George F. Will

WASHINGTON — At 5 a.m. on an October day in 2015, union organizers barking through bullhorns swarmed onto the grounds of Cedar Point Nursery near California’s border with Oregon. The organizers surged through the sheds where some of the nursery’s 100 full-time workers and more than 400 seasonal workers were preparing strawberry plants.

The organizers’ behavior was legal under California law. On Monday, the US Supreme Court will hear oral arguments concerning whether it is legal under the Constitution. The court will also hear some of its own words deployed in defense of the property rights of Cedar Point and Fowler Packing Company, a Fresno-area packer of grapes and citrus.

The Fifth Amendment says private property shall not “be taken for public use, without just compensation.” Cedar Point and Fowler, represented by the Pacific Legal Foundation, argue court precedents establish that the California regulation that compels them to allow union organizers on their property for 120 days a year constitutes a taking of a real property interest, for which they must be compensated. This case illustrates how governments nibble away at property rights, which provide individuals a zone of sovereignty.

In 1975, immediately after its creation, California’s Agricultural Labor Relations Board promulgated an “emergency” access regulation that three months later became permanent. It entitles unions to trigger, four times a year, a 30-day period during which they can “access” an agriculture business’s property for up to three hours a day “for the purpose of meeting and talking with employees and soliciting their support.” Employers are forbidden to interfere with this, and the Board construes “observing” the organizers as “interference.”

California’s government has granted the union an easement, which is a right to cross or otherwise use another person’s land for a specific purpose. A divided US Court of Appeals for the 9th Circuit affirmed a district court’s ruling that an easement is not a “classic taking in which government directly appropriates private property.” This is true but not decisive.

Cedar Point and Fowler argue that the Supreme Court “has repeatedly recognized that the taking of an easement is a permanent physical invasion of property that triggers a categorical duty of compensation.” The court has held that the right to exclude persons from one’s property is “universally held to be a fundamental element of the property right.” When government denies the right to exclude, for the benefit of a third party, compensation is required, even if the easement is not around-the-clock throughout the year.

The 9th Circuit mistakenly equated the easement as a mere regulatory restriction on Cedar Point’s and Fowler’s use of their property. Actually, the easement granted by government to union organizers is the taking of property for up to 360 hours a year for the government’s purpose of encouraging unionization. This constitutes what the Supreme Court has called, in another takings case, the “imposition of ... a servitude.”

The union access guaranteed by the National Labor Relations Board, unlike that mandated by California’s Agricultural Labor Relations Board, is limited to “when the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels.” Today, agricultural workers do not generally live on their employers’ property and are accessible to union organizers where they live. Furthermore, union advocacy can reach them on their smart phones and by other means of communication, including the union’s radio network. Cedar Point and Fowler employees resist unionization not because they are inaccessible to union advocacy but because Cedar Point pays for housing its seasonal workers in nearby hotels, and provides complementary meals on the nursery’s property, and Fowler provides complementary meals and a no-charge medical clinic.

Nationwide, a majority of union members are government employees: Only 6.3% of the private-sector workforce is unionized. Organized labor thrives through the 34.8% unionization rate of public-sector workers, who strive to elect their employers.

Ratification of the Bill of Rights, including the takings clause, was effective Dec. 15, 1791. Three months later, in a newspaper article on property, James Madison quoted, as the Founders were wont to do, the English jurist William Blackstone, who said the property right means the “dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”

The words “servitude” and “dominion” are apposite in takings clause jurisprudence. What the Supreme Court will hear Monday are arguments about property rights that the Founders considered foundational for political liberty.

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