How Devastating Is The Cedar Point Decision For Unions?

Not very, but only because the law was already very anti-union.

As widely expected, the Supreme Court ruled today in Cedar Point Nursery v. Hassid that a California law that grants union organizers access to agricultural employers’ property (for a mere three hours per day, 120 days per year) constitutes an unconstitutional “taking” in violation of the Fifth Amendment of the Constitution. I am not a constitutional expert and I was a poor property law student, so I will not delve into any deep analysis of the decision. However, it’s worth noting that this law is almost fifty years old, has survived constitutional challenges before on other issues, and was turned away by SCOTUS on this specific issue as far back as 1976. (One can only wonder what compelled the six Justices in the majority to turn their scrutiny on this law versus more timely legal challenges. But of course, this is almost the exact background of the Janus case, which overturned a SCOTUS decision from 1977.)

I do have a decent understanding of federal labor law, though, so I immediately began projecting what this decision would mean for future litigation in this field. Commentators are currently describing Cedar Point as a devastating loss for labor rights, which is certainly true in the specific case of the United Farm Workers in California, who have now lost their main organizing technique. However, I think it would be wrong to suggest this case will have disastrous implications for the rest of organized labor. That is not because the Cedar Point case isn’t anti-union in nature or is more narrow than it appears on the surface; it is because the law of organizing access to employer property in the private sector is already tremendously skewed against unions.

The skeleton of this case law was constructed in a 1956 Supreme Court decision, NLRB v. Babcock & Wilcox. There, the Court held that union organizers have no right to access employer property for purposes of leafletting or other forms of persuasion unless the organizers do not have “other available channels of communication” with the employees that can be accessed through the union’s “reasonable efforts.” This does not sound too harsh on its face, but the Court’s given standard for inaccessible workers was “if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them.” In other words, unless the employees live or work in such isolated conditions that union organizers can’t normally reach them through house visits or media advertisements, the employer can exclude the organizers from coming into contact with workers on company property. The exception will thus only realistically apply to a few isolated professions, such as loggers, miners, offshore oil drillers, and hotel workers at remote mountain resorts. This is a very small slice of American workforce.

(Even this narrow exception could be closed. See the Cedar Point majority’s language on p. 15: “Whatever specific takings issues may be presented by the highly contingent access right we recognized under the NLRA, California’s access regulation effects a per se physical taking under our precedents.”)

The National Labor Relations Board in the late 1980s attempted to bring some commonsense to this case law by seizing upon the accommodation-of-rights language in Babcock & Wilcox to create a balancing test of sorts. This test, named Jean Country, called for the Board to weigh the employees’ Section 7 rights to interact with union organizers against the employer’s property rights, achieved mostly by analyzing what alternative methods of communication were realistically available for the union if it could not leaflet on the employer’s property. But Jean Country was swiftly thrown into the dustbin by the Supreme Court. In Lechmere v. NLRB, Clarence Thomas’s first opinion as a Justice, a 5-4 majority held that Babcock & Wilcox was as strict as it seemed. No balancing test could ensue; the exception of non-employee access was truly that narrow. Except for the narrow exception we’ve discussed, the employer had an absolute right to exclude organizers from its gates and confine them to (what is usually) a narrow strip of public land well outside the gates. This applied even in factual situations like the one in Lechmere, which involved a single retail store in a shopping plaza.

This is where the law stands today regarding the vast majority of private-sector organizing. The California law only granted access rights to unions in the agricultural sector above and beyond what existed in Babcock & Wilcox because agricultural workers are explicitly excluded from the NLRA’s coverage. Cedar Point is thus a case of dragging certain favored workers (I’m using this term very narrowly) down to the level of the masses who have long been deprived of those rights, rather than a harbinger of future problems for workers covered under a different statutory scheme. California farmworkers were already an exception to a general rule, and now their ceiling has been lowered.

This also isn’t a situation in which the Court was trying to cut off an impending legislative fix at the knees. The PRO Act, even if passed, would not have overturned the Babcock & Wilcox decision. So even though that decision has essentially been crystallized for all time, this was effectively already the case.

Justice Brett Kavanaugh, to his credit, appeared to connect the dots between the non-NLRA-covered California workers and the Babcock & Wilcox precedent in the NLRA sphere. His concurrence in Cedar Point advocates for construing Babcock & Wilcox as a constitutional case (despite no such supporting language in the opinion itself) and, assumedly, applying it in broad contexts in many other legal arenas outside of federal labor law. He wrote alone, but the rhetorical connection should be worrying for unions and those generally favoring government regulation of the workplace by means of physical “invasion” (using the Cedar Point’s description of union access).

I’m interested to hear if anyone has a different take.