Farmers Ask Supreme Court to Strike Down California Rule Allowing Aggressive Labor Organizing

March 22, 2021 Updated: March 22, 2021

California law that gives labor organizers permission to trespass on private property and disrupt business operations 120 days a year to recruit new members should be struck down as unconstitutional, farmers urged a seemingly receptive Supreme Court.

The case, Cedar Point Nursery v. Hassid, court file 20-107, is an appeal from the U.S. Court of Appeals for the 9th Circuit. The telephonic oral arguments on March 22 lasted 69 minutes.

The petitioners are Cedar Point Nursery, a strawberry farm in Dorris, and Fowler Packing Co. Inc., in Fresno, which produces grapes and mandarin oranges. Together, they employ about 3,000 people. The lead respondent is Victoria Hassid, a Democrat, in her capacity as head of the California Agricultural Labor Relations Board.

If the Supreme Court rules in favor of the petitioners, some aggressive recruitment tactics by labor activists may be curbed.

California law forces agricultural producers to open their property and businesses to labor activists, which disrupts their business operations, effectively taking their property without compensation, the farmers argue. The state statute mirrors Section 7 of the National Labor Relations Act, which guarantees employees “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.”

But 46 years ago, the California Agricultural Labor Relations Board interpreted the law as granting union organizers the right to access the private property of all agricultural employers “for the purpose of meeting and talking with employees and soliciting their support.” Regulations dispense with any requirement that organizers obtain an employer’s consent before taking access.

Such a sweeping rule violates the property rights of the agriculture businesses, petitioners say, but the state argues the rule is not a “taking” under the Fifth Amendment because it doesn’t “authorize a permanent physical occupation of property.” It allows “only temporary and limited access” to facilities so union organizers may speak with workers.

“An access easement that takes the right to enter, occupy, and use another’s private property effects a per se physical taking under the Fifth Amendment,” the petitioners’ lawyer, Joshua P. Thompson, told the justices during oral arguments.

“The access regulation at issue in this case authorizes an easement on the property of petitioners for the benefit of union organizers. Under the terms of the access regulation, organizers may occupy the business’s property for three hours each day, 120 days each year. This court should hold that the taking of this easement violates the Fifth Amendment because it effects a physical taking without compensation,” said Thompson, an attorney with Pacific Legal Foundation, a national public interest law firm in Sacramento.

“The access regulation denies petitioners the right to exclude union organizers from their property.”

“If the government wants to take an access easement over private property, it has to pay for it. Failure to pay just compensation violates the Takings Clause,” he said.

Justice Amy Coney Barrett seemed concerned that the California rule could foreshadow further government encroachments on private property.

“Let me give you a hypothetical based on my personal residence,” she told California Solicitor General Michael J. Mongan, who defended the rule.

“Let’s imagine that it’s situated on the corner of two busy streets and a city decides that it would be beneficial to allow people to protest on my lawn because it’s so highly visible to the traffic that’s passing by. But exactly like this one … it says you can do it 120 days a year and three hours at a time just during rush hour.”

During his opening statement, Mongan emphasized that the rule limits the activities of labor organizers.

The rule is not a taking, he said, adding that “in this area of the law,” the court has reserved such treatment for “extreme regulations that are the functional equivalent of the government directly appropriating private property.”

The farmers here “can’t credibly claim” that the rule “destroys all their rights to any part of their property or that it’s the functional equivalent of the government taking over their farm.”

Chief Justice John Roberts asked, “What do you do if there’s more than one union that wants access? I mean … it’s not at all unusual for unions to be competing for representation. So does each union gets its own 120 days?”

Mongan replied “Yes,” but said, “as a practical matter … there are not typically situations where there are multiple unions … in a particular year, but that is theoretically possible.”

Justice Brett Kavanaugh suggested Thompson was on the winning side here.

“We decided unanimously in 1956 how to balance property rights against union organizing rights,” he said. “You probably prevail.”

After the hearing, Thompson was optimistic about the case.

“These two businesses have stuck to their guns from the get-go. Now, it’s just a matter of getting the result that we’re all hoping for,” he said.