Sunday, April 11, 2021

The Case of Cedar Point Nursery and Fowler Packing Co. v Hassid et. al.


The Case of Cedar Point Nursery and Fowler Packing Co. v Hassid et. al

In this case, now before the Supreme Court on a writ of certiorari, Cedar Point Nursery in Northern California does not want to give access to non-employee union organizers to walk across their farm property to speak to agricultural workers, mostly harvesting strawberries. The California Labor Relations Act from 1975, patterned after the National Labor Relations Act, has a regulation allowing access by two designated organizers to agricultural workers up to three times a day – one hour before or after work, another during lunch hour – with access limited to where employees “congregate.” Organizers may enter only for meeting and talking to employees about joining a union. They must give advance notice and wear a badge. Access is limited to no more than four 30 day periods that require advance written notice to the California Labor Board and the employer. All access rights end following a union election. The maximum total of 3 hours a day for a 120 days comes to 360 hours out of 8,760 yearly hours or just over 4 percent of a years’ time.

In the petition their claim reads “The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.” A number of irregularities appear immediately. Agricultural employers challenged the access regulation 45 years ago in state courts, which invoked the access rights the Supreme Court established in the 1956 case of National Labor Relations Board(NLRB) v, Babcock & Wilcox, 351 U.S. 105 (1956), which allowed limited access.

The present case started in Federal District Court with Cedar Point attorneys demanding an injunction to ban union access as a taking of property without just compensation. The district judge dismissed them while noting that Cedar Point made no attempt to explain or negotiate a solution to problems resulting from union access, nor identify damages even though an injunction normally requires evidence of irreparable damages. In the parlance of courts they did not “pursue their administrative remedies.” To get jurisdiction in a court a petitioner should be able to explain what they did to exhaust their efforts to find a remedy and settle out of court. In dismissing the case the Judge allowed them to return when they finished doing that. Instead Cedar Point attorneys filed a petition in the 9th Circuit Court, which also dismissed the case. A petition to the entire 9th circuit, en banc, was also dismissed.

In accepting the petition for a writ of certiorari the Supreme Court justices glossed over jurisdiction issues and allowed petitioners to convert an access right to an easement, but easements typically require a written and notarized document recorded with a deed just like any other interest in real estate. A property right of value needs a definition. However, the Cedar Point petition does not make reference to a written document or the easement rights it might entail, but just declares “all agree” the access regulations will be an easement right, which allows them to allege union access denies them the right to exclude people from their property and takes from them a valuable property right. Facts in the petition accept that in 45 years of enforcement union organizers have utilized the access rule only 62 times among more than 16,000 agricultural employers. Petitioners present no claim of money damages.

Corporate America has already challenged the right of unions to have organizers come onto their property. The 1956 case of NLRB v, Babcock & Wilcox already mentioned and the 1992 case of Lechmere. Inc v NLRB, 502 U.S. 527 (1992) makes the easement claim unnecessary to end access.  Petitioner claims the case to be a matter for the federal courts and the Supreme Court agreed by taking the case, but justices merely have to cite existing precedent to prevail in the case for Cedar Point.

The unnecessary switch from access to easement suggests that wealthy corporate interests pursued Cedar Point to be a vehicle for them to make broad claims for expanding corporate authority over property rights.  They want us to believe a grave constitutional question exists over a trifling issue of limited access to farm property for two people to distribute union literature. The case shows corporate America determined to halt governmental access to private property to enforce health, safety, environmental regulations and other regulations that might protect the larger society. Below I have reviewed the two relevant cases that help illustrate a Supreme Court from 1956 when justices took some responsibility to enforce the law without regard to persons, which judges take an oath to do. The change of judicial attitudes becomes apparent in the 1992 Lechmere case but the Supreme Court of today shows further decline just by taking this case. Judge for yourself.

In Babcock and Wilcox, a manufacturer of boilers, management cited their no distribution rule for refusing to allow a union organizer to distribute union literature on company-owned parking lots. The Justices dubbed the union organizer as a “non-employee.” The plant was isolated on a 100 acre fenced parcel and employees all drove to the plant, which made the sidewalk from the parking lot to the entrance gate the only safe and practicable way to contact employees. The NLRB treated the denial as an unfair labor practice violating section 8(a)(1) of the NLRA - interfering with employees right to organize a union under section 7. The Court of Appeals reversed because they could not find the NLRA provided for access to property where no employee was involved. The Supreme Court reversed the Appeals Court.

The justices ruled “an employer may validly post his property against non-employee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message.”

The justices made clear union access would be allowed, or not, as a balance of rights: “Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.”

