Court docket to contemplate conflict between property rights advocates, union organizers
By Amy Howe
on March 19, 2021
at 2:47 p.m.
A worker on a strawberry farm in Orange County, California (F Armstrong Photography via Shutterstock)
In recent years, the Roberts Court has issued rulings that have expanded the rights of property owners to challenge government measures and made it difficult for public employees’ unions to fund their operations. Property rights and union interests collide on Monday as judges at Cedar Point Nursery hear a hearing against Hassid, challenging the constitutionality of a California ordinance that allows union organizers to enter the grounds of an agricultural employer to talk to workers about assistance one to speak of union. Two California producers claim the ordinance violates the fifth amendment that prohibits the government from taking over property without compensation. Defenders of the regulation warn that a decision could have far-reaching implications for producers – which could potentially endanger not only the union organization but also a wide range of government health and safety oversight.
The ordinance at the center of the dispute was issued in 1975 by the California Agricultural Relations Board. It allows union organizers to enter the premises of an agricultural employer to speak to workers about union support for three hours a day over a period of 30 days, for a total of 120 days per year. The organizers do not need permission from the employer. All you need to do is inform the board of directors and the employer that you intend to enter the property.
The next week’s lawsuit in the Supreme Court began in February 2016 when two California producers filed a lawsuit in the California federal district court. The Cedar Point Nursery near the Oregon state line produces strawberry plants. It has approximately 100 full-time employees and more than 400 seasonal workers housed in hotels across the Oregon state line. Fowler Packing Company, based in Fresno, California, supplies grapes and citrus fruits. The company employs up to 2,500 people in the field and 500 people in the packaging plant. The workers do not live on company property.
The two companies alleged that the regulation eased their property by allowing union organizers to have access to their property. By not agreeing to the relief, the companies argued or received no compensation for it, the regulation resulted in a “take” that violated the fifth amendment.
The district court threw the case back, and a divided US Court of Appeals for the 9th Circuit upheld the decision and allowed the ordinance to stand. The producers then went to the Supreme Court, which agreed to weigh up last November.
In their letter of merit, the producers characterize the regulation as “the product of a bygone era” when farm workers often lived on their employer’s property and were largely cut off from the rest of the world. However, the regulation provides that unions allow unions access to property of all agricultural employers, regardless of the living situation of their workers or the ability of the unions to reach workers in other ways (either physically or through advertising).
As the regulation gives union organizers access to their property, producers continue to create a relief that is a “standalone” property interest. In the Supreme Court cases, they argue that if the government takes over that property interest without compensation, it will be categorically treated as a taking in violation of the Fifth Amendment.
Growers add that union organizers do not have 24/7 access to their property. Producers stress that the regulation continues to oblige them to take ownership of union organizers for up to 120 days per year. Limits to the extent of the relief, the producers tell the judges, are only relevant to determine how much compensation they owe; They have nothing to do with whether or not their property was “taken” at all. And it is important, growers conclude, that a clear rule prevents the government from providing even limited relief without compensation, since the right to exclude others is such an important part of ownership.
Arguments of the Chamber
The California Agricultural Labor Relations Board emphasizes that the regulation only places tight obligations on producers. Union organizers, the board emphasizes, are only allowed to enter certain parts of an employer’s property at certain times of the working day – before the start of the working day, at lunchtime and after work. In addition, union organizers have only used the regulation to gain “frugal” access to an employer’s property.
The Board recognizes that the Supreme Court has recognized that government regulations can constitute “income” from property. However, the board notes that the court has only recognized two types of regulatory measures, which are always classified as revenue without examining the justification for the regulation. Both were regulations “that are the functional equivalent of direct physical appropriation of property”: the first was a law that allowed a cable television company to access and permanently install equipment on the property. The second was a permit requirement that required an owner to provide relief that would allow the public to get across their beachfront property.
Because the California ordinance is limited in scope and does not permanently occupy producers’ land, the Board believes that it is neither of those two scenarios. In fact, the Supreme Court has already signaled that a similar right of access resulting from federal labor law is not always classified as revenue. Instead, the board suggests that any challenge to the regulation should be based on the test normally used for regulation. It examines “whether a regulation forces property owners to bear excessively burdensome public burdens”.
“Friends of the court” weigh in
Due to the high stakes in the case, a wide range of “Friend of the Court” letters were filed to support both sides. A remarkable statement came from the federal government, which, due to the change in administration, advocated both the producers and the board in various phases of the case. In a brief filed Jan. 7, Acting Attorney General for the Trump administration, Jeffrey Wall, agreed with growers that the ordinance constituted an acquisition of their property, although his reasoning was slightly different from that of the growers. In a letter to Scott Harris, the clerk, acting Attorney General for the Biden administration, Elizabeth Prelogar, told judges on Feb. 12 that Wall’s filing on Jan. 7 “no longer represents the position of the United States.” Instead, Prelogar said, the United States now believes that since the California ordinance only allows temporary access for union organizers, it doesn’t necessarily represent a physical ingestion.
A brief submitted by a group of agricultural trade associations assures judges that there was no more good reason to violate property rights of owners when the ordinance was passed 45 years ago. Because farm workers do not typically live on the land they work on and virtually everyone has a smartphone and can be reached on social media, trade associations are telling judges that union organizers do not need to have access to the farms to speak to them Manpower.
However, a union representing California farm workers opposed producers’ suggestion that the ordinance was no longer required, arguing that the terms under which the board passed the ordinance 45 years ago “have not changed in the decades since then have changed significantly ”. A study from 2013 found that 14% of day laborers have no mobile phone at all, let alone a smartphone, writes the union. A 2010 study estimated that over 100,000 workers spoke a language that was neither Spanish nor English.
Letters from state and local governments urge judges to consider the wider implications of their decision. A common argument in these briefs is that following the producer approach, governments at all levels would face the prospect of having to pay private property owners if officials were to enter the country – for example, to conduct health and safety inspections, such as home visits Social workers or to inspect coal mines, railways or drug manufacturers.
This post was originally published on Howe on the Court.