September 20, 2021

Volume XI, Number 263

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September 17, 2021

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Supreme Court Holds Union Organizer Entry on Private Property Violates 5th Amendment

In a decision that may concern employers, the Supreme Court held on June 23, 2021, that a California state regulation that required agricultural employers to allow union organizers onto their property for up to three hours per day, 120 days per year, constituted an unconstitutional taking.

Chief Justice John Roberts, writing for a 6-3 majority in Cedar Point Nursery v. Hassid, ruled that the regulation appropriated a property owner's "right to exclude" for the benefit of the state and the unions. Because the court held the right to exclude a "most treasured right," it further held that the regulation was "per se" taking. The significance of the "per se" taking finding is that a constitutional violation is found regardless of the degree to which the regulation actually impinges on the owner's property rights and values. The dissenters would have found that the regulation was more in the nature of a regulatory taking, which would have required a showing that it "went too far" in restricting the property use. 

While the decision will likely receive significant press coverage, it is unlikely to change the landscape for most private employers. Under the National Labor Relations Act, the Board and Supreme Court have already held that non-employee union organizers have no right of access to employer property absent proof that either a) employees are inaccessible to the union absent entry onto the property or b) the employer discriminates against union related persons in applying property restrictions to areas that are generally open to the public. The California regulation governed only the agricultural industry, which is exempt from regulation under the National Labor Relations Act.

The decision does leave open a number of questions regarding warrantless access to employer premises by government agencies or their designees. The majority claimed not to be changing the law in this area. However, the dissent suggested that no clear or principled line could be drawn from the majority rationale in this regard.

© 2021 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XI, Number 176
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Ahmad Chehab Employment Attorney Miller Canfield
Senior Attorney

Ahmad Chehab focuses his practice on employment law, including advising and representing employers in collective bargaining, labor arbitrations and contract negotiation. Ahmad also has experience directing and conducting investigations of employee misconduct and developing and coordinating staff training programs. 

Ahmad has handled litigation matters in state and federal courts, as well as in various administrative agencies including the U.S. Equal Employment Opportunity Commission; the Michigan Department of Civil Rights; the U.S. Department...

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Ashley N. Higginson Employment Attorney Miller Canfield Law Firm
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Ashley Higginson's practice focuses on employment and labor issues, with particular experience in education matters.

Ashley has extensive experience working with public school districts, charter and private schools, and schools for students with disabilities. Her work includes matters involving boards of education, the Open Public Records Act, FERPA, teacher tenure, special education and 504 accommodations, teacher tenure charges, harassment and discrimination claims, public bidding and union negotiation.

Ashley has...

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Robert T. Zielinski Labor & Employment Attorney Miller, Canfield, Paddock and Stone Chicago, IL
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Robert T. Zielinski provides creative and effective representation and advice in resolving the multitude of issues that arise in today’s complex employment relationships.

This includes, but is not limited to, union organizing, negotiations and arbitrations; litigation of individual or class employment claims over discrimination, wages, benefits and so forth; and proactive advice on managing situations to avoid post-decision disputes.

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