Safety, Health, and Union Access in Cedar Point Nursery
From the late 1960s until the mid-1970s the United Farm Workers (UFW ) union was embroiled in a war, and not merely a figurative one, with a corrupt coalition of agricultural employers and the International Brotherhood of Teamsters (IBT). During this era, union organizing of California farmworkers was plagued by open, violent conflict. After years of such bloody confrontations, the California legislature enacted a labor law designed to allow the UFW to engage in peaceful unionization efforts and win representation rights through secret ballot elections. Winning union elections, in turn, would position the UFW to secure its substantive goals: collective bargaining agreements that protect farmworkers from pesticide poisoning and raise their wages. The Agricultural Labor Relations Act (ALRA) of 1975 was thus California’s attempt to replace open warfare with a union elections process that would enable farmworkers to peacefully bargain for safety and health and livable wages.1 The access provision challenged in Cedar Point Nursery v. Hassid 2 —which gives union organizers the right to talk to farmworkers on grower property as part of the election process—is an integral piece of that labor law.3
California needed to enact a special labor law for farmworkers because agricultural workers are excluded from the coverage of federal labor law and have been since the beginning; the National Labor Relations Act’s (NLRA) definition of employee does “not include any individual employed as an agricultural laborer.”4 The ALRA however provides farmworkers with a process for organizing and electing union representatives similar to the one contained in the NLRA.5 The process involves union organizers speaking with farmworkers, asking them to sign cards authorizing union representation, and then petitioning for a secret ballot election in which the workers vote yes or no on unionization.6 If the workers vote to unionize, the grower-employer then has a legal obligation to bargain collectively with the workers’ union over terms and conditions of employment, including safety and health.7
Given the difficulties inherent in building electoral support among a highly mobile workforce,8 the Agricultural Labor Relations Board (ALRB)—the state agency charged with administering the Act— promulgated a rule establishing that the right to unionization includes “the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”9 Under this access provision, a maximum of two union organizers may enter an employer’s property in order to speak to workers for a maximum of three hours in a day— one hour before work begins, one hour during the workers’ lunch break, and one hour after work ends—during a maximum of four thirty-day periods in a year.10 Because the right to access is tied to the union electoral process, it terminates after an election is held.11 A stated purpose of both the statute and the regulation is “bringing certainty and a sense of fair play to presently unstable and potentially volatile conditions in the agricultural fields of California.”12
The access provision was challenged by two large California agricultural employers (“growers”) as effecting an unconstitutional taking of property under the Fifth and Fourteenth Amendments.13 In its opinion, the Supreme Court is clear about its normative orientation to the challenge: it writes that judicial protection of property rights “is necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.”14 Wary of California interfering with large agricultural employers’ ability to shape their own destinies, the Court holds that the union access provision “appropriates for the enjoyment of third parties the owners’ right to exclude.” And because the “right to exclude"15 is one of the most treasured rights of property ownership,” the state regulation granting limited access to the growers’ property constitutes a per se physical taking.16 California, if it wishes to provide union organizers access to grower property, must pay the growers for that access
The practical implications of the Cedar Point holding for labor law, outside the California farmworker context, are—for better or worse— most likely limited.17 This is true because union access rights in the rest of the private sector have already been decimated by the Supreme Court through its cramped reading of the NLRA. In Lechmere, Inc. v. NLRB, decided in 1992, the Court held that union organizers have no right to access employees on company property except in the very rare cases where employees are “by virtue of their employment, . . . isolated from the ordinary flow of information that characterizes our society.”18 Describing the union’s burden of establishing the requisite isolation as a “heavy one,” the Lechmere rule allows access only in contexts like logging and mining camps—contexts that hardly exist today.19
To be sure, Cedar Point meaningfully limits the prospects for legislative amendments to the NLRA that would expand organizer access rights. Recognizing, as California did, the critical importance of such access rights—recognizing, as the access regulation itself states, that the effectiveness of unionization rights “depends in some measure on the ability of employees to learn the advantages  of organization from others”20—numerous scholars and policy makers have argued that the NLRA ought to be amended in just this way.21 Those attempts now face a constitutional barrier. And Cedar Point may also threaten, or at least raise questions about, other important NLRB doctrines, including those regarding access rights for off-duty employees and off-site employees,22 and potentially those regarding employee use of employer email systems23 and employee rights to discuss unionization at work.24
The focus of this essay is not, however, on what Cedar Point may or may not imply about future doctrinal development. Nor is it about the very important ways in which the case exemplifies this Supreme Court’s privileging of business interests over workers’ rights,25 its elevation of property values over democratic ones,26 and its denigration of unions across multiple areas of law.27 Instead, this essay makes a different argument: that Cedar Point is internally inconsistent and that it is wrong on its own terms. The fact that such internal inconsistency— with its predictable political slant—is all too common for this Court neither excuses the practice nor renders a critique of it moot.
Sachs, Benjamin I.
"Safety, Health, and Union Access in Cedar Point Nursery,"
Supreme Court Review: Vol. 2021, Article 4.
Available at: https://chicagounbound.uchicago.edu/supremecourtrev/vol2021/iss1/4