Access denied: Supreme Court finds California regulations allowing union access to employer property to be unconstitutional

In a 6-3 decision, the United States Supreme Court ruled on June 23, 2021 that a California regulation granting union organizers the “right to access” private property of agricultural employers to solicit union support violated the take-over clause of the US Constitution. See Nursery Cedar Point et al. vs. Hassid et al., USSC Case No. 20-107 (June 23, 2021).


Decades ago, the Agricultural Labor Relations Board (“ALRB”) of California enacted a regulation that requires agricultural employers to give labor organizers access to their private property for up to three hours a day, 120 days a year for organizational purposes. In 2016, two farm employers sued the ALRB in California federal court, seeking to bar the agency from enforcing the regulation because the regulation constituted a physical appropriation of private property in violation of the take-over clause. possession of the Constitution, which prohibits the government from taking private property. “without fair compensation”.

The district court, however, rejected this argument, arguing that because the regulations “did not allow the public access to [the Employers’] property in a permanent and continuous manner for whatever reason ”, this did not amount to an unconstitutional physical hold. On appeal, a divided Ninth Circuit panel upheld the district court’s ruling, noting that the regulations neither allow the public to “unpredictably cross” employers’ private property “24 hours a day, 365 days a year. “, Nor to” completely deprive[d]”Employers from any economically advantageous use of their property. After the Ninth Circuit rejected their request for a new hearing in bench, the employers appealed to the Supreme Court, which granted certiorari.


The Supreme Court overturned the Ninth Circuit, ruling that because the right to exclude third parties from private property “is one of the most valuable property rights” California regulations require agricultural employers to allow union organizers access to private property was a clear physical appropriation. In such cases, because the physical appropriation of private property is so clear, the Court “uses[s] a simple, in itself rule: the government must pay for what it takes. The Court then distinguished PruneYard Shopping Center c. Robins—A 1980 case in which the Court rejected the argument that state protection of the distribution of leaflets in a private mall was an unconstitutional take – explaining that, unlike the private property of agricultural employers, the mall in Pruneyard “was open to the public, welcoming some 25,000 customers a day.” See 447 US 74. Notably, the Court also suggested that the narrow exception enjoyed by unions under current federal labor law – which grants self-employed organizers a right of access to employers’ private property when workers employees are otherwise “beyond the reasonable efforts of unions.” to communicate with them ”- could also prove to be an unconstitutional take, if contested.

Potential impact of the decision

For the parties, the main question left open by the Supreme Court’s decision is: what is the appropriate remedy for the unconstitutional decision in this case? In other words, should landowners be granted an injunction, as they requested, and / or should landowners be compensated for the access granted to organizers? And if so, how many? The Court referred the case back to the Federal District Court to deal with this issue.

This case is of interest to labor lawyers, both employers and unions, as the regulation in question provided for the right of a union to access employer property, which has a direct impact on the traditional management-union relationship. . What is particularly unique about this case is that national and local labor laws are usually challenged on the grounds of pre-emption (that is to say., the injured party argues that national or local regulations are preempted because such conduct is arguably protected or prohibited by federal labor law). Here, however, the law did not face a pre-emption challenge, possibly because agricultural employers fall outside the scope of the NLRA. Depending on the facts, the potential remedy under the catch clause could encourage parties to challenge similar state or local regulations that grant third parties access to private property.

Only time will tell, but overall, the potential effect of this decision on labor-management relations appears limited for at least four reasons:

  • First, while California farm employers are no longer required to grant labor organizers access to their private property (unless the state provides “fair compensation”), this change applies only to employers of one industry in one state-nothing more.
  • Second, according to the Wall Street newspaperAlthough California has about 16,000 agricultural employers, union organizers have recently invoked their right of access in a few dozen cases each year.
  • The third, if the state of California chooses to continue to make private property access compulsory for union organizers by offering agricultural employers “fair compensation,” there is no guarantee that a windfall will result for union organizers. agricultural employers, especially if “fair compensation” is seen as nominal.
  • To finish, even the Court’s suggestion that the “highly conditional” right of access currently granted by federal labor law to non-employee union organizers (where employees are beyond “reasonable” communication efforts) could also represent an unconstitutional take. Indeed, given that this right of access is limited to extreme situations when employees live or work on very remote properties belonging to the employer (such as logging camps or fish canneries), models of facts that could allow such a challenge, in practice, seem rare. And even if such a pattern of facts has occurred – ultimately allowing the exception to be successfully challenged – because the exception is so limited that it would naturally have an impact on very few workplaces.

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