Labor Relations Insight Redux by Phil Wilson

In the last issue of INK, through a technical glitch we accidently posted a prior version of Phil’s Insight article.  Here is the article that was supposed to have been posted as the June Insight.

Cedar Point Nursery and Organizer Access to Private Property

Yesterday the Supreme Court issued its decision in Cedar Point Nursery. The 6-3 decision split along the conservative-liberal wings of the Court. Justices Breyer, Kagan and Sotomayor dissented from the majority opinion delivered by Chief Justice Roberts.

The central question in Cedar Point was whether a provision in the California Code requiring agricultural companies to give union organizers access to their property was an unconstitutional “taking” under the fifth amendment. The provision allows that organizers can be on the property up to 3 hours per day for 120 days per year. The original rule was adopted in 1975 at the urging of the United Farmworkers under the leadership of Cesar Chavez.

The Supreme Court majority held that the provision is a “per se” taking, and that the State could not provide this access to organizers without just compensation. Justice Robert wrote:

“The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”

When I first mentioned this case I questioned whether the resulting decision would help curb some of the most egregious elements of the Pro Act or other potential decisions at the NLRB. Unfortunately – although predictably – the majority issued a narrow opinion. While the provision is unconstitutional, it is only so because it doesn’t offer the growers compensation for the taking. Just like in eminent domain cases, the state is not prohibited from ever encroaching on private property. Instead, they must offer just compensation when they engage in a taking.

The Majority remanded the case back to California for courts there to determine how to handle this taking. One can certainly imagine that the State will determine that it will pay the growers (or ask unions to pay the growers) a fee for access to employees. The just amount for that fee will be open to debate. But what’s basically closed for debate is whether the state can require the employers to provide access to organizers – under Cedar Point they can, so long as they provide just compensation.

I’m pretty sure what the State of California considers “just” isn’t going to be much, so that’s likely to be the next fight. But the bottom line is that employers covered by California law can now be compelled to provide access to organizers if provided just compensation. That’s much broader than the access rights under the National Labor Relations Act (NLRA).

The Cedar Point case does not cover access rights for private employers covered by the National Labor Relations Act (NLRA). However, Justice Kavanaugh anticipated this question in his concurring opinion that explicitly makes the point that the Cedar Point decisions should be read in conjunction with the Court’s opinion in Babcock and Wilcox which was decided under the NLRA. Kavanaugh wrote:

“Against the backdrop of the Constitution’s strong protection of property rights, the Court interpreted the Act to afford access to union organizers only when “needed,” ibid.—that is, when the employees live on company property and union organizers have no other reasonable means of communicating with the employees. As I read it, Babcock recognized that employers have a basic Fifth Amendment right to exclude from their private property, subject to a “necessity” exception similar to that noted by the Court today.”

This is the most important question raised by Cedar Point for private sector companies. Can the NLRB (or Congress) require employers to provide access to union organizers even if that access isn’t technically “necessary” under the Babcock framework? If the employer is given “just compensation” for the taking, could the NLRB rule that employers are required to let organizers meet with employees on company property and during work time? Justice Kavanaugh’s opinion certainly suggests no – but he wrote his concurrence alone which is a little troubling.

This decision is another great example of why it is so important for employers to be proactively Left of Boom in their employee relations environment and practices. In other words, the best way to avoid disputes about organizer access to your employees is to not be a target in the first place.

If you’re looking for some timely, practical tips on how to do that check out our Pro Act Pivot webinar later today. If you happen to read this after the live webinar, you can still sign up to listen to the recording.

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