Supreme Court to hear challenge to union access to jobsites

The U.S. Supreme Court agreed Friday to consider a California regulation that gives labor organizers limited access to the private property of agricultural businesses, which growers said violated their rights under the Fifth Amendment.

In 2019, the 9th U.S. Circuit Court of Appeals rejected the growers' argument that the access regulation violated their Fifth Amendment rights. The court denied the growers' petition for rehearing in April, but also issued a dissenting opinion from eight justices who argued the majority misunderstood the property rights at issue.

The dissenting justices said the majority had created a circuit split by failing to give fair consideration to the growers' claims, disregarding Supreme Court precedent, and depriving property owners of their rights. Cedar Point Nursery, et al., v. Victoria Hassid, et al., 20-107.

"This is a very important case for the fundamental right to exclude, which is protected by the Fifth Amendment," said Wen Fa, an attorney with the Pacific Legal Foundation, which represents the growers. "I think it will have a nationwide impact on the ability of government to take easements without compensation."

Santiago Avila-Gomez, executive secretary of the Agricultural Labor Relations Board, the defendant in the case, said the board does not comment on pending litigation.

The access regulation in question was issued in the 1970s by the Agricultural Labor Relations Board - a body that was established under the Agricultural Labor Relations Act, a California statute that aimed to extend collective bargaining rights to agricultural workers who were exempted by Congress from the federal National Labor Relations Act. According to the regulation, labor organizers can access the property of agricultural businesses for three hours per day up to 120 days each year.

"The issue in this case is whether the government may avoid the Fifth Amendment's requirement to pay just compensation for the appropriation of an easement merely by placing time restrictions on the easement," the growers' July petition for review read. "Under the Ninth Circuit's decision, the government may eviscerate a landowner's right to exclude unwanted persons from her property, so long as it does not require her to grant access all day, every day... If broadly accepted, this extraordinary treatment of the right to exclude would significantly weaken property rights and greatly expand the ability of governments at all levels to extract easements on demand."

On Friday, Fa said while the case touched on labor issues, the fundamental issue at hand is property rights. "We would have the same claims if there were any unwanted strangers that were given access by law to access... private property," he said.

Fa added labor organizers could have easily reached the growers' workers without physically accessing their property. "This is the year 2020," he said. "The workers not only live off property, they live in hotels or their own houses, they listen to a lot of the radio channels and advertisements, and the union has in fact paid for either radio advertisements and social media."

"It's not a matter of unions talking with the workers, the unions can and they do talk with the workers," he added. "It's a matter of where the unions talk to the workers... should unions be required to talk to the worker in the same manner that anybody else would talk to the worker, which is by phone or through radio ads or social media ads or at their homes or hotels?"

Noting the April dissent in the 9th Circuit Court of Appeals also questioned whether labor organizers need access to private property, since modern technology gives organizers easier access to workers than when the access regulation was first issued 40 years ago, the Department of Justice pushed back in its opposition brief.

"Contrary to petitioners' view, this Court has never held - or even suggested - that a government regulation of the kind at issue here results in a per se taking of property," said the brief, which was filed in October. "Indeed, the Court has recognized a similar limited right of access under the NLRA."

"There is no indication that the access regulation poses a significant problem for California farms," the brief added. "The regulation has been in place for more than four decades... Although there are more than 16,000 agricultural employers in California, petitioners' statistics indicate that union organizers invoked the regulation to access the property of just 62 employers in 2015."