U.S. Supreme Court Strikes Down California Union Access Regulation

By Jason Patterson and Michael Warner - Franczek P.C.

June 30, 2021

In a 6-3 decision, the U.S. Supreme Court, in a decision issued on June 23, 2021 struck down a California state law requiring agricultural employers to grant union organizers access to their property. The Court determined the regulation was an unconstitutional taking under the Fifth and Fourteenth Amendments. While the decision should not disturb established employer property rights under the NLRA, it may deter the NLRB from departing from expanding existing Board precedent to allow for greater union access and the decision may open the door for other regulatory challenges to government-mandated access to employer property.

The Regulation and Decision  

The California regulation granted union organizers physical access to agricultural employer premises for 3 hours per day for up to 120 days per year. Under the regulation, organizers were granted access to meet with employees and solicit their support.  The Court found the regulation deprived employers of their right to exclude individuals from its property, and was a per se physical taking without compensation under the Fifth and Fourteenth Amendments of the U.S. Constitution.

Implications for Union Organizing

The Court’s ruling is specific to the California regulation and will unlikely have a significant impact on employer’s property rights under the NLRA. Generally, under the NLRA, employers can exclude non-employee union organizers from their property unless a union can establish that either: 1) there are no other means to communicate with the employer’s employees (e.g., employees live onsite); or 2) the employer generally grants access to non-employees to its property but is discriminating against union organizers. This decision does not alter these principles. However, we expect precedent related to union access to employer property to be visited and potentially expanded by what is anticipated to be an aggressive Biden NLRB.   Last week’s decision places substantial constitutional limits on the NLRB’s ability to require access to private property for union activities without compensation.

Challenges to other Regulatory Activity

While the majority explained that this decision does not change the law regarding government regulatory or enforcement access to business property, the dissent suggests the majority’s rationale fails to distinguish between the California regulation and other government inspections. This may open the door for challenges to other regulations permitting government access (e.g., safety inspections), or regulations compelling third-party access (e.g. labor peace agreement ordinances). We will continue to monitor all developments.