A 46-year-old California regulation that requires farmers and packers of agricultural goods to allow union organizers on their property three hours a day for 120 days each year is being challenged before the U.S. Supreme Court.
Oral arguments were presented on March 22 in Cedar Point Nursery v. California Labor Relations Board. The case stems from an October 2015 incident in which union organizers with bullhorns swarmed onto Cedar Point’s property near the Oregon border without prior notification for the purpose of recruiting farmworkers to join their union. Surging through the nursery’s buildings, the organizers interrupted the work of the operation’s 100 full-time employees and 400 seasonal workers, all of whom were busy preparing strawberry plants.
Defenders of what is commonly referred to as California’s “union access regulation” say it is necessary if unions are to have an opportunity to make their case directly to farmworkers. The United Farmworkers of America (UFA) emphatically deny what their organizers did constituted trespassing on Cedar Point’s property.
“The right-to-access law, whether provided to unions or anybody to somebody’s personal private property is wrong,” Mike Fahner, the third-generation owner of Cedar Point Nursery, told the Washington Post (March 21). “And it doesn’t exist anywhere else in the nation.” Cedar Point is joined in its suit by Fowler Packing Co., a Fresno-based packer and shipper of grapes and mandarin oranges. They are represented by the Pacific Legal Foundation (PLF).
Is it a Taking?
The case requires the Supreme Court to consider what is called the “takings clause” of the Fifth Amendment to the U.S. Constitution: “Nor shall private property be taken for public use, without just compensation.”
In the view of the plaintiffs, California has granted the unions an “easement” on agricultural property for a “public use,” facilitating the organization of farmworkers, for which the property owners should receive “just compensation.” While an easement is distinct from government using the power of eminent domain to seize private property to build, say, a road, the loss of farmers’ property for specific periods over the course of a year still constitutes a taking, the plaintiffs claim.
Cedar Point and Fowler argue that the Supreme Court “has repeatedly recognized that the taking of an easement is a permanent physical invasion of property that triggers a categorical duty of compensation.” In his oral argument before the Supreme Court, PLF’s Joshua Thompson said a taking is any “easement that takes the right to enter, occupy, and use another’s private property.”
The San Francisco-based 9th Circuit Court of Appeals, upholding a lower court decision, threw out the case in 2019, prompting the plaintiffs to appeal to the Supreme Court.
Broad or Narrow Ruling?
While peppering both sides with questions during the March 22 exchange of oral arguments, Supreme Court justices appeared inclined to deal the UFA a defeat. The only question appears to be the magnitude of the plaintiffs’ likely victory. Will the Justices rule that the California law constitutes a taking of private property, requiring compensation, and is unconstitutional? Or will it issue a narrower ruling, circumscribing the breadth of the law but not allowing compensation or declaring the regulation unconstitutional?
A ruling is expected in a few months.
Bonner Cohen, Ph. D.
Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh.
He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.
March 29, 2021 at 08:29AM