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The Sweeping Implications of the Supreme Court's New Union-Busting Case
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51809"><span class="small">Ian Millhiser, Vox</span></a>   
Monday, 15 March 2021 12:23

Millhiser writes: "Cedar Point Nursery v. Hassid, which the Supreme Court will hear next Monday, March 22, targets a nearly half-century-old regulation in California that permits union organizers to briefly enter agricultural worksites and speak to farmworkers. But the stakes in this case go far beyond union busting."

Supreme Court justice Neil Gorsuch, left, talks with Chief Justice John Roberts on the steps of the Supreme Court following his official investiture at the Supreme Court June 15, 2017, in Washington, DC. (photo: Win McNamee/Getty)
Supreme Court justice Neil Gorsuch, left, talks with Chief Justice John Roberts on the steps of the Supreme Court following his official investiture at the Supreme Court June 15, 2017, in Washington, DC. (photo: Win McNamee/Getty)

The Sweeping Implications of the Supreme Court's New Union-Busting Case

By Ian Millhiser, Vox

15 March 21

Cedar Point Nursery v. Hassid isn’t just an attack on unions, it could bar health inspectors from inspecting restaurants.

edar Point Nursery v. Hassid, which the Supreme Court will hear next Monday, March 22, targets a nearly half-century-old regulation in California that permits union organizers to briefly enter agricultural worksites and speak to farmworkers. But the stakes in this case go far beyond union busting.

The plaintiffs in Cedar Point ask the justices to so radically reshape the Court’s approach to property rights that some of the most basic state and federal health and safety laws could fall. Among other things, if the Court accepts the plaintiffs’ argument that farm owners have a constitutional right to kick union organizers off their property, it could also mean that restaurants have a constitutional right to keep health inspectors from entering their kitchens, or that factory owners can prohibit the government from inspecting their machines to make sure those machines are safe to operate.

Cedar Point is one of the most radical property rights cases to reach the justices in a long time. And its plaintiffs ask for a significant reshaping of the American social contract.

The case arises out of the Fifth Amendment’s “Takings Clause,” which provides that private property shall not “be taken for public use, without just compensation.” The plaintiffs claim that this clause gives them a broad “right to exclude unwanted persons from private property,” and that this right permits a property owner to forbid a union from entering their land, even if state law permits that union to do so.

If the Cedar Point plaintiffs prevail, California will have to pay farm owners if it wants to enforce its pro-union regulation.

The Supreme Court has repeatedly held that laws granting unions a limited right to enter an employer’s property and speak to workers are constitutional. As the Court held in Central Hardware v. NLRB (1972), the government may require an employer to allow a union onto its property so long as “the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer’s premises; and (iii) the duration of organization activity.”

But the Cedar Point plaintiffs don’t just ask for a decision that could sweep away decisions like Central Hardware. They ask for such a broad power to exclude others from private property that even things like health inspections could be endangered.

How the Takings Clause currently operates

The specific regulation at issue in Cedar Point has been on the books since 1975. It allows organizers to enter a worksite and speak to farmworkers for up to three (nonconsecutive) hours a day — the hour before the start of work, the hour after the end of work, and the workers’ lunch break.

Before a union may do so, it must notify the government and the employer. The union may enter the worksite for up to 30 days, and it may invoke this right to enter a particular worksite up to four times a year.

Thus, union organizers are allowed on a farm’s property for a maximum of 120 days a year, and only for a total of three hours per day.

The Cedar Point plaintiffs argue that this limited intrusion of their property amounts to what is known as a “per se” taking. Current law distinguishes between per se takings, which involve unusually severe intrusions on private property and are treated with particular skepticism by courts, and milder intrusions on property rights that fall under the broader umbrella of “regulatory” takings. Notably, the Cedar Point plaintiffs do not argue that California’s union access rule is a regulatory taking — so they appear to have made a strategic decision to avoid more measured legal arguments in favor of their more radical claim.

Property owners subject to a per se taking will generally prevail in court, while plaintiffs who allege a regulatory taking often lose — even if they challenge a land use regulation that imposes fairly substantial limits on how they can use their property. In one famous regulatory takings case, the Court upheld a New York City law that prevented the owners of Grand Central train station from constructing a high-rise office building on top of the terminal.

Very few cases qualify as per se takings. Under existing precedents, a law doesn’t count as a per se taking unless it deprives a property owner of “all economically beneficial or productive use” of their property, or subjects the property owner to a “permanent physical occupation” of their land.

So, under this framework, California’s union access rule is not a per se taking. Though a union that successfully organizes a workplace is likely to secure a contract that requires the employer to pay more money to its workers, unionization does not deprive an employer of all economic benefits from their land. And California’s rule does not allow anyone to permanently occupy a property owner’s land. It only allows union organizers to enter that land for a few hours a day, and only for about a third of the year.

How the Cedar Point plaintiffs want to remake the law

Before we get into some details about the Cedar Point plaintiffs’ argument, it’s helpful to understand two legal concepts.

The first is the concept of a “license.” Suppose that I hire a dog walker to walk my dog on weekday afternoons while I’m at the office. As part of this arrangement, I give the dog walker a key to my home and permission to enter in order to bring the dog outside for his walk. Under this arrangement, I have granted the dog walker a “license” to enter my home.

Licenses are often temporarily arrangements. And they typically (though not always) can be revoked by the property owner. If I decide that my dog walker is doing a bad job, I can fire them and take away their legal right to enter my home. And if I sell my home, the dog walker doesn’t retain any right to enter my former home once the new owner takes possession.

