Fighting the Conservative Push to Put Private Property Rights Over Public Health and Safety

Conservative activists are seeking to capitalize on the U.S. Supreme Court’s anti-union leanings to attack public safety and health.

By Jonathan Miller — Legal Director at Public Rights Project

Conservative activists are seeking to capitalize on the U.S. Supreme Court’s anti-union leanings to attack public safety and health laws in one of this year’s most important cases. In Cedar Point Nursery v. Hassid, the Pacific Legal Foundation has challenged a California labor regulation allowing labor organizers to access growers’ property to talk with agricultural workers onsite about the benefits of organizing and union formation.

The growers argue that the regulation works as an unconstitutional taking — that the government has taken control of their private property — under the Fifth Amendment to the U.S. Constitution and should be invalidated.

We recently authored a brief joined by 18 of our local government partners fighting back against this challenge, saying that this regulation is not a taking, and urging the Supreme Court to reject the extreme use of private property rights.

This case is critically important for many reasons:

1. It seeks to undo well-established law and insert a radical new theory of property rights.
2. It threatens the ability of unions to organize in the agricultural sector.
3. It could limit local governments’ ability to conduct routine health and safety inspections — covering everything from buildings sprinkler systems to food preparation to environmental harms.

At its core, this case presents the question of whether property rights are more important than the rights and safety of people. We stand with people.

What this case is about?

Cedar Point Nursery is about a California labor regulation from the 1970s — one that grew out of Cesar Chavez’s activism — which the California Agricultural Labor Relations Board (ALRB) oversees. The regulation allows labor organizers to access worker-only spaces on agricultural growers’ property to support worker organizing and potential union formation. The regulation permits the organizers to go onto the property for up to 3 hours per day (limited to before and after shifts as well as during meal breaks) for up to four 30-day periods per year.

But in practice, organizers usually spend much less time on the properties and only visit a small group of properties every year. According to the brief filed by the California Attorney General, over the past six fiscal years, the California ALRB has received on average only 18 notices from labor organizers as compared to 16,000 agricultural employers in the state.

Two agricultural growers — Cedar Point Nursery (located in Dorris, California near the Oregon border) and Fowler Packing Company (operating out of Fresno) — sued to challenge the regulation. It has been on the books for 45 years and was previously upheld in 1976 by the California Supreme Court. The growers argue that the regulation deprives them of their property without just compensation. They say the regulation is similar to when the government wants to widen the highway and needs to purchase your home because it is in the path of the new lanes.

They argue the nearly automatic access to their land is an easement (a right of passage or entry) given to the labor organizers. Usually, these types of cases are analyzed under a balancing test referred to as the Penn Central factors, which allows courts to measure the extent of the intrusion onto private property against the public benefit from the rule or law. Here, the growers are pushing for a much more extreme outcome: they want the Supreme Court to say that this regulation is a taking no matter what that balance might be.

What is this case REALLY about?

Conservatives have been attacking unions through the courts for a while and finding a receptive audience before the Supreme Court. Typically, they’ve sought to undercut union power by fighting their rules on First Amendment grounds. Now they seek to weaken them through private property rights. They want to cut off the access of the labor organizers to the agricultural workers by arguing that the rule is no longer necessary. They contend that with 21st Century technology and the fact that the laborers rarely live on the farms anymore, access to private property is not the only means to connect with the workers. They are trying to use this case to weaken the influence of unions overall, particularly in a sector where workers are vulnerable.

This case is also about government health and safety inspections. The Pacific Legal Foundation and its super-conservative amici, including the U.S. Chamber of Commerce, the Trump administration’s Department of Justice, and several states led by Republican AGs, all say that government inspections are not implicated. But their arguments make little sense. Many local ordinances allow inspectors to go onto private property for specific purposes (sometimes even to talk with workers or others onsite) and during limited hours, just as the labor access regulation does. It’s hard to see how a clear victory in the growers’ favor would not imperil many of these run-of-the-mill local ordinances.

These inspections are needed for very important reasons. They cover:

• building codes
• food processing and storage
• environmental hazards
• workplace conditions

… across industries ranging from massage parlors to bicycle rental companies.

Every city and county has dozens of them. These are the types of things that government does in the background every day. Thousands of inspectors go into businesses and buildings looking for potential hazards, such as pests, and protecting the public from illness and danger. Imagine if no one ever inspected your local restaurant or checked on your apartment building. We all benefit from these health and safety check-ups even when no violations are found.

At PRP, we chose to fight back in this case. Allowing local governments to perform these routine inspections is critical. Not only do these inspections help ensure businesses play by the rules and keep their workers safe, they also can help detect more extreme problems like human trafficking and dangerous, life-threatening building conditions. By calling into question the ability of government inspectors to go onto private property, this case could put consumers, tenants, and workers at risk.

So, what happens now? The case will be argued before the Supreme Court on March 22 and a decision is expected by the end of June. Join us in urging that the Supreme Court uphold this important regulation to protect all of us by sharing our Twitter thread about the case: https://bit.ly/3dggphb.

And, if you want to learn more about how you can be involved in future briefs protecting workers’ rights, contact us at media@publicrightsproject.org.