The U.S. Supreme Court declared unconstitutional a California regulation that required agriculture employers to give union organizers access to their premises.  The Court held that by requiring employers to provide such access, the regulation amounted to an unconstitutional taking of private property in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution.

Below, we examine the facts and holding of the Cedar Point Nursery case.  Although the case examined a California regulation for an agricultural employer, who is exempt from the National Labor Relations Act (NLRA), we will also look at how this holding may impact the rights and obligations of private employers everywhere with respect to prohibiting on-premises union organizing by non-employees.

The Cedar Point Nursery Case

Union organizers from the United Farm Workers union entered the premises of Cedar Point Nursery, a strawberry grower in Northern California, early one October morning.  Cedar Point Nursery employs about 500 seasonal and full-time workers, none of whom live on the premises.  According to Cedar Point Nursery’s complaint, in October 2015, at five o’clock in the morning, members of the union entered Cedar Point’s property without prior notice and used bullhorns to rally hundreds of workers, causing some to join the organizers in protest and others to leave the worksite altogether.

The union claimed it had the right to enter the property unannounced to rally workers under California’s Agricultural Labor Relations Act, which protects agricultural workers right to form and join unions.  Under the regulations adopted under the Act, this right of organization includes the right of union organizers to “access” agricultural employers’ property in order to solicit support for the union.  In other words, the employees’ statutory right to organize compelled employers in California to open their premises to union organizers (for up to 3 hours per day, 120 days per year by the terms of the regulation).  Note that these union organizers were not employees, so their only business on an employer’s premises was to solicit support for union activities.

Cedar Point filed suit in federal court to ask for an injunction to prevent the union organizers from attempting to enter their property again.  Cedar Point argued that the regulation requiring it to provide the union organizers’ access to its property was an unconstitutional physical taking of their land.

The Court agreed.  A 6-3 majority held that the access regulation was a per se physical taking because it gave the unions a right to “physically invade” the employer’s property.  The Court found that this right to “invade” the property given by the regulation was different from those regulations that merely restrict how a property owner uses land.  That is, the access regulation here did not simply restrain the employer’s use of its own property; it took away entirely the company’s right to exclude others from its land and gave the right of access to a third party – union organizers.  Thus, the access regulation was unconstitutional.

What does this case mean for private employers?

Much like California’s Agricultural Labor Relations Act, the National Labor Relations Act also gives employees a right to self-organization.  So too does the NLRA make it an unfair labor practice for an employer to interfere with this right.

Most private employers in the United States are governed by the NLRA.  Access rights are often an issue under the NLRA.  But, the NLRA has been construed to permit employers to exclude non-employee union organizers from their premises except under two circumstances – 1) when the union organizers have no other reasonable means for accessing the employees (for instance, if the employees live on the premises), and 2) when the exclusion would be discriminatory.

The National Labor Relations Board (NLRB) recently narrowed the circumstances that would constitute discrimination under the second exception.  In a 2019 case, the NLRB determined that an employer would commit an unfair labor practice by excluding union organizers only if it permitted other groups access for activities similar to what the union sought to engage.  In other words, an employer could deny access to non-employees seeking to engage in organizing activities on its property while allowing non-employee access for other charitable, civic, or commercial activities that are not similar in nature to organizing activities.

Interestingly, Justice Kavanaugh noted in his concurring opinion that the circumstances compelling an employer to permit access to union organizers under those NLRA exceptions constitute a “necessity” that will not amount to a taking because, as the Majority put it, it is consistent with longstanding background restrictions on property rights.  This seems like a massive stretch.  The right of non-employee union organizers to enter employer premises to solicit union support is hardly a traditional common law privilege to enter private property, like entering to avoid an imminent public disaster or the right of law enforcement to enter to conduct a search or arrest.  To the contrary, it is a statutory right created within the last century.

Whether the access rules under the NLRA will withstand a constitutional challenge in light of the holding in Cedar Point Nursery remains to be seen.  For now, employers should gain a full understanding of the access rules applicable to their property in the states where they operate and be sure to have appropriate polices in place to protect their property rights to the extent permissible under the law.