This article originally appeared on Law360 on June 25, 2021.
On Wednesday, June 23, 2021, the U.S. Supreme Court issued its decision in Cedar Point Nursery v. Hassid. The ruling invalidated a California labor regulation that requires growers to grant union organizers seeking to represent their workers property access, and declared it an unconstitutional taking of the grower’s property in violation of the 5th and 14th Amendments. Several other California laws and decisions sanction similar union trespass onto private property. For example, numerous state court decisions have granted unions access to private property of employers with whom they have a dispute on the theory that such access is required in order to enable labor to communicate its message to the public and to put economic pressure on the employer. Likewise, California’s statutes have been applied to grant special protections to labor speech and to bar courts from enjoining union trespass on private property. See e.g., Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, 55 Cal.4th 1083 (2012); UFCW, Local 324 v. Superior Court of Los Angeles, 83 Cal.App.4th 566 (2000); cf. Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).[i] Cedar Point offers a new avenue of attack against such union invasions of an employer’s property and a possible leg up on getting such trespasses enjoined in the future.
According to the Cedar Point majority opinion, penned by Chief Justice Roberts, the state’s access regulation constituted a per se physical taking of private property because it authorizes the invasion of that private property and, thus, strips the property owner of the right to exclude trespassers from their property. The Court also rejected the state’s argument that the state access regulation was not a taking, but a mere use restriction because the access mandated by the regulation was neither permanent nor continuous. Indeed, the Court declared the permanency and the continuousness of access largely irrelevant to a “taking” finding, noting that whether a taking is permanent or temporary “bears only on the amount of compensation due” a property owner as a result of a taking. Thus, the Court declined to adopt the theory that the state access regulation merely regulated and did not appropriate an employer’s right to exclude trespassers.
The Court further rejected its earlier decision in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) as governing precedent because, unlike Cedar Point, Pruneyard did not involve access to private property closed to the general public and, thus, did not establish that limited rights of access to such private property should be evaluated as permissible property regulation rather than a per se taking.
Unions may seize upon this distinction and argue that Cedar Point has no bearing on the constitutionality of state laws and decisions authorizing or privileging labor trespass on commercial property because that trespass typically takes place on premises that are open to the general public. However, this anticipated assertion misses the mark on at least two counts. First, because, unlike in Pruneyard where the general public was invited to the shopping center to hang out or to congregate as if in a town square, the public entering these commercial spaces are not the general public; instead, they are invited to enter this commercial property for the sole and specific purpose of patronizing the premises’ owner or occupiers. In other words, these premises are open to a limited set of invitees (who are the targets of a union) and not the general public as was the case in Pruneyard. Accordingly, these commercial properties are not analogs to town squares.
Moreover, unlike the leafletters in Pruneyard who sought access to publicize their position on a political issue unrelated to the property owner, union access is aimed directly against a property owner/occupier and intended to advance union economic interests at the expense of the property owner/occupier. Under these facts and as in Cedar Point, a property owner/occupier has a compelling business reason and a constitutionally protected right to exclude such trespassers from it property. Based on Cedar Point, and insofar as California law denies them that right of exclusion, state law, as currently written or applied, may constitute a per se taking and be subject to a successful challenge.
[i] There are two state statutes that restrict the availability of labor injunctions in California. The California Moscone Act (California Code of Civil Procedure section 527.3) prohibits certain labor-related activities on private property from being restrained, including, among other things peacefully picketing and related union activities on private property during a labor dispute. Among these lawful activities include:
- Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.
- Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers.
- Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests.
Code Civ. Proc. Section 527.3(b) (emphasis added). This restraint on state court power has been applied to restrict injunctions for trespass.
The second statute, California Labor Code section 1138.1, limits the authority of state courts to issue an injunction in a labor dispute and establishes several difficult requirements that an employer must overcome to obtain an injunction against a union, including proving with testimony by witnesses:
- unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained.
- substantial and irreparable injury to complainant’s property.
- the relief granted is greater than the injury inflicted upon the complainant by the denial of relief than will be inflicted upon defendants by the granting of relief.
- no adequate remedy at law.
- public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.
This statute has effectively prevented employers from obtaining injunctions in many labor disputes.
*Mark Ross is an attorney in Sheppard Mullin’s San Francisco office.