation that the Supreme Court had upheld in its prior precedent. Justice Breyer’s dissent appears to raise a valid question as to whether the scope of rights espoused in Central Hardware Co. will be narrowed by this decision in the future. As a presage to the Cedar Point Nursery decision, the National Labor Relations Board in 2019 held that employers can prohibit nonemployee union representatives’ access to employer private property, including public spaces on the property. This NLRB decision reversed four decades of precedent allowing a public space exception for nonemployee union organizers. The Cedar Point Nursery decision is very much in line with the 2019 NLRB decision and confirms a trend in the Supreme Court to narrow union access to the workplace. The question many will now ask is, how would the Supreme Court reconcile Cedar Point Nursery with Central Hardware Co. in a case involving a state statute attempting to codify or broaden the principles espoused in Central Hardware Co.? There is bound to be plenty of litigation around this question in the future.
The Cedar Point Nursery decision also raises interesting questions about government access to the workplace for inspection and enforcement purposes. Although Justice Roberts’ decision carves out government access to private property under certain common law principles, it does so without any bright-line rules. The California Agricultural Labor Relations Board argued to the justices that the rationale underlying the Cedar Point Nursery decision would impact the ability of departments of labor and other employment watchdogs to make audit inspections for health and safety violations in the workplace. Justice Roberts answered this concern in his opinion by explaining that such inspections generally will not constitute impermissible takings under established common law principles. But the Cedar Point Nursery decision certainly raises a new potential avenue for employers to argue against overly aggressive attempts by unions and government agencies to access their property. The lower courts undoubtedly will define the breadth of this new avenue in the coming years.
As the repercussions of this decision are not yet clear, we will continue to monitor the forthcoming litigation and its potential impact on workplaces. If you have any questions about the recent decision or any other matter, please contact the authors of this article or any member of Venable’s Labor and Employment Group.