The Supreme Court announced Friday that it would hear Cedar Point Nursery v Hassid, a case targeting a 45-year-old California ordinance that allows union organizers to temporarily enter farm workplaces to speak to farm workers. However, the case has implications that go well beyond the organization of work. Among other things, Cedar Point could potentially allow companies to refuse entry to health inspectors and other government officials who are responsible for ensuring these companies operate safely.
The fifth amendment stipulates that private property cannot be “taken to public use without fair compensation”. Cedar Point plaintiffs argue that this “revenue clause” gives them a broad right to “exclude undesirable people” [their] Property ”, including union organizers – and that property owners are entitled to compensation if government regulation violates that right.
If the Supreme Court ruled that the government might not require a company to let unwanted people into its premises, the effects could be staggering. This could mean, for example, the government breaking the revenue clause when restaurants need to conduct regular health inspections, or when power plants need to be inspected to monitor their emissions, or when factories need to keep workplace safety inspectors to ensure compliance with working conditions.
A win for Cedar Point plaintiffs could potentially jeopardize a variety of land use regulations – such as requiring certain buildings to install sprinkler systems to prevent fire from spreading or requiring buildings to be built in seismic areas to accommodate residents to protect against tremors.
The Court of Justice could potentially also make a more restrictive decision selecting unions for inferior treatment. For example, in Janus v AFSCME (2018), the Supreme Court voted partisan to prohibit public sector unions from charging certain fees to non-union members who benefit from union services. But the court, at least so far, has not applied Janus to unions charging similar fees.
A sweeping decision at Cedar Point could fundamentally change the balance of power between the government and private property owners. And this could be done in ways that not only endanger workers’ rights, but potentially make all of our lives less secure.
California’s farm labor access rule, briefly explained
The specific regulation at issue at Cedar Point was, as Harvard law professor Niko Bowie noted on Twitter, “the result of a year-long campaign by César Chavez” and the United Farm Workers. This regulation, issued in 1975, gives union organizers limited access to agricultural construction sites, provided that those organizers notify the employer that they intend to enter a particular construction site.
In short, the regulation allows organizers to enter a construction site and speak to farm workers for up to three hours a day – the hour before work starts, the hour after work finishes, and the time workers break to lunch. Before a union can make use of this rule, however, it must inform the government and the employer that it intends to do so. After submitting the appropriate documentation, the union will have limited access to a construction site for up to 30 days. A union can invoke this right to enter a particular construction site up to four times a year.
Union organizers are allowed to work a maximum of 120 days per year and a maximum of three hours on any given day on the property of an agricultural employer.
Two types of “revenue” under the Constitution
The Supreme Court cases make a distinction between “per se” revenue, which is particularly significant interference with the property of a person who is entitled to special constitutional protection, and “regulatory” revenue, which is more restricted in the rights of landowners.
Property owners who are subject to takeover per se tend to win their lawsuit, while property owners who claim a mere regulatory takeover are far less likely to gain the upper hand – even if plaintiffs in a regulatory case are challenging a land use ordinance that places significant limits on how they can use their property. For example, in a classic regulatory case, the Supreme Court upheld a New York law preventing Grand Central train station owners from building a high-rise office building on top of the terminal.
In addition, only a few cases qualify as such. Under the existing Court of Justice precedents, the law is not law unless a particular law deprives a property owner of either “economic or productive use” of their property or subjects the property owner to “permanent physical occupation” of their land.
Given this existing framework, the California farm worker access rule should not apply as such. While the aim of union action is usually to pressure an employer to pay higher wages to its workers, the mere presence of union organizers in a workplace does not deprive an employer of economic use of property. Similarly, the California ordinance does not give union organizers the right to permanently occupy an employer’s land – it only allows them to enter that land for a few hours a day and only for four months a year.
However, Cedar Point plaintiffs are asking the court to expand its definition of the term per se to include many regulations that merely allow an undesirable person to enter a landowner’s property temporarily.
Although the California ordinance does not allow union organizers to permanently occupy an employer’s land, the Cedar Point plaintiffs argue that the ordinance gives unions a permanent right to exercise against certain landowners (in the parlance of property law as “relief ” designated). . Plaintiffs therefore argue that this case should be viewed as per se, as the California ordinance itself is permanent.
However, if the Supreme Court accepts this theory, the ramifications could go well beyond union organization.
For example, consider a city ordinance stating that “all restaurants allow a state health inspector to go into their business every three months to inspect the property for health code violations.” This hypothetical ordinance is similar to the California ordinance in that it only occasionally allows an undesirable person to enter a company’s property, but it also gives health inspectors constant authority to enter that property once a quarter.
If the California ordinance breaks the revenue clause, it’s hard to see that this health inspection ordinance – or any other law that requires companies to regularly allow a government employee to inspect their property – doesn’t also violate the fifth amendment.
Moreover, such a decision could have profound implications for virtually any land development project if the Court broadened its definition of what constitutes an acquisition per se, that is, what constitutes “permanent physical occupation” of land. Pretty basic laws that require developers to install illuminated exit signs in their buildings or to construct those buildings from sturdy, architecturally sound materials could potentially violate the revenue clause.
If it is a “permanent physical occupation” of land that allows a union organizer to temporarily enter an employer’s property for a few hours a day, then why is it not a “permanent physical occupation” of land to actually be one to demand? Developers to install a permanent physical structure in one of their buildings?
So if the Supreme Court. With a Conservative majority of 6 to 3, he decides to curtail union rights at Cedar Point and could open a can of worms that could jeopardize a long list of land use laws. At the very least, it’s difficult to distinguish California ordinance from a law that allows government inspectors to investigate whether a company is complying with health, safety, or labor laws.
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