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Supreme Court hears challenge to ‘access rule’

Issue Date: March 24, 2021
By Kevin Hecteman

A California regulation allowing union organizers to recruit farm employees on a farmer's property came before the Supreme Court of the United States Monday.

The regulation in question—adopted by the California Agricultural Labor Relations Board on an emergency basis in 1975—allows union organizers to enter a farm property and speak with employees for three hours a day, 120 days a year.

Two agricultural employers—Cedar Point Nursery of Dorris and Fowler Packing Co. of Fresno—sued over the regulation in 2016 on grounds it is an uncompensated easement: an unconstitutional taking of private property by the government. District and appeals courts ruled against the plaintiffs; the Supreme Court agreed last November to take their case.

Pacific Legal Foundation attorney Joshua Thompson argued the case before the Supreme Court on behalf of the petitioning farm employers.

"The access regulation at issue in this case authorizes an easement on the property of petitioners for the benefit of union organizers," Thompson told the court, telling justices they "should hold that the taking of this easement violates the Fifth Amendment because it effects a physical taking without compensation."

There are two reasons for this, Thompson told the justices.

"First, the appropriation of a real property interest triggers a categorical duty to compensate," he said. "The access regulation authorizes the taking of a real property interest in the form of a continual right to occupy and use petitioners' property."

At a second, more fundamental level, Thompson said, "the access regulation denies petitioners the right to exclude union organizers from their property. Such an infringement on the most fundamental property right merits per se treatment."

State officials have described the rule as a temporary regulation of land rather than a taking, and as essential in organizing the migratory farm workforce.

During oral argument, Justices Sonia Sotomayor and Brett Kavanaugh brought up two previous Supreme Court decisions concerning union-organizing activity on private property.

The first, National Labor Relations Board v. Babcock and Wilcox Co., decided in 1956, held that employers may bar union organizers from entering their property if reasonable efforts through other available channels of communication would enable the union to reach employees with its message.

A second case, Lechmere Inc. v. NLRB, from 1992, also found the employer was within its rights to bar union organizers from its parking lot, as there were other ways for the union to communicate with employees.

Justice Neil Gorsuch asked Thompson to respond to an argument in support of the regulation: that ruling in the farm employers' favor "would be revolutionary and the end of all regulatory regimes—that the government would never be able to walk on anyone's property again to do a search, or conduct tests to ensure the safety of licensed operations there."

In response, Thompson said, "Every takings claim begins with: 'What is the property right that the private-property owner possesses?' That looks to background principles of property law to determine what the scope of the property right is. With respect to the government's authority to search, that was certainly present at common law, and the Fourth Amendment put limits on the government's power to search—but it certainly recognizes that that is a power that the government possessed at all times."

Gorsuch then asked whether the result would be different if the government passed a regulation allowing union opponents, health and safety advocates, or people representing an ideological cause access to private property to advocate for their causes.

Thompson said it would not be different: "The property question, the takings question, does not turn on the speech that is being advocated," he said.

Following the Supreme Court hearing, Thompson told Ag Alert® that the property-rights issue at the heart of the case "was very important to PLF. These are precisely the types of cases that we look for. We think it's an injustice."

Thompson said the support of the California Farm Bureau has been "instrumental," citing four friend-of-the-court briefs on the farm employers' behalf written by Farm Bureau Senior Counsel Carl Borden at each stage of the appeals process.

"Not only is PLF grateful for the Farm Bureau's support—and Carl in particular; his support has been unwavering since this case was first launched—but the American Farm Bureau of course filed a brief as well," Thompson said. "The court wants to hear from the people who are directly affected by this law, and there's no organization that knows about the access regulation more acutely than the California Farm Bureau."

In the most recent California Farm Bureau brief, Borden argued the state regulation contravenes U.S. Supreme Court precedent by allowing blanket access, especially when there are alternative means for unions to communicate with agricultural employees in California. Borden cited a comment by a United Farm Workers organizer to the Los Angeles Times in 2019 that "farmworkers are just like everyone else—we all have smartphones," and that the union uses social media to communicate with members and prospective members. In addition, he noted, the UFW operates radio stations in the Central Valley and on the Central Coast.

The Farm Bureau has for decades maintained a policy describing the access rule as unconstitutional; the policy was reaffirmed during the Farm Bureau Annual Meeting in December.

The case is Cedar Point Nursery v. Hassid. A decision is expected by the end of June.

(Kevin Hecteman is an assistant editor of Ag Alert. He may be contacted at

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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