By Vicky Boyd
The U.S. Supreme Court recently ruled in favor of two California farming operations that had fought a 1975 state rule allowing union organizers on their property to recruit new members.
In a 6-3 ruling, the high court determined the Agricultural Labor Relations Board access rule constituted a “per se physical taking” and violated the companies’ Fifth Amendment constitutional rights, which guarantees just compensation for a public taking.
Saying the ruling was a long time in coming, San Joaquin Farm Bureau President David Strecker described it as a very important affirmation of private property rights.
“We’re the landowners, the ones paying taxes on that land and we’re the ones who have that liability should people be injured, so it’s really important to protect our private property rights,” he said.
Strecker also noted that the union access rule was unique to agriculture, and no other industry had similar requirements.
“It’s totally out of the normal when you look at some of the other industries, like hospitals,” he said. “You can’t just walk into them. You can’t go right into many other businesses – they have signs that say ‘authorized personnel only.’”
In addition, many agricultural operations must adhere to food safety rules and limit entrance to minimize potential food contamination.
“People can’t just come onto farms whenever they want to,” Strecker said. “It doesn’t matter if it’s a union organization or just families walking through, people just can’t walk through the fields – it creates a huge liability.”
California Farm Bureau senior counsel Carl Borden, who submitted two friend of the court briefs before the Ninth Circuit Court and two before the Supreme Court, said he was pleased with the high court ruling as it backed CFBF policy.
“The California Farm Bureau has had for many, many decades – very soon after the access regulation was put into place in 1975 – a policy that we strongly censure it as being an infringement on private property rights because it allows trespass by non-employees,” he said.
Joshua Thompson, Pacific Legal Foundation director of legal operations, argued the case on behalf of the two farming operations before the Supreme Court.
“What the ALRB rule did is it took an interest in our clients’ property – an easement-like interest,” he said. “And the Constitution requires that if the government takes away a real interest in your property, it has to make compensation.”
Because the ALRB rule failed to do so, Thompson said he argued, it was unconstitutional and should be enjoined.
Within 24 hours of the Supreme Court ruling, the ALRB issued a statement saying it would no longer accept notices of intent to take access under regulation 20900. It was referring to the request labor unions must first file before members visit an ag operation to talk to workers. In addition, any notice of intent of access being processed would be deemed invalid, according to the board statement.
What happens now remains to be seen, Borden said. The ALRB could keep the rule on the books and just let it go dormant, or the board could repeal it entirely.
Another option would be for the board to amend the rule to provide some type of just compensation to ag employers on whose premises the ag labor unions would take access, Borden said.
‘We’re just going to have to wait and see what the ALRB does with this,” he said. “I haven’t seen any rule making, although we’re just a month into the decision.”
Archaic rule
The case, Cedar Point v. Hassid, challenged union organizers’ rights to occupy farm property for as many as three hours per day – at lunch time or before or after work – for up to 120 days per year with advanced notice.
Joining Cedar Point Nursery, a strawberry nursery in Dorris, was fruit packer Fowler Packing Co. of Fresno. They sued the state and ALRB chair Victoria Hassid in 2016, saying the access rule amounted to a taking of private property by the government because it disrupted business operations without compensation.
The ALRB originally adopted it in 1975 because many farm workers were migrants who lived in temporary housing, making it difficult to contact them personally.
In today’s world, that is no longer the case, and Borden said the access rule contradicts long-standing U.S. Supreme Court rulings.
In his friend of the court briefs, he cited two Supreme Court cases – National Labor Relations Board v. Babcock & Wilcox Co., in 1956, which was backed up by Lechmere Inc. v. NLRB in 1992. In both of those, the court ruled that unions in a non-ag setting could only take access to property where the labor organization had no alternative channels of effective communication with the targeted employees.
“At least in the 21st century, there’s a very low percentage of ag employees who do live on employers’ private premises,” Borden said. “I think one of the most notable things is farm workers generally have mobile phones and that’s how we communicate with them.”
In addition, ag labor unions have turned to social media, radio and other broadcast media to reach ag employees.
Majority opinions
On behalf of the majority, Chief Justice John G. Roberts Jr. wrote, “The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”
In a concurring opinion, Justice Brett Kavanaugh also cited NLRB v. Babcock & Wilcox Co.
“As I read it, Babcock recognized that employers have a basic Fifth Amendment right to exclude from their private property, subject to a ‘necessity’ exception similar to that noted by the court today,” Kavanaugh wrote. “Babcock strongly supports the growers’ position in today’s case because the California union access regulation intrudes on the growers’ property rights far more than Babcock allows.”
The rare exceptions to which he referred could be logging camps, mines or private resorts where workers are isolated.
Borden said he wasn’t surprised by the court’s ruling based on the odds of being heard by the high court. Of the 8,000 cases annually that request review, only about 1% are brought before the justices. For a case to even be heard, four of the nine justices must agree to review it.
“The fact that you already have four justices agreeing to review the matter means there will be a good likelihood they will also rule in favor of the petitioner,” he said.
Prior to the Supreme Court review, the U.S. Court of Appeals for the Ninth Circuit narrowly voted in May 2019 that the union access rule did not constitute an unconstitutional taking because the property access was not permanent.
Judge Sandra S. Ikuta dissented from the Ninth Circuit’s denial of en banc (full court) review, saying the panel decision violated growers’ property rights, contradicted U.S. Supreme Court precedent and created a circuit split.
Ikuta argued that the agricultural industry has “changed dramatically in the past 40 years,” and most employees do not live on the employer’s property. In addition, “Modern technology gives union organizers multiple means of contacting employees,” she wrote.
