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