386 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com during the calendar year. In a 1976 decision the California Supreme Court rejected a grower’s argument that this state-authorized encroachment on private property violated the Takings Clause of the Fifth Amendment.6 A couple of growers then mounted a new challenge to the access regulation, after they rebuffed efforts of union organizers to invade their land. The dispute resulted in unfair labor practice charges being filed with the ALRB. The growers then sued ALRB members in federal court for an injunction against the enforcement of the access regulation, because the regulation appropriates the growers’ property (by giving union organizers an easement) without compensation, in violation of the Fifth Amendment. The federal district court rejected this argument in a ruling that was affirmed by a divided Ninth Circuit panel.7 The Ninth Circuit denied a rehearing en banc, but eight Ninth Circuit judges dissented from the denial.8 The U.S. Supreme Court then took review of the case, to consider whether “the uncompensated appropriation of an easement that is limited in time constitutes a per se physical taking under the Fifth Amendment.” The Supreme Court, in 2021, issued a 6-3 opinion in Cedar Point Nursery v. Hassid,9 which reversed the Ninth Circuit. Hassid held that the California access regulation violated the Takings Clause of the Fifth Amendment of the U.S. Constitution, which applies to the states via the Fourteenth Amendment, and which prohibits the government from taking private property for public use “without just compensation.” Physical takings must be compensated, and the California access regulation amounted to a physical taking by appropriating the owners’ right to exclude third parties from their land—”one of the most treasured rights” of property ownership.10 By granting access to thirdparty union organizers, even for a limited time, the California access regulation confers a right to physically invade the growers’ property and thus constitutes an unconstitutional physical taking without compensation. 18.2 Anti-Injunction Laws re Mass Picketing In America generally, employers can obtain injunctions against union-generated mass picketing that disrupts with business operations. In California it’s different. California favors union speech. The 1975 Moscone Act limits the equity jurisdiction of courts with respect to labor disputes by declaring that conduct relating to a “labor dispute,” such as peaceful picketing, “shall be legal, and no court … shall have jurisdiction to issue any restraining order or preliminary or permanent injunction which, in specific or general terms, prohibits any person or persons, whether singly or in concert, from [engaging in the specified conduct].”11 Further favoring unions is California Labor Code section 1138.1, which creates virtually insurmountable obstacles to any employer trying to enjoin union interference with business operations during a labor dispute. Section 1138.1 requires that employers seeking a temporary restraining order as to a labor dispute must produce live witnesses at a hearing (not just written declarations under oath), must prove that law enforcement is unable or unwilling to protect the employer’s property, and must furnish “clear proof” (instead of the traditional “preponderance of the evidence”) that the defendant union actually participated in or authorized unlawful acts.12 These pro-union statutes attracted serious constitutional scrutiny in 2010 and 2011, when two Court of Appeal decisions struck them down as unconstitutional because their pro-union favoritism discriminates on the basis of the content of speech. In one case, a trial court relied on these statutes to deny an injunction against union agents trespassing on store premises to distribute flyers urging shoppers to boycott the store for failing to employ union workers. The Court of Appeal held that the statutes unconstitutionally favor speech related to a labor dispute over speech related to other issues: California could not constitutionally keep courts from exercising their equity jurisdiction to enjoin trespassing union agents just as they enjoin other trespassers.13 In the other case, involving the same union and the same store employer, but in a different judicial district, the union used an “informational picket line” to tell shoppers that store workers were not unionized. Again, the
RkJQdWJsaXNoZXIy OTkwMTQ4