Supreme Court Hears Oral Argument in Fifth Amendment Suit Challenging Union Organization
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On March 22, 2021, the Supreme Court of the United States heard oral argument in Cedar Point Nursery v. Hassid. This suit was brought by a California strawberry nursery to challenge a decades-old California regulation that permits organizers to enter the property of agriculture businesses for the express purpose of union organization. The business argued that the regulation violated the Fifth Amendment of the Constitution, which prohibits property takings by the government without just compensation.
The nursery petitioned the Supreme Court to review the case after a federal district court rejected its Fifth Amendment argument, and the Ninth Circuit Court of Appeals upheld the district court’s ruling. In the petition for certiorari, the nursery argued that while the Court has held that an easement cannot be taken without just compensation, federal courts of appeals were divided on the question of whether a “continual, but time-limited easement” like that imposed by the California regulation was a “permanent physical invasion” or merely a restriction on property use. The nursery also argued that the Ninth Circuit’s decision would impact other areas of property right litigation where a right to exclude has been recognized, such as public beach access easements.
At oral argument, the attorney for the business argued that because the regulation gives union organizers the right to enter onto the property and remain on the property for a period of time without express permission from the business itself, the regulation created a “taking.” The business argued that the time limitations on the organizers was a factor in determining how much compensation they are owed by the state for the imposition of the union organizers on their property, not a dispositive fact cutting against a finding that a taking by the government occurred at all.
Justice Kagan told the attorney for the business that she was skeptical that “the denial of a right to exclude counts as a discrete interest in property.” Justice Kagan referred to the Court’s decision in Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987) in stating that while the “right to exclude” is “one of the sticks” possessed by a property owner, discrete interests in property (including easements) are usually held by contract.
Justice Thomas questioned the attorney for the business as to whether the California regulation created an easement at all, despite the fact that this assumption was baked into the argument put forward by the business in its petition for certiorari and at oral argument. The attorney for the business said that it did not matter whether the regulation was technically an easement, and that its “right to exclude” was denied routinely, “more than a series of mere trespasses.”
Chief Justice Roberts asked the attorney for the business whether a ruling in favor of the business would impact government inspections, and the attorney responded that it would not because property owners did not have the right to bar the government from entering the property to conduct searches. Several other Justices, including Justice Breyer, repeated this concern.
Justice Kavanaugh questioned why the business was asking for the Court to “reinvent the wheel” under a Fifth Amendment theory when NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956), offered a simpler solution to the problem. In that case, the Court held that the nondiscriminatory refusal of employers to permit distribution of union literature by nonemployee union organizers on company-owned parking lots did not unreasonably impede on their employees’ right to self-organization in violation of the National Labor Relations Act because the locations of the plants and of the living quarters of the employees did not place the employees beyond the reach of reasonable efforts of the unions to communicate with them by other means. Justice Sotomayor echoed Justice Kavanaugh’s concern, and questioned why the business hadn’t proceeded under Babcock instead of a Fifth Amendment claim.
The solicitor general of California defended the decades-old regulation at oral argument. The solicitor general’s argument was focused on the time and purpose limitations the regulation imposed on union organizers; namely, that organizers could only enter the nursery at set times for the express purpose of speaking with employees about their right to unionize. Specifically, organizers may enter the property “only for one hour before the start of work, one hour after the completion of work, and one hour during employees’ lunch break” for “the purpose of meeting and talking with employees and soliciting their support.” In addition, access is limited “to the parts of the property where employees congregate before and after working and where employees eat their lunch.” The regulation also imposed additional limitations to the access, use, and conduct of organizers on the property.
According to the solicitor general, the access imposed by the regulation on businesses was not an easement, and was instead a “regulatory scheme that applies to a particular thpe of business conducted on the land, and the access is not to a particular pathway or parcel,” but instead to the “employees, where they are.”
Although the solicitor general conceded that a regulation that imposed a 24-hours per day, 365-days per year access right could be a taking, the Court pushed him on where the line was. The solicitor general responded that there are no regulations on record that are “anywhere close to continuous.”
Listen to oral argument here: Cedar Point Nursery v. Hassid.
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