Update On Union Access To Property – Employment and HR – United States – Mondaq News Alerts

16 July 2021

Husch Blackwell LLP

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On January 6, 2021, webloggedabout two California farms' challenges toCalifornia's regulation requiring agricultural producers togrant unions access to their property to recruit workers. Theregulation required access for three hours a day one hourbefore work started, one hour at lunch and one hour after work for a maximum of 120 days per year. The Ninth Circuitheld that this regulation did not constitute a per se taking forpurposes of the Fifth Amendment because it did not require accesson a 24/7 basis.

In a 6-3 opinion on clear ideological lines, the Supreme Courtreversed. The majority opinion held that the Court hadrecognized two kinds of takings: physical occupation ofproperty, which is a per se taking, and regulatory takings, whenthe regulation goes "too far."

The majority held that the California regulation was a per setaking because it appropriated the growers' property for thebenefit of the unions. The courts have long held that one ofthe most fundamental elements of the right of property is the rightto exclude others, and the regulation deprives the owners of thatright for up to 360 hours a year. It effectively forces theowners to grant an easement to the unions.

The majority held that the temporary nature of the easement wasirrelevant. As a matter of common sense, it makes no sense toapply one set of rules to an easement available 365 days a year andanother to an easement 364 days a year. As a matter of law, anumber of prior Court cases had held that temporary invasions ofprivate property were nonetheless a taking. For example, a1946 case found that the government had taken plaintiff'sproperty by periodically flying aircraft over it less than 100 feetoff the ground.

The majority also held that it made no difference that theregulation did not provide a common law easement as defined byCalifornia law. While state law is generally the source ofproperty rights, it would be a wholesale elevation of form oversubstance to hold that the permanent, periodic access allowed bythe regulation was not a taking.

As we predicted in our January 6 blog post, the majority wentout of its way to emphasize that its holding would not impactordinary health and safety inspections. The majority heldthat there is a clear difference between a trespass and ataking. It also held that there were various common lawexceptions to the law of trespass, such a public official'sright to arrest or to engage in a reasonable search. Andthere is nothing wrong with conditioning a permit or license on thecondition that the recipient allow reasonable health and safetyinspections.

Justice Kavanaugh concurred. While the case did notinvolve labor unions, Justice Kavanaugh thought that theCourt's opinion in NLRB v. Babcock & Wilcox stronglysupported the result. In Babcock & Wilcox, the Court heldthat Congress could authorize labor unions to enter on privateproperty to organize workers only when the unions had no otherreasonable means of communicating with the workers elsewhere.The day of the company town is over and there was no reason whyunion representatives could not contact workers at their place ofresidence.

The ruling does not mean that California cannot continue torequire producers to allow limited union access to theirpremises. It only means that California must amend itsstatutes to authorize just compensation to the owner. Theopinion does not address what compensation would be just or how itshould be calculated.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Update On Union Access To Property - Employment and HR - United States - Mondaq News Alerts