Takings

Ninth Circuit Refuses to Reconsider Ruling that Mandating Union Organizer Access to Employer Property is not a Taking—but Eight Judges Dissent

The case is an important one that could be headed to the Supreme Court

|The Volokh Conspiracy |

 

Earlier today, the US Court of Appeals for the Ninth Circuit refused to grant en banc reconsideration of a three judge panel decision in Cedar Point Nursery v. Shiromaan important takings case where the panel had ruled there was no taking of private property requiring "just compensation" under the Fifth Amendment in a situation where the government had mandated that agricultural employers grant union organizers regular access to their property. The panel ruled that there was no taking largely because state regulations did not require owners to give union organizers the right to "unpredictably traverse their property 24 hours a day, 365 days a year." Instead, they are only allowed to access the property at specified times, amounting to "360 hours a year out of a total 8,760 hours (and only 120 of those hours would be during the workday)." Thus, there is no "permanent physical occupation" of property, of the sort required by Supreme Court precedent for this to be considered a "per se" (automatic) taking, as opposed to one subject to the complex Penn Central balancing test, that usually comes out in favor of the government.

Today, a majority of the full Ninth Circuit ruled that the case would not be reconsidered en banc, by a much larger panel. However, eight judges joined a dissenting opinion authored by Judge Sandra Ikuta. Here is a summary of their position:

Once again, the Ninth Circuit endorses the taking of property without just compensation. See Horne v. U.S. Dep't of Agric., 750 F.3d 1128 (9th Cir. 2014), rev'd sub nom. Horne v. Dep't of Agric., 135 S. Ct. 2419 (2015). California property law and Supreme Court precedent make clear that an easement is private property protected by the Takings Clause. See, e.g., L.A. Terminal Land Co. v. Muir, 136 Cal. 36, 48 (1902); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831 (1987). In opposition to this precedent, the majority concludes there is no taking because the state's appropriation of an easement is not a "permanent physical occupation." Cedar Point Nursery v. Shiroma, 923 F.3d 524, 531–34 (9th Cir. 2019). This decision not only contradicts Supreme Court precedent but also causes a circuit split. See Hendler v. United States, 952 F.2d 136, 1377–78 (Fed. Cir. 1991). We should have taken this case en banc so that the Supreme Court will not have to correct us again….

To the extent there was any doubt as to whether the appropriation of an easement constitutes a taking, it was dispelled by Nollan [v. California Coastal Commission].There, the Court stated that if California were to require landowners to "make an easement across their beachfront available to the public," there is "no doubt there would . . . be[] a taking." Nollan, 483 U.S. at 831. According to the Court, "[t]o say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather . . . 'a mere restriction on its use,' is to use words in a manner that deprives them of all their ordinary meaning." Id. (citation omitted).

The Federal Circuit's decision in Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991), is in accord with these precedents. There, the Federal Circuit held that the federal government had acquired an uncompensated easement when "Government vehicles and equipment entered upon plaintiffs' land from time to time, without permission, for purposes of installing and servicing . . . various [groundwater] wells." Id. at 1377. Entry onto private property, "even though temporally intermittent," effected a taking because "the concept of permanent physical occupation does not require that in every instance the occupation be exclusive, or continuous and uninterrupted." Id.

The issue here comes down to whether a "permanent physical occupation" occurs only when it is literally continuous, or when the right to occupy continues indefinitely, but does not apply to all hours of the day, all the time. The Supreme Court precedent on this subject—like on a number of other takings issues—is far from a model of clarity, and this is one of the questions on which it is ambiguous. That said, I largely agree with the dissenting Ninth Circuit judges, and with the 1991 Federal Circuit decision they cite above. A permanent right to an easement to enter or occupy an owner's land is a severe infringement on property rights even if applies only to certain hours of the day, and even if the intrusion is not continuous. Moreover, the right to exclude unwanted entrants is a central element of property rights in the Anglo-American legal tradition. So it is hard to argue that a major restriction on it is not a taking of property rights.

It's also worth noting that this case has implications that go far beyond the union organizing context. If the Ninth Circuit majority's position prevails, it could allow the government to impose a wide range of access requirements on owners without paying compensation.

