Voting officially ends Monday for some 5,800 Amazon warehouse workers in Bessemer, Alabama, who have been casting ballots by mail on whether to unionize. It’s going to take some time to count their votes. Historic Amazon Union Vote Count Begins This Week For Alabama Warehouse.
While we are awaiting the results, the U.S. Supreme Court last week heard oral argument in Cedar Point Nursery v. Hassid, a union busting case before a radical conservative court that is hostile to workers and unions that could have a far more deleterious impact.
George Will, who has argued for a return to the Lochner Doctrine (substantive due process) which a radical Supreme Court used to strike down economic protections and worker protections, including child labor laws during the Progressive Era, George Will’s radical ‘litmus test’ for a return to the Lochner era, is all in for the radical “property rights” argument advanced in this case, once relied upon by Southern slaveholders and later by Southern segregationists against the Civl Rights Act of 1964. What an asshole. Property rights get a day in court (excerpt):
The Fifth Amendment says private property shall not “be taken for public use, without just compensation.” Cedar Point and Fowler, represented by the Pacific Legal Foundation, argue court precedents establish that the California regulation that compels them to allow union organizers on their property for 120 days a year constitutes a taking of a real property interest, for which they must be compensated. This case illustrates how governments nibble away at property rights, which provide individuals a zone of sovereignty.
Spoken like a cotton plantation slaveholder in the antebellum South.
In 1975, immediately after its creation, California’s Agricultural Labor Relations Board promulgated an “emergency” access regulation that three months later became permanent. It entitles unions to trigger, four times a year, a 30-day period during which they can “access” an agriculture business’s property for up to three hours a day “for the purpose of meeting and talking with employees and soliciting their support.” Employers are forbidden to interfere with this, and the board construes “observing” the organizers as “interference.”
Historical Note: Will leaves out that this was the result of the United Farm Workers organizing by Cesar Chavez and Dolores Huerta, both of whom were far better human beings than George Will could ever hope to be. (Mural at the top).
Jerry Brown, who was Governor of California at the time and signed the law, along with Miles Reiter, a strawberry farmer from the Central Coast of California, explain A law has empowered farmworkers for 46 years. The Supreme Court must let it be.
[Last] week, in the case of Cedar Point Nursery v. Hassid, the U.S. Supreme Court heard arguments about a historic California law that gave farmworkers the right to vote in secret ballot elections on whether they wanted to be represented by a union.
We know that law — the California Agricultural Labor Relations Act — well. Forty-six years ago, one of us was signing it as governor of California and the other was a strawberry farmer along the Central Coast of California.
We came from different perspectives then but share a common view now: The law has fulfilled its promise to bring about labor peace by giving voice to California’s farmworkers. That law, and the self-determination it brings, should not be weakened or undermined.
The unionizing campaigns in California’s agricultural fields in the 1960s and 1970s were marked by the substantial obstructions that Congress sought to eliminate in other sectors of the economy. There was violence in rural communities and chaos in the fields; grapes and lettuce were boycotted. Consumers and celebrities alike demanded union contracts for farmworkers, and the economic clash dramatized the issue. But the clash obscured a fundamental question: What did the farmworker want?
The 1975 California law was bold and unprecedented because it gave real choice to farmworkers for the first time. Procedures, modeled in part on federal law, permitted farmworkers to decide whether they wished to be represented by a union, and also set rules for management and worker relations. And with the secret ballot, farmworkers could vote for or against unionizing, free of reprisal or coercion.
In the current proceeding, today’s Supreme Court is reaching back to that law 46 years after its passage and considering if a provision that allows union organizers limited access to agricultural fields in order to reach workers should be outlawed. (The California Supreme Court upheld the provision in 1976.)
This “access rule” has long accommodated employees — many of whom speak no English — without burdening employers. And it facilitates a transparent competition for the hearts and minds of farmworkers.
[T]he mere existence of these rules has quelled the controversy that previously marked farmworker organizing campaigns. By distinguishing fair from unfair labor practices, employers and unions know the rules. And it is the rules that bring clarity.
Our purpose is not to argue the jurisprudence on “administrative takings” or the reach of federal labor law. We write to stand up for our state’s unique Agricultural Labor Relations Act, with a heartfelt reminder of what labor relations were like in the fields of California before this law.
