Sudden workplace disruptions — a car alarm, WiFi interruption, or burnt popcorn in the breakroom — may violate our concentration but not our constitutional rights. Such a dubious honor goes to California’s legalized property invasion, whereby uninvited union organizers can invade agriculture firms’ private property to recruit members.
The U.S. Supreme Court has an opportunity this term to fix this union-designed hiccup in the Golden State’s labor law in Cedar Point Nursery v. Hassid. The case stems from an early morning in 2015 when Cedar Point Nursery fell victim to this invasion tactic during northern California’s busy harvest season. With state law at their back and bullhorns in hand, dozens of United Farm Workers (UFW) recruiters descended on the worksite, en masse, before sunrise. The union operatives then burst into trim sheds where scores of workers were busy preparing strawberry plants for shipment to fruit growers throughout the nation.
Although some workers were so frightened and intimidated that they left the premises, the union ultimately failed its mission that day; employees wanted neither the union nor the business disruption. But under the state Agriculture Labor Relation Board’s 1975 “union access regulation,” the recruiters can return again and again and again — up to three hours a day, 120 days a year, every year.
Giving unions the ability to reach workers who are otherwise inaccessible is a part of national labor law, but it has limited application only to situations where workers truly cannot be reached by other means. California’s union access rule goes further: This special trespassing privilege gives union organizers an unfettered right to speak with any agricultural workers on their employers’ turf.
That unions have a wide range of ways to reach workers when they’re off the clock matters none in California. Cell phones, internet, social media and an explosion of Spanish-language radio stations give unions many means of informing workers. Yet to this day, every agricultural business in California must allow union access up to 120 days each year, even if the union can contact workers in other multiple ways. And, of course, union organizers can speak face-to-face with workers off-site.
That’s exactly what the UFW did on that cold October day at Cedar Point Nursery. After storming Cedar Point’s property, union organizers followed workers back to nearby hotels and continued the pressure to organize.
But most employees had no interest in joining the UFW. The truth is, since the company’s beginnings in the late 1990s, Cedar Point workers have enjoyed good wages, a safe and clean work environment, and respect from management without any third-party help. These folks come back year after year, even generation after generation.
No workers should be subject to on-the-job harassment by union recruiters. No business owners should be forced to sacrifice their property rights for union intruders. And no government should enact regulations that favor politically connected groups at the expense of constitutional rights.
Fortunately, the U.S. Constitution has this latter point covered; it protects property owners’ rights to exclude trespassers. Unions are no exception, not even if their trespassing is restricted with time limits.
Determined to defend these rights on behalf of his employees and his business, Cedar Point owner Mike Fahner fought back with a federal lawsuit that goes before the U.S. Supreme Court on March 22. Cedar Point, along with Fresno-based Fowler Packing Company, are represented free of charge by my firm, Pacific Legal Foundation.
We look forward to making the argument to the justices that the California regulation’s requirement forcing these business owners to open up their property to trespassers against their will — a textbook easement — amounts to an uncompensated taking under the Constitution’s Fifth Amendment.
Union organizers absolutely have a right to free speech to make their case to the workers, but they should do so on their own time and property, or on public property. That’s why we’re asking the Supreme Court to remedy this situation, resolve a contentious split among federal appellate courts, and vindicate the constitutional right of property owners to control their land — or else be paid for it.
This op-ed was originally published by The Hill on March 22, 2021.