An “easement” is something else entirely. Suppose that Marge owns a house in a rural area with minimal electrical infrastructure. Now suppose that Big Electric wants to build a power line under Marge’s land that can bring electricity to her neighbors, and that Big Electric also seeks a permanent right to enter Marge’s land and repair this power line if it is damaged. So Big Electric offers Marge money in return for a permanent right to build and maintain this power line.

Big Electric is seeking an easement. Easements typically transfer a portion of a property owner’s rights permanently to someone else. Under ordinary circumstances, a landowner may exclude anyone they want from their property. But under the terms of this easement, Marge would permanently give up her right to exclude Big Electric’s repair crews. Big Electric would own the right to enter onto Marge’s land just as surely as Marge owns her home.

And if Marge someday sells her home to someone else, Big Electric would still own that easement. It would belong to Big Electric, not Marge, and therefore is not something that Marge could transfer to someone else.

This distinction between licenses and easements matters because in Nollan v. California Coastal Commission (1987), the Supreme Court held that, if the government seeks a “public easement across a landowner’s premises,” then the Takings Clause requires the government to compensate that landowner. The Cedar Point plaintiffs rely heavily on Nollan in their brief, arguing that the California union-access regulation “appropriates an easement across the property of all agricultural businesses in California” by stripping those businesses of the right to exclude certain people from their land.

Essentially, they argue that this alleged easement amounts to a per se taking because it permanently gives unions a right to visit certain worksites — even if the unions can only enter those worksites some of the time.

The state concedes that its regulation “is similar to an easement insofar as it affords union organizers a ‘nonpossessory right to enter’ the property of agricultural employers.” But the state ultimately argues that its regulation only grants “some form of license” to union organizers.

It’s a strong argument because, while the California regulation does diminish some property owners’ rights to exclude unwanted visitors, it does not resemble an easement in one very important way. The California regulation does not permanently transfer any of a farm owner’s property rights to unions. The unions do not own anything because of this regulation.

If California were to repeal its regulation tomorrow, the unions would be left with nothing. Had the California regulation actually imposed an easement on farm owners, then unions would retain their ownership of this easement even after the regulation that established it ceased to exist. Under Nollan, if the unions had obtained an easement allowing them to enter private land, then the Takings Clause would forbid California from taking this easement from them without compensating them.

If the Supreme Court agrees that California’s regulation appropriates an easement from farm owners, then the implications are profound

At least in marginal cases, the line between an easement and a license can be blurry. As one California appeals court judge complained in a 1994 opinion, commercial land use arrangements often involve such complicated terms that “it is increasingly difficult and correspondingly irrelevant to attempt to pigeonhole these relationships as ‘leases,’ ‘easements,’ ‘licenses,’ ‘profits,’ or some other obscure interest in land devised by the common law in far simpler times.”

But, to the extent that the Supreme Court is uncertain whether to classify the rights granted to unions by California’s regulation as a “license” (and therefore as more permissible under the Constitution) or an “easement” (and therefore subject to the Takings Clause’s restrictions), there are profound practical reasons to prefer the former option.

The state’s brief in Cedar Point spends several pages explaining just how many laws could become invalid if the government cannot require landowners to allow unwanted persons onto their property.

“The categorical rules proposed by petitioners and their amici would also imperil a wide variety of health- and safety-inspection regimes,” the state’s legal team writes. “These include, among many others, food and drug inspections, occupational safety and health inspections, and home visits by social workers,” as well as a federal law providing that “underground mines must be inspected ‘at least four times a year.’”

States also frequently enact laws allowing non-governmental workers to enter onto private land. “Many States authorize utility companies and similar entities to enter private property, even absent the owner’s consent, for surveys, repairs, connections, and similar purposes,” the state’s brief explains.

And, in what is likely a bid to secure the votes of conservative justices who support strict enforcement of immigration laws, California argues that the rule proposed by the Cedar Point plaintiffs could prevent law enforcement from arresting many undocumented immigrants.

Although longstanding legal principles permit “entries onto private property to make arrests or enforce criminal laws,” these principles “do not appear to apply to entries by Border Patrol agents to enforce noncriminal immigration laws, or by other government officials to enforce other civil laws.”

US laws permitting unwanted persons to enter a property owner’s land, moreover, stretch back to the early days of the American Republic. Indeed, a Massachusetts law from the 1640s, when the state was still a British colony, provided that “‘any man ... may pass and repass on foot through any man’s propriety’ in order to access ‘great ponds’ for the purpose of fishing or fowling, so long as the entry did not damage the property.”

The strict limits on governmental regulation of property rights proposed by the Cedar Point plaintiffs, in other words, are quite novel. And those limits could invalidate countless state and federal laws, preventing health inspectors from investigating potentially unsafe businesses, and preventing workplace inspectors from investigating dangerous factories and other worksites.

The Roberts Court, which now has a 6-3 Republican majority, is often very hostile toward the rights of unions — even when those rights are clearly established by existing law. In Janus v. AFSCME (2018), for example, the Supreme Court overruled a 41-year-old decision permitting unions to collect certain fees from non-members who benefit from the union’s services.

But, to rule against the unions in Cedar Point, the Supreme Court wouldn’t simply need to undermine many years of decisions benefiting unions. Such a decision could profoundly rework the balance of power between landowners and the government, undercutting huge swaths of state and federal law in the process.

A justice who may be inclined to spite the United Farm Workers in Cedar Point, in other words, needs to ask themselves if they also feel safe eating out at a restaurant that is closed to health inspectors. your social media marketing partner