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Supreme Court will review California’s union access regulation

By Wayne D. Garris Jr., J.D.

Proponents of the regulation argue that it protects labor rights, while agriculture growers argue that the regulation violates their property rights.

On November 13, the Supreme Court agreed to hear arguments in Cedar Point Nursery v. Hassid, in which the justices will examine a California regulation that allows union organizers to access employees on an employer’s property under limited circumstances. The court will hear oral arguments during the October 2020 term.

Access regulation. The California Agricultural Labor Relations Board (ALRB) promulgated an emergency regulation shortly after the Agricultural Labor Relations Act (ALRA) took effect in 1975. The regulation allowed union organizers access to employees on their employer’s property under limited circumstances. The ALRB determined that adopting a universally applicable rule for access—as opposed to case-by-case adjudications or the “adoption of an overly general rule”—would best serve the “legislatively declared purpose of bringing certainty and a sense of fair play to a presently unstable and potentially volatile condition in the agricultural fields of California.” This right of access is not unlimited. Rather, the regulation imposes a number of restrictions on access relating to time, place, number of organizers, purpose, and conduct.

Shortly after the ALRB promulgated the access regulation, several agricultural employers challenged the regulation in state courts on both constitutional and statutory grounds. Ultimately, the California Supreme Court vacated several different trial courts’ orders enjoining enforcement of the regulation.

Federal court proceedings. The petitioners, Cedar Point Nursery and Fowler Packing Company, filed a complaint for declaratory and injunctive relief under 42 U.S.C. § 1983 against members of the ALRB. The strawberry growers alleged that the access regulation, as applied to them, was unconstitutional: It amounted to a per se taking in violation of the Fifth Amendment because it was a permanent physical invasion of their property without just compensation, and the regulation effected an unlawful seizure of their property in violation of the Fourth Amendment. A district court denied the growers’ motion for injunctive relief as to both the Fifth and Fourth Amendment claims and granted the ALRB’s motion to dismiss.

On appeal, the Ninth Circuit affirmed dismissal of the growers’ claims holding that the access regulation did not constitute a per se taking and that the growers failed to plausibly allege that the access regulation effected a seizure within the meaning of the Fourth Amendment. The Ninth Circuit later denied the growers’ petition for a hearing en banc.

Circuit split. In their petition, the growers again argue that the regulation amounts to a per se taking in violation of the Fifth Amendment and that the Ninth Circuit’s decision conflicted with the Federal Circuit’s holding in Hendler v. United States on the question of whether a ‘”continual, but time-limited easement qualifies as a ‘permanent’ physical invasion.” “A clear circuit split on such a fundamental question of property rights is reason enough to grant the petition,” the growers argued.

Takings precedent. The Ninth Circuit held that the because the easement was not accessible to union organizers “24 hours a day, 365 days a year” and because the only right taken was the right to exclude, there was no takings violation. According to the growers, this reasoning contradicted Supreme Court takings precedent that held that intrusions on property trigger a categorical duty to provide just compensation “without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.”

“Nationwide importance.” Further, the growers argued that the question of whether “a time-limited easement for the benefit of favored third parties is a categorical taking” has nationwide significance because California leads the country in producing agriculture and is the sole producer of several crops. The petitioners also argued that the court’s decision would have implications in other property rights conflicts, such as those involving beachfront access.

State’s response. In its Brief in Opposition, the State of California argued that the Supreme Court has never held that a regulation similar to the one at issue resulted in a per se taking of property. Further, the state argued that the growers failed to demonstrate that the regulation had resulted in any actual economic harm.

The case is Cedar Point Nursery v. Hassid. The case is No. 20-107.