Neil Gorsuch
Then Supreme Court Justice nominee Neil Gorsuch listens to opening statements on Capitol Hill in Washington, Monday, March 20, 2017, during his confirmation hearing before the Senate Judiciary Committee. (AP Photo/Susan Walsh)

Last week, Republicans in Congress successfully stopped legislation designed to reform federal elections and protect the right to vote. Also last week, the six Republican-appointed Supreme Court justices blocked a California law designed to ensure that workers get adequate information from labor organizations in union elections. Cedar Point Nursery v. Hassid was a reminder that union elections, whether in the farms of California or the warehouses of Bessemer, Alabama, the site of a much noticed and failed effort to organize Amazon workers, are not conducted like most other elections.

Media coverage for the week focused on a case about free speech for student cheerleaders. But the implications of Cedar Point Nursery go farther—whether a California law that allows limited access to union organizers is a “taking” under the Fifth and Fourteenth Amendments, and thus requires “just compensation” if the state enforces it.

The case piles on yet another example of the “weaponization” of the Constitution against labor unions. The Court’s labor jurisprudence engendered a passionate dissent by Justice Elena Kagan in 2018. That case, Janus v. AFSCME Council 31, involved required fees paid by workers who received services from the union but refused to join. These “fair-share” laws had been passed democratically by state legislatures (and largely by Democrats). The Court majority said such fees were “compelled speech,” and thus barred by the First Amendment. The Court, Kagan’s dissent charged, was “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

The latest episode at the intersection of labor law and the Constitution, Cedar Point Nursery weaponizes the Fifth Amendment’s Taking Clause, which provides that “private property [shall not] be taken for public use, without just compensation.” Here, government employees were not the ones entering the land. Instead, California’s rule allowed entry by private parties, in this case, the United Farm Workers (UFW) Union. Under the statute, union organizers were granted access to agricultural workplaces for a certain number of days—after work hours or during breaks—to provide information to the employees about unionization. Even though the company retained its ownership, and no union representative remained on the land, in some way the land had been “taken.”

To fully understand the Court’s decision in Cedar Point Nursery one should probably know about the byzantine world of union elections. These are not like the elections most of us are familiar with. Most elections, in the pre-pandemic times anyway, allow candidates to communicate directly with voters where they are. Union elections take place on the employers’ turf. Most candidates can’t lock voters into a room for an hour to listen to their stump speech and get them fired from their job if they want to leave. In union elections, employers can require employees to listen to anti-union propaganda and be fired or docked pay if they refuse to listen—the textbook “captive audience” meeting. In ordinary elections, candidates can email voters whenever they can. Recent decisions of the National Labor Relations Board make it harder for unions to communicate with voters online.

It is thus hard for unions to get accurate information to employees at their workplace. That’s even harder to do with agricultural workers. Spread out, without easy access to the internet, these workers are unable to fully engage in the exercises of industrial democracy that union elections were intended to be when they started in the private sector under the National Labor Relations Act of 1935 (NLRA).

Certainly, employers are prohibited from making outright bribes or threats contingent on opposing the union, but short of that, they have carte blanche to make outright false claims about unions and the possible consequences of unionization, without any concern about whether the union has an opportunity to respond. When California enacted the access rule in 1975, the UFW and other unions knew the limitations of the NLRA model for elections—especially with the anti-labor Taft-Hartley Amendments of 1947 and pro-business court decisions based on that law. After more than 75 years (as I and many other commentators have observed) federal labor law continues to give employers a structural advantage, rooted in property law, to communicate their anti-labor message; the recent union election loss at the Amazon warehouse in Alabama put that employers’ advantage on display.

With all this experience, it’s no wonder that California sought to change the federal model when it passed the Agricultural Labor Relations Act (ALRA) in 1975, and with it the access provision. The U.S. Supreme Court had decided in 1956 in the private (non-agricultural) sector that the employer did not have to allow organizing by “nonemployees” on its property, unless the union organizers had “no other reasonable means of communicating with the employees.” Effectively, this came to mean that unless the employees worked in a company town, a mining camp, or a remote logging location, those not employed by the targeted employer were going to have to wait outside on the sidewalk, or a nearby strip of land, or try to get access to employees in ways that the employees might not appreciate (such as through driver license records).

A Takings Clause challenge was rebuffed by the California Supreme Court in 1976; since then, the law has basically functioned as it was intended. Unlike laws where the State might need access to do a health and safety inspection, or agricultural compliance, the use of the access law is totally dependent on a non-governmental actor’s willingness to use it. The UFW has been interested in organizing Cedar Point Nursery and another employer, Fowler Packing Company. It has concerted demonstrations and action aimed at those employers. The companies brought the access rule back into the courts, this time with a very different United States Supreme Court than would have reviewed it in 1976.

Cedar Point Nursery and its co-plaintiff challenged the law as an unconstitutional taking without just compensation. The plaintiffs do not have to quantify what the actual costs of the alleged taking would be – some cases have found the amount of just compensation as nominal as $1—leaving enough room for doubt in the minds of state regulators to gum the wheels of government for a while.

After the decision this week, it seems that we are back in the 1990s when several cases “weaponized” the Takings Clause against state land use regulations and police powers that were inconvenient or expensive for businesses or landowners. Even with this favorable case law, the words of the Takings Clause still require the state to have a public use to take property and pay just compensation. In the history of 1970s California, the “public use” served by the access rule was clear to most—the disruptions and strife that was occurring in UFW clashes with local law enforcement and employers could be curbed by labor peace through collective bargaining and no-strike clauses in labor contracts.

With a friendly Supreme Court majority and some favorable case law, the Cedar Point plaintiffs went straight at the law as a “per se taking.” In such a case, the strength of the government’s public use, even if compelling, is completely unimportant. A per se taking means the government pays up, no matter how good its reasons are. Because a per se taking is a slam dunk against the government regulation, the Court had previously limited it to cases where the regulation “deprived property of all economic or beneficial or productive use.” With those precedents squarely in hand, the trial court, a panel of the Ninth Circuit Court of Appeals and then the full court rejected the plaintiffs’ case, but not without dissenting judges calling out for Supreme Court review.

In the Supreme Court, the plaintiffs’ focus was on cases where the entry on land was neither episodic or innocuous—the U.S. firing gunshots over property, or a cable company granted one cubic foot of land. Unlike those cases, the plaintiffs here sought an injunction against not an ongoing “invasion” as the Court majority called it, but the mere possibility that labor organizers may again seek to use the decades-old law. Apparently, the landowners found the sometimes-utilized access rule either so inconvenient or so antagonistic to their views about unions, a forward looking injunction was needed.

In Janus and a 2018 case, Epic Systems v. Lewis, anti-union lawyers decided to use the First Amendment very much the way “substantive due process” was used at the turn of the 20th Century—as a pro-business doctrine that could strike down state laws that conservatives don’t like. The NLRA outlawed these “yellow dog” contracts and specifically protects “concerted activity…for employees mutual aid or protection.” But the Court, with Justice Gorsuch writing the majority opinion, now held that the NLRA did not prevent preemployment agreements that require employees arbitrate all their disputes individually, rather than in a class action or other “concerted activity.”

In a stinging dissent, the late Justice Ruth Bader Ginsburg called the majority’s opinion a return to the early 20th Century cases like Lochner v New York (1905), where substantive due process was used to overturn the New York legislature’s regulation of workers hours at bakeries. With Justice Ginsburg now gone, the task of dissenting in Cedar Point fell to one of the three Democratic-appointees—in this case Justice Stephen Breyer, writing on behalf of himself and Justices Elena Kagan and Sonia Sotomayor. Breyer’s opinion ticked off the reasons why the regulation is not a “taking”: “this regulation does not ‘appropriate’ anything; it regulates the employers’ right to exclude others.” And he warned that the Court’s ruling could have serious implications for other government programs requiring health and safety inspections of private property.

Breyer’s workmanlike dissent, however, missed the big picture. It did not cite Lochner or accuse the majority of weaponizing the Takings Clause against the labor movement. Not saying it, though, does not mean that is not what happened. In a concurring opinion, Justice Kavanaugh seemed ready to go even further than the majority; he even cited a dissenting opinion in the 1976 state challenge to the law. In that opinion, California Justice William Clark wrote that “property rights are fundamental.” This quote, and Kavanaugh’s endorsement of it as “exactly right,” suggests a kind of market fundamentalism—a system of formal rules that does not look to whether the State may have a good or even compelling reason for regulations. In this scheme, property must always win. Unions and consumers, and states that may wish to pass progressive legislation, must lose.

Cedar Point is just one of many cases going back more than a hundred years that reaffirm historian Charles Beard’s “economic interpretation” of the Constitution—his argument that law and the Court will always be in service of capitalism. Beyond that, the conservative majority has made it clear that state government attempts to level the fields between workers and unions in free and fair elections—whether in the public, private or agricultural sectors—will also go the way of the state laws struck down in Lochner and Janus. The Roberts Court is certainly making it hard for democratic values to survive, let alone flourish, at the workplace, or at the ballot box.

Ruben J. Garcia

Ruben J. Garcia is Professor of Law and Co-Director of the Workplace Law Program at the University of Nevada, Las Vegas, Boyd School of Law.