Supreme Court appears skeptical of California rule letting union organizers on private farms

The Supreme Court gave a skeptical hearing Monday to a California labor regulation that gives union organizers limited rights to go on to the private property of agribusinesses to encourage farm workers to join.

Most of the justices — conservative and liberal — agreed the “right to access” rule, adopted in 1975, appears to violate the property rights protected by the Constitution.

“It seems to me that letting the government come and use your land for non-business purposes seems to be exactly what the ‘takings clause’ was intended to avoid,” Justice Sonia Sotomayor told an attorney for California. She was referring to the 5th Amendment’s clause that says private property shall not “be taken for public use without just compensation.”

Justice Amy Coney Barrett said homeowners would be surprised if the same sort of rule could be applied to their property. If a house were on a busy street corner, could the government “decide it would be beneficial to allow people to protest on my lawn because it’s so highly visible to the traffic?” she asked.

Her question and others like it suggested the high court will limit or strike down the decades-old regulation, which years ago was upheld by the California Supreme Court and is being challenged at the high court now for the first time. The California Legislature in 1975 became the first in the nation to extend collective bargaining rights to farm workers. Months later, the labor board adopted the “right of access” rule to allow organizers to seek out those who were working on farmland.

It has come under attack in recent years by agribusinesses that called it a “union trespassing” rule that violates their property rights.

The case of Cedar Point Nursery vs. Hassid is being closely watched not only for its effect on unions and farm workers in California, but also on a host of federal, state and local laws that authorize inspectors to go into factories, warehouses, packing plants, office buildings or restaurants to check for health and safety violations.

Justice Neil M. Gorsuch scoffed at the notion that ruling for the agribusinesses would have a “revolutionary” impact. The law has long allowed government inspectors to go into businesses to enforce health and safety rules, he said. That is different from authorizing other people to regularly enter private property, he said.

The case may not be a total loss for unions, however. Most members of the court were also skeptical of the broad claim made by the property-rights advocates that allowing a union organizer on private land for even one hour amounted to the government “taking” of private property for public use.

Instead, Justice Brett M. Kavanaugh and others said they favored the “balanced” approach the court adopted in labor cases since the 1950s. Kavanaugh said the court can protect a company’s right to private property while also assuring union organizers a right to speak to workers in parking lots or other places as they are enter or leave work sites.

In recent years, the more conservative high court has been more open to bolstering property rights. All sides agree the Constitution requires the government to pay the owners of property if it takes possession of the land. However, the justices have disagreed in the past over whether the “just compensation” rule extends to government regulations that limit use of the property.

Lawyers for the Pacific Legal Foundation, representing landowners, described the California regulation as creating an “easement” across the grower’s property because union organizers may enter an hour before work begins, during the lunch break or at the end of the day. They urged the court to adopt what they called a simple rule: “the government violates the takings clause when it appropriates an easement across private property for the benefit of third parties without compensation.”

In response, lawyers for the California Department of Justice said the state rule is not a “taking” because it does not “authorize a permanent physical occupation of property.” It allows “only temporary and limited access” to farms and processing stations so union organizers may speak with workers.

The case before the court began in 2015. The owners of the Fowler Packing Co. in Fresno refused to allow union organizers onto their property. A few months later, union organizers entered a strawberry packing plant near the Oregon border and disrupted the work, according to Mike Fahner, owner of the Cedar Point Nursery.

The two companies then joined in a lawsuit seeking to have the California regulation declared unconstitutional. They lost before a federal judge and the 9th Circuit Court of Appeals in San Francisco, but the Supreme Court voted to hear their appeal.