The Supreme Court was correct in its 6-3 ruling today in Cedar Point Nursery v. Hassid that a California regulation granting union organizers access to a business’ private property amounted to a taking without compensation of that property. The decision affirms that the right to collectively bargain does automatically supersede other rights and, therefore, unions need not be granted special exemptions from ordinary laws and regulations.
Unions have often been granted special rights or exceptions to state-level laws and regulations, including criminal ones, on the theory that when the prohibited activity involves collective bargaining, that alone makes it different. Thus, activity that would in any other context constitute stalking, trespass or harassment has sometimes been viewed as acceptable if the ultimate goal of the perpetrators involved getting workers into a union or getting a company to agree to workers’ demands. Those privileges have met more scrutiny in recent years and today’s ruling indicates the Supreme Court is giving them extra scrutiny
The Supreme Court ruled in a 1956 case, NLRB v. Babcock & Wilcox Co., that employers were not obligated under the National Labor Relations Act (NLRA) to allow union organizers onto company property if the union had other means to reach out to the workers. Cedar Point Nursery’s employees were agricultural workers, however, and the NLRA doesn’t cover them (I erroneously said otherwise in an earlier statement on the ruling).
In short, California had the ability in Cedar Point Nursery to give union organizers special access, at least as far as federal labor law went. The case instead largely revolved around the issue of whether the California regulation violated the constitution’s prohibitions on takings under the Fifth and Fourteenth Amendments. Specifically, it asked whether the access to private property that California gave the unions amounted to the state forcing businesses to give unions some of their property without any compensation.
The dissenting justices argued that that state’s intention to aid unions provided a solid rationale for the regulation. “Myriad regulatory schemes … depend upon intermittent, temporary government entry onto private property. Labor peace (brought about through union organizing) is one such benefit,” they argued.
The majority opinion said the regulation was indeed a taking and made a point of saying that the Golden State’s intention of workers’ boosting collective bargaining did not mitigate this. “[T]he regulation here is not transformed from a physical taking into a use restriction just because the access granted is restricted to union organizers, for a narrow purpose, and for a limited time,” the majority noted.
Justice Brett Kavanaugh noted in a concurring opinion, “Babcock strongly supports the growers’ position in today’s case because the California union access regulation intrudes on the growers’ property rights far more than Babcock allows.”
It’s not clear why in the age of social media such access to company property is even needed by unions. Workers interested in joining or just learning about one can reach out to the unions in a variety of ways. The California regulation served mainly as a means for unions to disrupt businesses, not reach workers. The right to collectively bargain is not threatened by the right to private property. The opposite should hold true as well: The right to private property shouldn’t be threatened by collective bargaining.