In a 6-3 decision written by Chief Justice Roberts, the U.S. Supreme Court held that California’s Code of Regulation which allows union organizers to access privately-held agricultural property constitutes an unlawful “taking” under the Fifth and Fourteenth Amendments to the Constitution, for which property owners may then seek just compensation. Justice Kavanaugh filed a concurring opinion, and Justice Breyer filed a dissenting opinion which was joined by Justices Sotomayer and Kagan. Cedar Point Nursery, et al., v Hassid, et. al.. No. 20-107 (June 23, 2021)
California’s Labor Code §1152 provides agricultural employees with 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 for the purposes of collective bargaining or other mutual aid or protection. This statute also provides that agricultural employees have the right to refrain from these activities as well. This law was enacted in 1975. In an effort to assist agricultural employees with the right to organize and to further California’s policy to encourage such rights, California established a Regulation in 1976 that granted access to agricultural property to union organizers in order to permit them to meet with employees and attempt to solicit their vote for representation.
California Code Regulations Title 8 §20900(e)(1)(C) provides that organizers interested in representing agricultural workers must send a Notice of Intent to Take Access or a Notice of Intent to Organize to an agricultural employer to access the agricultural property. This right is available to any one labor organization for no more than four 30-day periods, or 120 days in any calendar year. It is intended to allow the organizers to meet and talk with employees and solicit their support for the union. After giving this notice, organizers are then permitted to access the agricultural property for 1 hour before work, 1 hour at lunch, and 1 hour after work. Two organizers are permitted if the crews have more than 30 workers, and for each group of 15 additional workers, another organizer may be permitted this access. The organizers are not permitted to disrupt the property or operations, injure crops or machinery or interfere with the process of boarding buses. Additional requirements are placed on agricultural properties where citrus is grown.
The Supreme Court held that California’s Regulation was equivalent to a situation where the government so restricts a property owner’s right that it amounts to a “taking.” The Court held that allowing agricultural union organizers to invade private property and a right to have these organizers physically enter and occupy the grower’s land for 3 hours per day for 120 days per year disrupted the property owner’s rights. Further, the Court found that the right to exclude persons from private property is a fundamental element of a property owner’s rights, and restricting this right to allow even an easement for union organizers resulted in a per se physical taking under the Fifth and Fourteenth Amendments.
In his 17-page dissent, Justice Breyer argues that this Regulation only regulates the agricultural property owner’s rights, and for this, no taking occurs, and no just compensation is required. Justice Breyer asserts that this Regulation only prevented agricultural employers from refusing to allow union organizers onto the property for a “temporary invasion,” which would not amount to a taking. Justice Breyer suggests that the majority’s opinion paves the way for any regulation on the use of property may then constitute a taking.
While this is a decision in California, it could affect agricultural employers in other states as well. Employers Council can help; contact our labor relations attorneys with questions.