California is known as one of the most employee- and organized labor-friendly states in the country. Its progressive laws often lean in favor of protecting employee rights, including the right to organize. One such law is a regulation that allowed labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Agricultural employers were required to allow union organizers onto their property for up to three hours per day, 120 days per year. This was the law under scrutiny in Cedar Point Nursery v. Victoria Hassid, et al.
Under California’s regulations, two organizers per work crew may enter an agricultural employer’s property for up to one hour before work, one hour during a lunch break, and one hour after work to meet with employees. Employer refusal to allow access constitutes an unfair labor practice. The issue to be determined by the Court was whether the law constituted a per se physical taking under the Fifth and Fourteenth Amendments.
Under the Takings Clause, when the government acquires private property for a public use, there is an obligation on the government to compensate the property owner. The Court made very clear that despite the fact this was only a regulation limiting the owner’s use of its property, “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred.” The Court found the California regulation “appropriates a right to invade the growers’ property” and constituted a physical taking. It was not swayed by the argument that the taking was only temporary.
The Court made sure to note that unlike some other cases where groups were allowed access to property that was open to the public, the properties owned by the appellants in this case were restricted from public access entirely. The Court found that the regulation granted “a formal entitlement to physically invade the growers’ land,” and amounted to a “simple appropriation of private property.”
While this decision may sound like a victory for employers across the country, employers need to realize that the scope of this decision is very limited. The farms to which unions were granted access were private property, to which members of the public were not granted access. This differs greatly from other employer properties that are often the targets for union organizing campaign. In addition, those of you who are public employers definitely cannot rely on this decision to provide any protection for your workplaces, as you surely will not be able to accuse the government of taking your property.
However, for those employers who were either subject to the California law, or other similar laws that impact an employer’s ability to keep organizing limited to certain publicly-accessible areas of the property, this decision could serve as the fuel needed to keep non-employees out. Obviously, before taking any steps that could lead to an unfair labor practice charge, you should consult your attorney for an individual assessment. If you, or your organization, need assistance with addressing organizing efforts at your workplace, contact Wiley Reber Law, for labor experience that works.