A generation after it empowered farmworkers and calmed the turmoil in the fields, the law is now under threat. In the midst of a pandemic and with renewed understanding of the essential role that farmworkers play, the U.S. Supreme Court should recognize that this special law has given voice to men and women who do the work that feeds America.
George Will looks down his patrician nose and sniffs:
California’s government has granted the union an easement, which is a right to cross or otherwise use another person’s land for a specific purpose. A divided U.S. Court of Appeals for the 9th Circuit affirmed a district court’s ruling that an easement is not a “classic taking in which government directly appropriates private property.” This is true but not decisive.
Cedar Point and Fowler argue that the Supreme Court “has repeatedly recognized that the taking of an easement is a permanent physical invasion of property that triggers a categorical duty of compensation.” The court has held that the right to exclude persons from one’s property is “universally held to be a fundamental element of the property right.” When government denies the right to exclude, for the benefit of a third party, compensation is required, even if the easement is not around-the-clock throughout the year.
The 9th Circuit mistakenly equated the easement as a mere regulatory restriction on Cedar Point’s and Fowler’s use of their property. Actually, the easement granted by government to union organizers is the taking of property for up to 360 hours a year for the government’s purpose of encouraging unionization. This constitutes what the Supreme Court has called, in another takings case, the “imposition of . . . a servitude.”
Will then cites the slaveholder Founding Fathers who enshrined slavery in the U.S. Constitution for their notion of “property rights” as an explanation of the takings clause.
This is essentially the same argument made by Southern segregationists in response to the Civil Rights Act of 1964: If the government was going to force Southern businesses to “serve Negroes,” then the government should have to pay the businesses for each Negro they allowed on their property.
Nikolas Bowie explains, Do We Have to Pay Businesses to Obey the Law?
[This] was the Supreme Court argument of Moreton Rolleston Jr. shortly after Congress passed the Civil Rights Act of 1964. The white owner of an Atlanta motel, Mr. Rolleston took pride in never serving Black customers. Yet the new civil rights law prohibited him from discriminating on the basis of race.
Mr. Rolleston promptly sued the government. Among his claims, he argued that a business’s right to exclude unwanted visitors was a “property right.” Because the Fifth Amendment declares that “private property” cannot be “taken for public use without just compensation,” he wanted the government to pay him $1 million for taking away his right to exclude Negroes.
No doubt muffling its laughter, the Supreme Court responded simply, “The cases are to the contrary.” The cases it cited interpreted the Fifth Amendment to require “just compensation” only for literal seizures of land. These cases permitted the government to pass civil rights laws, fair housing laws and anti-retaliation laws. They did not require the government to pay people not to discriminate.
The new case, Cedar Point Nursery v. Hassid, involves California agribusinesses that each employ hundreds of farmworkers. Instead of discriminating against Black people, these businesses want to discriminate against union organizers.
[E]choing Mr. Rolleston’s campaign against the Civil Rights Act, many agribusinesses complained that the access rule took away their property right to keep unwanted people off their land. But as in Mr. Rolleston’s case, California’s Supreme Court upheld the access rule in 1976. The U.S. Supreme Court dismissed an appeal “for want of a substantial federal question.”
Now, more than 40 years later, the same access rule is back before the U.S. Supreme Court. One of the largest grape growers in the nation, the Fowler Packing Company, has prevented the United Farm Workers from meeting with workers on company land. When the union filed a complaint with the state, Fowler joined another agribusiness, Cedar Point Nursery, and sued to strike down the access rule. They again argue that California must pay them not to discriminate against union organizers.
Yet in contrast with Mr. Rolleston’s blunt language, the agribusinesses’ lawyers have so far avoided much public scrutiny by speaking high legalese.
[O]ne explanation for why the Supreme Court agreed to reconsider Mr. Rolleston’s argument in this form is that the conservative justices are in the middle of a campaign to undermine labor unions. Workplaces have long been the main forum in which organizers encourage workers to act and bargain collectively. If governments must pay businesses untold sums for each on-site organizing campaign, then governments might withdraw the meager legal protections such campaigns now receive.
That might sound great for opponents of organized labor. But Mr. Rolleston’s rule would affect far more than union organizing. For example, health and safety laws require businesses to give unwanted inspectors “access” to their workplaces. Mr. Rolleston’s rule would require the government to pay “just compensation” every time a health inspector searches for rats.
