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SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Employers to Grant Union Access to Private Property

When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  However, this may soon change due to the Supreme Court’s recent order granting a hearing in Cedar Point Nursery et. al. v. Hassid where the issue presented is:

[W]hether the uncompensated appropriation of an easement that is limited in time [created by operation of the California Agricultural Labor Relations Board’s (ALRB) access regulation requiring that union organizers be granted access to employer property for organizational purposes] effects a per se physical taking [of private property] under the Fifth Amendment.

Cedar Point comes before the Court from a Ninth Circuit decision in which a majority of the court’s three-judge panel concluded that the ALRB’s access rule granting union organizers the right to come onto an employer’s property to communicate with workers were mere restrictions on the use of the employer’s land and did not rise to the level of an actionable “taking” within the meaning of the 5th Amendment.  According to the majority, the access rule did not allow union organizers to enter the employer’s land “24 hours a day, 365 days a year” and, thus, did not cause the employer to suffer the permanent and continuous loss of their right to exclude the public from their property needed to establish a “taking.”  However, on a subsequent denied petition for hearing en banc, a group of eight judges dissented from the majority’s opinion.  In their view, the rule constituted a “taking” because it granted the union an affirmative easement to access and make use of the employer’s land in furtherance of a governmental use.  Accordingly, the eight dissenters held that this state-recognized property right could not be taken or given away to a union by the state without just compensation.  They, therefore, would have declared the ALRB’s access rule invalid as an unconstitutional taking of the employer’s property in violation of the 5th Amendment.

The reasoning of the Cedar Point dissenters comes into play every time a California state law operates to grant unions unauthorized access and use of an employer’s private property.  Accordingly, depending on whether and how the Court answers the question presented, the state’s many other laws granting unions access to private property may later be subject to challenge as unconstitutional “takings” and have to be rethought.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 321
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About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

415-774-2934
John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the...

202 747 3375
James Hays, Legal Specialist, management of labor and employment law
Partner

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...

212-634-3025
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