The justices made it important that the restriction applied to non-employees: “No restriction may be placed on the employees' right to discuss self-organization among themselves unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. But no such obligation is owed non-employee organizers. Their access to company property is governed by a different consideration.”

The justices decided the different consideration for non-employee union organizers resulted because “The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.”

In the years after Babcock & Wilcox the justices left it to the NLRB to evaluate protected opportunities to make pro-union messages.  In 1966 in a ruling known as Excelsior Underwear the NLRB allowed an employer could provide union organizers with a list of names and addresses of employees in lieu of access as long as it came within 7 days after the Board has scheduled a certification election. In 1988 in a ruling known as Jeans Country the Board declared “In all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the private property if access should be granted.”

In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) a divided Supreme Court made it all but impossible for union organizers to gain access to corporate property. In this case organizers of Local 919 of the United Food and Commercial Workers put an advertisement in a local newspaper announcing their intention to organize the 200 employees of Lechmere Stores. Later they put handbills on the windshields of cars parked in the employee section of Lechmere Store’s parking lot in Newington, Connecticut. Management enforced its long standing policy against solicitation on their property and demanded they leave and then removed the handbills. Shortly organizers moved to a “grassy strip” between the highway and the parking lot and attempted to get names and addresses of employees through license plates. They filed an unfair labor practice and the NLRB ordered Lechmere to allow the distribution of handbills and a U.S. Court of Appeals agreed. The Supreme Court reversed. Justice Thomas wrote the majority opinion, but three dissented.

Justice Thomas dropped a lead weight on the corporate side of the Babcock and Wilcox balancing test of accommodation between labor rights and property rights. In Babcock and Wilcox and in later Board rulings the NLRB was permitted to devise access practices. Justice Thomas declared that “While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists.” . . . “Babcock's teaching is straightforward: Section 7 simply does not protect nonemployee union organizers except in the rare case where ‘the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels.' ”

Justice Thomas ignored the balance test as unimportant and claimed the use of the word “reasonable” in the Babcock and Wilcox ruling determined the rights of access, or not. He declared “So long as nonemployee union organizers have reasonable access to employees outside an employer's property, the requisite accommodation has taken place.” That should be the real Babcock test.

The three dissenters objected to Thomas ignoring the phrase “Accommodation between the two [employer and employees] must be obtained with as little destruction of one as is consistent with the maintenance of the other” and seizing on the word “reasonable” instead. They also objected to his abbreviating an important phrase from the end of the sentence he used as Babcock’s teaching. Thomas left off “the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.”

In Lechmere, Justice Thomas went on to explain physical isolation such as an Alaska mining camp would be necessary before it could be “reasonable” to allow union organizers to engage in “trespassory” access. Justice Thomas made “The union's burden of establishing such isolation is, as we have explained, ‘a heavy one,’ and one not satisfied by mere conjecture or the expression of doubts concerning the effectiveness of nontrespassory means of communication.” Thomas suggested advertising, mailings, phone calls, home visits and as in this case with the grassy strip, signs, would all be effective, he claimed, although without mention of example experience with organizing a union. If nothing else the Thomas opinion makes a petty excuse to obstruct and delay union organizing that bluntly contradicts America’s national labor law that recall includes a written policy explicitly encouraging labor unions.

Unless the physical isolation of the Cedar Point and Fowler operation resembles an Alaska mining camp, then the present Supreme Court should have no difficulty removing the organizers from Cedar Point property and ending the case. Instead, the Supreme Court agreed to a petition for a writ of certiorari by accepting for review that access regulations can be, and should be, converted to taking real property.

I count 31 amicus briefs filed by identified corporate interests like the Chamber of Commerce of the United States, and policy institutes and associations like the Cato Institute funded by unidentified corporate interests. The 31 total includes amicus briefs from labor unions like United Food and Commercial Workers, and the AFL-CIO, along with non-profits and government agencies generally concerned about challenges to essential access to carry out legal mandates.

All the briefs take a super serious tone. The objectors need to be serious so as not to offend pretentious justices who demand to be taken seriously. In contrast the argument of petitioners, and the amicus briefs, that two designated people coming onto farm property at limited and designated times during a strawberry harvest solely as union organizers should be an unconstitutional taking of real property without compensation, is idiotic and preposterous on its face. As an outside objector I do not have to observe a false decorum.

Petitioners case distorts the English language and makes a mockery of the law and the Constitution. At least four justices voted to accept the case, which vote opens them to charges they would rather make law as legislators than settle a case between two parties as they are supposed to do. The Justices have debased and diminished themselves, the courts and the constitution by accepting this case, a Scam and a Sham.