Affordable housing laws similarly require landlords to give low-income tenants “access” to their rental properties. Mr. Rolleston’s rule would require the government to pay landlords who would rather exclude these or any other tenants.
And laws that prohibit employers from firing workers who complain of harassment also, in effect, protect these workers’ “access” to the workplace. Mr. Rolleston’s rule would require the government to pay employers to rehire anyone they illegally fired.
Supreme Court reporter Ian Milhiser adds, The sweeping implications of the Supreme Court’s new union-busting case (excerpt):
The plaintiffs in Cedar Point ask the justices to so radically reshape the Court’s approach to property rights that some of the most basic state and federal health and safety laws could fall. Among other things, if the Court accepts the plaintiffs’ argument that farm owners have a constitutional right to kick union organizers off their property, it could also mean that restaurants have a constitutional right to keep health inspectors from entering their kitchens, or that factory owners can prohibit the government from inspecting their machines to make sure those machines are safe to operate.
Cedar Point is one of the most radical property rights cases to reach the justices in a long time. And its plaintiffs ask for a significant reshaping of the American social contract.
Milhiser then explains why right-wing pundits like George Will, who is not a lawyer, should not pretend like he is one in his columns:
[T]he Supreme Court has repeatedly held that laws granting unions a limited right to enter an employer’s property and speak to workers are constitutional. As the Court held in Central Hardware v. NLRB (1972), the government may require an employer to allow a union onto its property so long as “the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer’s premises; and (iii) the duration of organization activity.”
But the Cedar Point plaintiffs don’t just ask for a decision that could sweep away decisions like Central Hardware. They ask for such a broad power to exclude others from private property that even things like health inspections could be endangered.
[T]he Cedar Point plaintiffs argue that this limited intrusion of their property amounts to what is known as a “per se” taking. Current law distinguishes between per se takings, which involve unusually severe intrusions on private property and are treated with particular skepticism by courts, and milder intrusions on property rights that fall under the broader umbrella of “regulatory” takings. Notably, the Cedar Point plaintiffs do not argue that California’s union access rule is a regulatory taking — so they appear to have made a strategic decision to avoid more measured legal arguments in favor of their more radical claim.
Property owners subject to a per se taking will generally prevail in court, while plaintiffs who allege a regulatory taking often lose — even if they challenge a land use regulation that imposes fairly substantial limits on how they can use their property. In one famous regulatory takings case, the Court upheld a New York City law that prevented the owners of Grand Central train station from constructing a high-rise office building on top of the terminal.
Very few cases qualify as per se takings. Under existing precedents, a law doesn’t count as a per se taking unless it deprives a property owner of “all economically beneficial or productive use” of their property, or subjects the property owner to a “permanent physical occupation” of their land.
So, under this framework, California’s union access rule is not a per se taking. Though a union that successfully organizes a workplace is likely to secure a contract that requires the employer to pay more money to its workers, unionization does not deprive an employer of all economic benefits from their land. And California’s rule does not allow anyone to permanently occupy a property owner’s land. It only allows union organizers to enter that land for a few hours a day, and only for about a third of the year.
[The] distinction between licenses and easements matters because in Nollan v. California Coastal Commission (1987), the Supreme Court held that, if the government seeks a “public easement across a landowner’s premises,” then the Takings Clause requires the government to compensate that landowner. The Cedar Point plaintiffs rely heavily on Nollan in their brief, arguing that the California union-access regulation “appropriates an easement across the property of all agricultural businesses in California” by stripping those businesses of the right to exclude certain people from their land.
Essentially, they argue that this alleged easement amounts to a per se taking because it permanently gives unions a right to visit certain worksites — even if the unions can only enter those worksites some of the time.
The state concedes that its regulation “is similar to an easement insofar as it affords union organizers a ‘nonpossessory right to enter’ the property of agricultural employers.” But the state ultimately argues that its regulation only grants “some form of license” to union organizers.
t’s a strong argument because, while the California regulation does diminish some property owners’ rights to exclude unwanted visitors, it does not resemble an easement in one very important way. The California regulation does not permanently transfer any of a farm owner’s property rights to unions. The unions do not own anything because of this regulation.
If California were to repeal its regulation tomorrow, the unions would be left with nothing. Had the California regulation actually imposed an easement on farm owners, then unions would retain their ownership of this easement even after the regulation that established it ceased to exist. Under Nollan, if the unions had obtained an easement allowing them to enter private land, then the Takings Clause would forbid California from taking this easement from them without compensating them.
[T]o the extent that the Supreme Court is uncertain whether to classify the rights granted to unions by California’s regulation as a “license” (and therefore as more permissible under the Constitution) or an “easement” (and therefore subject to the Takings Clause’s restrictions), there are profound practical reasons to prefer the former option.
The state’s brief in Cedar Point spends several pages explaining just how many laws could become invalid if the government cannot require landowners to allow unwanted persons onto their property.
“The categorical rules proposed by petitioners and their amici would also imperil a wide variety of health- and safety-inspection regimes,” the state’s legal team writes. “These include, among many others, food and drug inspections, occupational safety and health inspections, and home visits by social workers,” as well as a federal law providing that “underground mines must be inspected ‘at least four times a year.’”
States also frequently enact laws allowing non-governmental workers to enter onto private land. “Many States authorize utility companies and similar entities to enter private property, even absent the owner’s consent, for surveys, repairs, connections, and similar purposes,” the state’s brief explains.
And, in what is likely a bid to secure the votes of conservative justices who support strict enforcement of immigration laws, California argues that the rule proposed by the Cedar Point plaintiffs could prevent law enforcement from arresting many undocumented immigrants.
Although longstanding legal principles permit “entries onto private property to make arrests or enforce criminal laws,” these principles “do not appear to apply to entries by Border Patrol agents to enforce noncriminal immigration laws, or by other government officials to enforce other civil laws.”
George Will didn’t think of that, did he?
US laws permitting unwanted persons to enter a property owner’s land, moreover, stretch back to the early days of the American Republic. Indeed, a Massachusetts law from the 1640s, when the state was still a British colony, provided that “‘any man … may pass and repass on foot through any man’s propriety’ in order to access ‘great ponds’ for the purpose of fishing or fowling, so long as the entry did not damage the property.”
The strict limits on governmental regulation of property rights proposed by the Cedar Pointplaintiffs, in other words, are quite novel. And those limits could invalidate countless state and federal laws, preventing health inspectors from investigating potentially unsafe businesses, and preventing workplace inspectors from investigating dangerous factories and other worksites.
[T]o rule against the unions in Cedar Point, the Supreme Court wouldn’t simply need to undermine many years of decisions benefiting unions. Such a decision could profoundly rework the balance of power between landowners and the government, undercutting huge swaths of state and federal law in the process.
Ian Milhiser follows up after oral argument, The Supreme Court confronts a union-busting argument that’s too radical even for Kavanaugh (excerpt):
[S]everal conservative members of the Court — Justice Brett Kavanaugh was particularly outspoken on this point — appeared taken aback by the radical arguments advanced by the plaintiffs in Cedar Point.
So, while the Cedar Point plaintiffs asked the Court to revolutionize American property rights law, potentially giving landowners broad immunity from a wide range of laws, several members of the Court appeared taken aback by the implications of such a revolution. Cedar Point could very well end in bad news for farm workers’ unions in California. But it seems less likely to end in catastrophe for them — or for government regulation of land use generally.
* * *
Justice Kavanaugh [was] exasperated, and he seemed to want to take the Cedar Point plaintiffs’ most radical arguments off the table.
“I’m a bit mystified by some of the arguments here,” Kavanaugh told Thompson. The Cedar Point plaintiffs, according to Kavanaugh, are “asking us to reinvent the wheel.” And there is no need to do so when the Court already “decided in 1956 how to balance union rights against property rights” when it handed down its Babcock decision.
But the fact that the conservative Kavanaugh appeared eager to shrink this case into a simple application of a 65-year-old legal precedent suggests that the Pacific Legal Foundation is unlikely to achieve the revolution it sought.
[I]t remains to be seen what the Court actually decides in Cedar Point. Some members of the Court’s right flank, especially Justice Neil Gorsuch, appeared sympathetic to the Cedar Point plaintiffs’ most radical arguments. Perhaps Gorsuch will convince four of his colleagues to go along with him.
After Monday’s argument, however, it appears more likely that something similar to Kavanaugh’s view will prevail and that the Pacific Legal Foundation’s revolution will, at the very least, have to wait. If that happens, it will likely be because conservative lawyers overreached and asked for too much, even from this Supreme Court.
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