As the dissenting judges point out, this Ninth Circuit ruling has a created a split with the Federal Circuit. This—combined with the intrinsic importance of the issue—makes it more likely that the Supreme Court will take the case, though of course it is far from certain they will do so.

UPDATE: I should add that Judge Ikuta's dissenting opinion  seems calculated to attracted the Supreme Court's attention, and at least some of the justices will probably notice. That doesn't necessarily mean they will take the case. But it does make it likely that the Court will at least give serious consideration to doing so.

UPDATE #2: I should have noted that the plaintiffs in this case are represented by the Pacific Legal Foundation, with which my wife, Alison Somin, has accepted a position at which she will begin working next week. Alison is not involved in this case. But I should note the potential conflict of interest, nonetheless.

 

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  1. “Judge Sandra Ikuta”

    Another white, male, Southern clinger, no doubt.

    1. Wiki says she was born and raised in LA. Ikuta came with the husband and she started out as a Segal. Segal, if I had to guess, would usually be Jewish.

      So I’m going for Jewish, female, Western clinger. They’re the worst kind.

  2. How about we the people wander by and occupy their homes for only 360 hours of the year, with only 120 of those during the workday?

    Not a taking! What a joke the 9th is.

    1. I propose the following corollary: staying in a hotel for less than 360 hours a year with less than 120 during a workdays while not paying for access is not theft or squatting either!
      #downwithbigbusiness
      #orangemanbad

    2. I was thinking the same thing — or only stealing their automobiles for 360 hours a year, I’m sure that wouldn’t constitute “theft.”

  3. The government comes onto my properties regularly, to check on gas usage, electric usage, water usage, etc.. It does this on an ongoing and permanent basis. The actual effect on me and my family is quite limited but real (we get a shock when we see a stranger walking past our window, and this is alarming; we can’t sunbathe nude on the days/hours when these people come by, and so on.). Do we (and the hundreds of millions of Americas like me) have a Takings claim? It would obviously be for very little money. But does the same principle apply as in the OP case?

    If not, why not? (I would think my case is even stronger; govt workers are coming onto my property; unlike the above case, where private parties are coming onto the plaintiffs’ property.)

    1. You’re (Most places, anyway.) not required to use government utilities. Unlike the relevant labor laws, which employers can’t opt out of.

      My thought was, by this reasoning, how are public accommodations laws not takings?

      1. Employing people is not mandatory either.

      2. Brett,
        Excellent example. You (the govt) are forcing my restaurant to serve Jews, disabled, gays, Catholics, atheists, etc.. All seem like takings. (Esp re disabled, where I have to pay real money to make my restaurant/bowling alley/law firm accessible.).

        Either we live in a world where we occasionally have to allow others onto our property or we live in a world where no one can ever come onto our property without permission. (With, perhaps, some limited exception such as fighting a fire that can spread to other people’s property.) I think that second scenario is terrible, and we (society writ large) are much better off with telling property owners, “Part of the social covenant is that people will come onto your property. If you are a landowner, cops will come if they’re chasing a dangerous criminal. If you are a business, then health inspectors will come on. Or union organizers are allowed to come on. And if you do not accept that, do not own property here and do not open a business here.” But I get the libertarian perspective of wanting to be free of govt-imposed conditions…this is not an issue where I think the other side is arguing in bad faith.

        1. I definitely think there is some bad faith. This is an attempt to make federal collective bargaining mandates cost prohibitive.

          1. Or, from the opposing perspective, the mandates are already “cost prohibitive”, and this is an attempt by the government to make collective bargaining cheaper at the expense of the employer. In principle no different than if a business was ordered to allow the union reps to use the photocopier without charge, or take over an office for their own use.

            It’s not like the employees spend all their time on the employers’ property; The union reps could stand around the border of the property waiting to catch the employees as they enter or leave. They just don’t want to, they find it inconvenient.

            1. No Brett. The government has the power to make your business more expensive (e.g., by taxing it). Doing so by itself isn’t a taking.

              1. That’s an interesting perspective: The power to tax is the power to impose costs, taking things away imposes costs, therefore the power to tax is the power to engage in takings without compensation.

                Nah, I don’t think it works, money is fungible, in a way property isn’t.

                1. The government didn’t “take” anything. You are assuming your conclusion, which is not viable legal reasoning.

                  1. The government absolutely took something, the legal question is whether it was a “taking” for constitutional purposes.

            2. It’s interesting that you mentioned the case of the cops chasing a criminal. This blog covered a case where a criminal holed up in some innocent third party’s house, and had a shootout with cops, who messed the house up. Now the owner says this is a taking where he is entitled to compensation.

              Now, applying your logic, what if the government, as part of the “social covenant,” wants to build a road on someone’s property for the public to use? Title remains in the property owner, and the government doesn’t take *all* the property, just enough to make a road which the public can drive on.

              1. (I was trying to reply to santamonica.)

              2. I don’t take the position that there can never be a taking resulting from collective bargaining mandates. If the union organizers come in and trash the property, and are judgment proof, it wouldn’t bother me at all to stick the government with the cost because they let them in. That’s equivalent to the shootout with the cops example.

                The point is the collective bargaining mandate itself is a business regulation. You want to do business, you have to allow a lot of people on your property, like health and safety inspectors, tax collectors, process servers, etc. Saying that union organizers have to have access to your employees is simply one more regulation, and because by itself it does not deprive the owner of any property, it’s not a taking. The fact that it increases the costs of the owner’s business is irrelevant. Many regulations do that.

                1. “You want to do business, you have to allow a lot of people on your property, like health and safety inspectors, tax collectors, process servers, etc. Saying that union organizers have to have access to your employees is simply one more regulation”

                  You don’t notice any difference between regulations aimed at the welfare of the general population, and regulations aimed at putting a thumb on the scale when particular people negotiate, which pick one side to advantage, and another to disadvantage?

                  1. You don’t notice any difference between regulations aimed at the welfare of the general population, and regulations aimed at putting a thumb on the scale

                    Or maybe taking a thumb off the scale.

                  2. Allowing access like this isn’t a thumb on the scale, it’s more or less a necessity.
                    There is not some power imbalance favoring union organizers by letting them go to the place they want to unionize.

                    Your hostility towards unions is letting you rationalize whatever ridiculous things you can as evening the playing field.

                    1. It’s scarcely necessary, all sorts of people manage to contact folks they want to without having to invade workplaces. As I point out, pro-life protesters certainly want to talk to workers at abortion clinics, but they’re required to make do with camping out on the sidewalk.

                      Why should union organizers be given an advantage over them?

                      Because some politicians want to encourage union organizing. So they gave union organizers a legal privilege nobody else gets.

                    2. Contacting people on an individual level to get a union organized? You’re just being silly at this point.

                      Union organizers are not the same as protestors.

                    3. And Jehovah’s witnesses aren’t the same as vacuum cleaner salesmen. The question isn’t whether they’re identically the same, the question is whether they’re the same for legal purposes.

                      Union organizers are people who want to talk to your workers. They’re not already in some kind of relationship with you or the workers, they just want to be.

                      There are a lot of people out there who’d like to be in a relationship with your workers, and they don’t all get a pass to enter your property whether or not you want them to.

                      Why, legally, should union organizers be different?

                    4. They are functionally different, socially different, have a different relationship to the work place, and have different laws and Constitutional provisions that apply to them.

                      They’re pretty different for legal purposes.

                  3. But that’s just your raw hatred of unions, Brett.

                    The government is entitled to decide that you are full of it and collective bargaining is an important human right.

                    1. Why limit this to just one union? We don’t limit religion this way.
                      So why can’t an organization like the National Right to Work demand equal access to the workplace for a union-decertification campaign?

                      Oh, I can see this getting quite ugly quite fast — but there is nothing about civility in “content neutrality” and much as atheism is protected as a religion, non-representation has to be protected as a form of collective bargaining.

                    2. Yes, Ed, everything reminds you of civil war.

                      Organized labor isn’t a religion.

            3. this is an attempt by the government to make collective bargaining cheaper at the expense of the employer.

              An attempt that has been going on since the New Deal, I guess?

          2. Not a federal mandate. California reg.

      3. Assume public accommodations laws are a taking. Assume you are a bar owner who is required to serve a customer you don’t wish to serve. What are your damages? The profit you made on the drink you wouldn’t have sold otherwise?

        By that rationale, any regulation at all is a taking. Is that where you’re ultimately headed?

    2. Access to the meter is a condition of contract for the utility services. At some level, you consented to that intrusion on your property. Almost certainly in writing. That’s a pretty big difference.

      Second, the degree of intrusion is limited and, to some degree, controllable by you. You could, for example, negotiate with the utility to place an external repeater of the meter on some less-disruptive part of the property so your nude sunbathing could be uninterrupted. (Whether that’s practical given the layout of house and property is a separate question.)

      I’ll also disagree with your last claim (that your case is stronger), though my objection may depend on jurisdiction. In my area (and I thought, most of the US), the meter readers are also private parties, not government workers. Utilities may be heavily regulated but they remain independent companies.

      1. Forget repeater, you can move the meter to the property line.
        Lots of rich people have done this for this reason, and the only problem is that YOU are responsible for the wiring/piping beyond the meter.

    3. You don’t have to do those things. It’s just part of the contract for gas, water, or electric usage.

      If you don’t want those, things, then renegotiate the contract. Or self-source them.

      1. And if you don’t want to comply with the Wagner Act, nobody is requiring you to operate a business either.

        1. This is not a Wagner Act case. Its a state board regulation.

          1. Same difference. You think these people are going to stop at California?

        2. I’ve never really liked these, “If you don’t want to comply, you can always live as a hermit in a cave someplace.” arguments, where you’re told that it isn’t really an imposition, because you could give up some basic life activity if you don’t want to comply, like making a living.

          1. Well it was a response to “if you don’t want to, you don’t have to have electricity and have those pesky utility inspectors over”.

            1. Who said anything about not having electricity? You don’t HAVE to get it from a specific utility company, you could always have solar with storage installed, and the meter readers would have no right to enter your property.

    4. In other news, do you hire a lawn service? A baby sitter? A house cleaning service?

      Congrads. You’ve have now consented to have “union organizers” enter your house whenever they want, will full bullhorns blaring, how you are an evil overlord, and the workers you have should unionize and demand better rights from you and the people that you’ve hired.

      1. I see your confusion. You are confused about how a business runs. No, if I have hired a law service or baby sitter, I would think that union organizers have the right to go to the main place of operation of THAT BUSINESS. Not the customer’s residences.

        Does that help your understand this situation better? It’s why the case mentioned by the OP does not talk about the right of union organizers to go onto the property of you or me, or everyone else who bought strawberries–in order to advocate for the pickers’ right to unionize. And it’s why workers at Vons or Costco have the right to have union organizers come to the workplace, but those same organizer do not (again) have the right to come to your home or my home, just because we are buying those troublesome strawberries.
        I think the distinction is pretty clear. But if it’s not, re-post, and I’ll try to come up with more-helpful, and more helpful, examples.

        1. You would think so, but it doesn’t look like that.

          It would be relatively easy for the farmers to create a 3rd party corporation (incorporated, with main offices in Delaware) that hires the workers. Then the farmers hire the company (like you would hire a lawn service) to do the crop picking (or lawn mowing).

          Under your scenario, the union would only have the right to intrude on the office in Delaware. That’s clearly incorrect.

      2. Except that if you’re a union organizer, you don’t want to waste your time at my house where at most you’ll find one or two lawn employees for an hour every week. You’re going to look for far more target-rich environments than that. I don’t use either babysitters or cleaning services but I wouldn’t think there would be enough of them together at my house at any given time to make a visit from the union organizer worth his while either.

        Also, my house is not a good analogy anyway since the rules for businesses and the rules for private residences are different.

        1. Except that it is YOUR house and depending on who you are, it well may be worth it for the union to have a dozen organizers there in an attempt to intimidate you.

        2. But, as Ed said, I do want to waste my time at your house. I can’t think of a better way to “convince” people to unionize that to make a loud, obnoxious racket that threatens to drive away clients.

          And I wasn’t aware tresspassing rules were different between private businesses not open to the public and private residences…

          1. If the law allows union organizers to enter a business, then by definition they are not trespassing. The rules for private residences are different than the rules for businesses in that businesses are regulated in ways that homes are not.

  4. SM811, Haven’t you agreed when you signed up for utilities that they would be allowed to access? Can you order something from Amazon and then complain that the mailman violated your privacy when he dropped it off at the door? Could you pay to have someone move the various meters to the edge of the property? All just thoughts that suggest that it is not close to a taking when someone comes onto your property to do something you asked them to do. The government has tipped the scales so far in the direction of unions when it comes to business that it is amazing that the level of unionization is as low as it is.

    1. The government has tipped the scales so far in the direction of unions when it comes to business that it is amazing that the level of unionization is as low as it is.

      You know nothing about federal labor law.

      1. brat. You know nothing about what I know.

    2. H,
      That’s absolutely a fair point. My examples are not great. But I suspect that if I thought about it, I could come up with better examples, where you’d agree that permitting X to come onto my property still should not give you a valid Takings claim. Perhaps the police coming onto my property, to ask me and others on my block if I’ve seen a missing child? Or my next-door neighbor coming onto my property to ask the same question? It’s been a while since I’ve bought any houses. But I know for certain that there was never any clause that gave explicit permission for those two examples. (I strongly suspect that you and others are correct…that permission is explicitly granted in any contract for utilities.)

      1. It isn’t permitting people to come onto your property that’s the taking. The government isn’t permitting squat here.

        It’s requiring YOU to permit them to come on your property. “Ownership” is a bundle of associated rights in regard to the thing owned, and a traditional part of the bundle, in the case of land or buildings, is control over entry. (Not exit, mind you, only entry.)

        What the government is asserted to have taken, is that piece of the bundle: Your right, with certain historically understood exceptions, to bar entry to your property.

        Ordinarily the government can only enter your property without your consent under very specific circumstances; Hot pursuit, or executing a warrant. How is it, then, that the government can grant some private actor greater rights than IT has?

        1. So, you ARE saying that you can legally block the police from coming to your front door and knocking on it. I just don’t believe that is an accurate understanding of the laws in any state. But if people have a link to the contrary, I’ll definitely keep an open mind. It would astonish me, if actually true.

          1. If there were an edit button, I would have added to the police coming to your door “…in a non-emergency situation…” .

            1. Nobody said the union organizers couldn’t come to the front door of the plant and knock on it. What they want to do is enter.

              However, as it happens… Yes, you can legally block the police from coming to your front door and knocking on it without a warrant, if you go about it in the right way.

  5. By this logic just about every law you don’t like can become a taking. To put it mildly, that is not helping the credibility of the cause.

    1. You’ve identified the cause.

      Don’t like the health department inspecting your restaurant? Hey, it’s a taking.

  6. Once the union re-brands itself as a church, they’ll be in great shape to make a religious exercise argument to SCOTUS.

    1. Then we could run the NLRB out of town for being an establishment of religion.

      1. Because there have been so many successful establishment clause cases lately?

    2. bratschewurst : “Once the union re-brands itself as a church, they’ll be in great shape….”

      I’m trying to figure some way to add a gun angle too…….

      1. Here’s the beginning of a firearms angle. Many centuries back, when Jesuit missionaries arrives in China, and came to understand the customs and traditions there, they wrote to the Pope, and asked for permission that in the celebration of the mass, the ringing of bells might be replaced with the setting off of firecrackers. As they said, “the Chinese love fireworks!” But the Pope said no, and it was perhaps for that reason that Christianity didn’t take hold.
        But, like you said, “figure some way to add a gun angle” as a necessary part of religious practice.

    3. “Once the union re-brands itself as a church, they’ll be in great shape to make a religious exercise argument…”

      Think about this for a minute — a majority of the employees could dictate both that an employer must provide space for religious worship *and* that it must be the denomination selected by the majority of the workers, to the exclusion of all others?

      Depending on where you are in the country, this will be either a Protestant or Catholic workplace, where the minister or priest is given access to the employer’s property and the employer’s employees — and the employees forced to subsidize the minister or priest, regardless of their personal faith.

      You’d like to see this?!?

  7. A 9th Circuit Court decision that splits from other circuits? Who could’ve thought? Paez and Fletcher, both late term Clinton Appointees…surprise!

    1. The eight dissenters are two Bush apointees and six Trumpists…surprise!

      1. The 9th circuit has a long history of decisions that break from the rest of the country as a whole. It went astray from the rest of judicial jurisprudence in the rest of the court system.

        The recent judges are bringing it back into the common system.

        1. Yeah…this isn’t true anymore, if it ever was.

          Talk radio’s statistical bona fides aren’t super great.

  8. As the dissenting judges point out, this Ninth Circuit ruling has a created a split with the Federal Circuit.

    Well, they claim that it created a circuit split. Paez, in his concurrence, disagrees.

    JFTR.

  9. I do not find the dissent convincing. For at least two reasons.

    (1) The economic value of the property is not significantly decreased by the presence of union organizers.

    (2) The union organizers are present on the property a minimal amount of time. And their presence is non-exclusive and does not interfere with operations.

    If compensation must be provided for this so-called “taking” how would that even be measured? How could such claims be administered?

    An overly broad interpretation of the takings clause would threaten to bring back Lochner.

    Doesn’t preventing bakers from working more than 10-hours a day impact the value of a bakery? Does such a regulation now require compensation? Doesn’t the requirement to pay minimum wage or meet safety standards reduce the value of a business? Do such regulations now require compensation?

    How about relaxing zoning regulations so that more housing can be built? That reduces the value of property. A taking?

    Are laws prohibiting price-fixing a taking? Is forbidding a merger a taking? Is breaking up a firm due to excess market power a taking?

    One can see how an overly broad interpretation of the takings clause could be a back door to the return of Lochner-like jurisprudence which will suffocate democracy. I believe that this is the entire point and end objective of this legal movement, which is intended to reinforce the dominance of those at the top of the economic hierarchy.

    We can see that here. It does not seem entirely incidental that those prohibited from effectively communicating with workers are unions who, if they are successful, may require these businesses to share power with workers.

    1. ” It does not seem entirely incidental that those prohibited from effectively communicating with workers”

      NOBODY is being prohibited from effectively communicating with workers here. They’re being denied an extra increment of convenience everybody else who might want to communicate with those workers lacks.

      Let’s say you’re, to be topical, a Jenova’s Witness. You want to effectively communicate your religion to the workers. Does this mean the company has to admit you to their factory floor? It sure would be convenient!

      Or better: The workers work for an abortion clinic. Pro-life protesters really, REALLY want to effectively communicate with those workers, persuade them of the evil of what they’re doing. Why aren’t they allowed to do so within the clinic, rather than being confined to the sidewalk?

      Why should the union reps get BETTER access to the workers than anybody else is entitled to?

      1. Why should the union reps get BETTER access to the workers than anybody else is entitled to?

        Because it’s the law?

        1. Well, yes, and we’re discussing whether the law violates a right, so “because it’s the law” only initiates the conversation, it don’t end it.

        2. Not only because it is the law, but because communications about the fairness of the workplace are of special importance to people working there, whereas communications about religion have nothing to do with work.

      2. Because unions are a unique case. The relationship between labor and management is a unique relationship.

        Jehovah’s witnesses are irrelevant to the running of the business, and the anti-abortion protesters are actively trying to shut the business down, so neither of those analogies work. With union reps, there is a recognition that unions serve an important function in flattening the power differential between workers and management. Which I happen to think is good public policy.

        1. With union reps, there is a recognition that unions serve an important function in flattening the power differential between workers and management. Which I happen to think is good public policy.

          Just curious…Does this reasoning apply to public sector unions? Or just unions in the private sector?

          1. XY, any time someone has power over someone else there is the potential that it will be abused, and humans are really good at abusing power. So the rationale for wanting unions in private sector businesses applies with equal force to having them in the public sector; I see no evidence that government managers are any more benevolent toward their employees than are private managers. So for purposes of getting unions organized, I would apply my rationale to both public and private sectors.

            Because of the special nature of government, it may be that once a union has been organized, that public sector unions may need restrictions that aren’t imposed on private sector unions. For example, I would see a compelling need to get bad cops (and their guns and badges) off the streets that might justify making it easier to fire a bad cop than it is to fire a bad factory worker. But that’s a separate issue.

            By the way, and as an FYI, I did respond to your question on the Mayor Blasio thread about qualifiers. There are now over 250 comments on that thread, so in case you missed it, I wanted you to see that I’m not ignoring you.

        2. Bleah. The employees and the employer have a relationship. The union merely wants a relationship.

          1. Yes and no. Once organized, the employees themselves are the union.

          2. The union gets a relationship of it wins support of the majority of the workers. Which means if you don’t allow access you certainly could be interfering with what the workers want.

            1. You’ve fallen into the trap laid out above. If the employees want the Jehovah’s Witnesses to enter the property, and you stop them, then you are “interfering with what the workers want.”

              1. But religion has nothing to do with the actual operation of the business; unions do.

                1. Unions only have something to do with the actual operation of the business if they collectively bargain with the employer over pay, working conditions etc. If the union demands an extra $4 an hour on the pay rate, that affects the business.

                  If the church or whatever represents the workers’ religious views wants the working day started with a thirty minute service on the factory floor, that affects the business too.

                  1. Well, that, I suppose, depends on how broadly one defines having something to do with the actual operation of the business. In theory, just about anything could affect the operation of the business. But that’s not what I meant.

                    Suppose I own a widget factory, and the church up the street wants to have a thirty minute service on the factory floor. Religion is not a part of making widgets. The amount that I pay my employees, and the conditions under which they work, do have something to do with making widgets, since those all have to do with the actual operations. Further, I can tell my employees and the church that they are free to worship on their own time; I can’t really tell them that pay and working conditions should be dealt with on their own time. So union organization is connected to the business in a way that religion isn’t.

                    1. So, only the Church of Labor Organizing gets this privilege? Other churches which might also have opinions on matters related to employment don’t?

                      I think the suggestion above is right on point: Why union organizers and not representatives of the Right to Work movement? Why are organizing drives relevant to the point of demanding compelled access, and decertification drives not?

                      Because at the time this was enacted, the government had a preference for unionization over non-unionization, and the law is the government’s thumb on the scale trying to shift the outcome in favor of it’s preference.

                    2. Religion is not a part of making widgets.

                      Well it depends on your religion. Protestant-work-ethickers might beg to differ.

                      And many folk would argue that unions are not part of making widgets either – they’re just a cost and aggravation sicced on you by the government – an obstacle to widget production.

                    3. Brett, because you’re ignoring the power differential between labor and management. I can assure you that if there is a decertification effort underway, the company will find a way for right to work folks to get access to the workers.

                      Lee, I was raised Calvinist, so I am well familiar with the argument that *everything* is about religion. I don’t buy it. And whether one sees unions as nobly protecting the rights of workers or as a pain in the butt sicced on management by government, the terms and conditions of employment — the central function of a union — do relate to the production of widgets.

                      As a side note, I really wish those anti-union workers could be sent back in time and made to work under conditions before unions came along. Unions got us the weekend, paid vacations, paid health care benefits, and safe working conditions. I find the monumental ingratitude of workers whose lives are so much better because of unions staggering. It calls to mind Mark Twain’s comment (I’m paraphrasing) that if you feed a dog, the dog won’t turn around and bite you, which is one of the principal differences between dogs and humans.

                    4. I don’t think constitutional rights in any way hinge on “power differentials”.

                      And there certainly ARE employers who would try to obstruct a decertification drive. Governmental employers would frequently do that, as government employee unions are little more than a way to launder tax money to campaign funds.

                    5. “As a side note, I really wish those anti-union workers could be sent back in time and made to work under conditions before unions came along.”

                      Look, unions were needed. Still are. But being to some extent necessary is not the same as being desirable. Vaccinations are necessary, but that doesn’t mean we want to maximize the number of needle jabs people get. Ideally, we want just enough vaccinations to get the job done, and not one more.

                      Unions are the same in that regard. It’s beneficial to workers that the prospect of unionizing be real enough to moderate employer behavior, but ideally it’s somebody else suffering under the burdens that come with actually BEING unionized. We don’t ALL have to be unionized for the threat to be real and effective.

                      Unions get over-promoted because the union movement has formed a symbiotic relationship with the Democratic party, the party promoting unions while in power, in return for campaign donations and workers. And, in government workplaces, the unions are little more than a mechanism to launder tax funds to campaigns.

                    6. Brett, I am far from convinced that this is an unconstitutional taking and I find none of the arguments advanced for that position to be persuasive. And power differential is certainly a legitimate factor when you’re making public policy.

                      And keep in mind that a company’s primary interest is making money. A union’s primary interest is in keeping its workers safe, healthy, and taken care of. That means it’s in the union’s best interest for the company to be strong and healthy (if it goes out of business its members all lose their jobs), whereas it is not in the company’s best interest for a union to be strong and healthy. So as between the two of them, I’m more inclined to trust unions.

                    7. And whether one sees unions as nobly protecting the rights of workers or as a pain in the butt sicced on management by government, the terms and conditions of employment — the central function of a union — do relate to the production of widgets.

                      I think you’re being a bit one eyed about this. Employees are suppliers of labor. A business has lots of suppliers aside from employees. Take say – a grocery store chain. Yes they have employees, but they also have loads of people they buy goods from (in most cases smaller, less “powerful” businesses.) The government might introduce laws requiring grocery chains to bargain with “cartelos” – organisations established to bargain, on behalf of suppliers of items other than labor, with grocery chains on price, delivery, quality terms. Negotiating such matters would be “the central function of a cartelo” and would plainly relate to the business. But the only reason why the cartelo activities would relate to the business is because the government says so.

                      Absent the government imposing the requirement on the business, the activities of the union – or cartelo – would not have any connection with the business. The business and its suppliers of all kinds would deal with such matters themselves.

                      So the relatedness of the union’s activities to the business is just a creature of government fiat.

                      Anything sicced on the business by government is related to the business, because the government is siccing it on the business. Unions are no different from cartelos – except that it is unions, and not cartelos that the government has chosen to sic on businesses.

                    8. A union’s primary interest is in keeping its workers safe, healthy, and taken care of.

                      ☺ May I recommend “On the Waterfront” ? – aside from being an excellent film, it provides the innocent and unimaginative viewer with an elementary primer on the concept of “parasite.”

                      That means it’s in the union’s best interest for the company to be strong and healthy (if it goes out of business its members all lose their jobs), whereas it is not in the company’s best interest for a union to be strong and healthy. So as between the two of them, I’m more inclined to trust unions.

                      You do appreciate that this paragraph works just as well if you substitute “union” with “protection racket” ?

                      And your calculation is incorrect. What matters to the union is the jobs and pay of the union leaders, and the contributions to political clients who keep writing the laws. If one business goes bust, there are plenty more. If no business goes bust, that just shows you’re not sucking hard enough. The best fun though is unionizing those places of work that can’t go bust – like the government.

                    9. Lee, there is much that you say that I agree with. The problem is that every nasty thing you’ve said against unions applies with equal force to management and government as well. The one Calvinist doctrine from my youth to which I still adhere is total depravity. Humans as a group are greedy, self-interested, corrupt, and lots of them really would sell grandmother for $10,000 cash. So pointing to the problems with unions is child’s play.

                      But the solution is not to take unions out of the picture, because at that point management loses a powerful check and balance on its own corruption. At that point we go back to company towns, child labor, dumping massive amounts of pollutants into the environment, unsafe working conditions, and Bob Cratchit trying to support Tiny Tim on ten shillings a week. Unless you’re willing to have government regulation fill in the gap, and something about your comments here leads me to believe you probably wouldn’t.

                      We need strong unions to counter-balance evil management. Not all powerful unions; they, too, then become abusive and over-bearing. Ideally, the balance of power between them should be about equal. But unless you believe the guys running the Fortune 100 corporations have a different human nature than the guys running the Teamsters, then I don’t see how you can think it’s a good idea to remove one of the last vestiges of checks and balances against them.

                      And no, the government doesn’t force a union on anyone. The government makes and enforces rules designed to fairly determine whether the workers want union representation or not.

                    10. I can certainly agree that management belongs in the same category as the unions and the government to the extent that it is imposed by government command.

                      And as I understand it, in some jurisdictions, although the initial appoinment of Board members is the subject of a vote by the owners, corporate law may thereafter prevent the owners getting rid of the Board. