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In a significant victory for California agricultural employers, the Supreme Court recently held that California’s regulation requiring agricultural companies to permit union organizers on their property was an unconstitutional taking of private property without just compensation. Cedar Point Nursery v. Hassid, Case No. 20-107. The regulation permitted union organizers to remain on company property for up to three hours per day, 120 days per year.

The district and appellate courts had concluded that the regulation did not amount to a taking of property because it did not allow the general public to access the property on a permanent and/or continuous basis. The Supreme Court, however, held that the regulation amounted to the taking of an easement over the employers’ property on behalf of labor union organizers. Though acknowledging that the easement did not allow permanent occupation, the Court found that the intermittent and temporary nature of the easement was only relevant to the amount of compensation that would be owed as a result of the taking.

So, what does this mean for nonagricultural employers and their ability to exclude union organizers from their property? To start with, the Supreme Court’s Cedar Point Nursery decision is unlikely to disturb the National Labor Relations Board’s (NLRB or Board) long-standing rule that an employer cannot exclude union organizers from its private property where its employees are otherwise inaccessible to the union (in remote locations such as logging camps, mining camps, mountain resort hotels, etc.). In fact, Justice Kavanaugh wrote a concurring opinion in Cedar Point Nursery explaining his view that the Court’s holding was consistent with the NLRB’s “inaccessibility” rule.

Beyond that limited and rare circumstance, however, the answer as to how the Cedar Point Nursery decision is likely to be applied in the future is – in classic lawyer fashion – a combination of “it depends” and “we’ll see.”

On the “it depends” side, the Supreme Court noted in its opinion that the property in question was not open to the general public, and it distinguished prior cases involving publicly accessible locations. Accordingly, courts may decline to apply the Cedar Point Nursery decision in cases concerning union access to shopping malls, grocery stores and other such properties. In other words, the applicability of Cedar Point Nursery may depend on the particular type of property that is the subject of the relevant dispute over access.

In regard to the “we’ll see” part of the response, the NLRB under former President Trump issued a series of decisions that expanded the right of employers to exclude union officials and representatives from private property. In UPMC Presbyterian Shadyside, for example, the NLRB held that the employer had the right to exclude union representatives from a hospital cafeteria, which was generally open to the public, after they used the space to solicit on behalf of the union. Thus, because current NLRB precedent already accords expanded protection to employer property rights (as compared to prior precedent), the Supreme Court’s Cedar Point Nursery decision is likely to have little immediate impact.

If and when President Biden’s two nominees for the NLRB are confirmed, however, the Board may revisit Trump-era precedent on this question. Depending on how a Biden Board decides to balance employer property rights and organized labor’s interest in having access to employees, Cedar Point Nursery may become critical. In other words … we’ll see.

Bottom line: The implications of the Supreme Court’s Cedar Point Nursery decision beyond the California agricultural industry may not be apparent until the upcoming Biden Board provides an indication of how it will lean in union access cases. We’ll continue to monitor this developing issue.

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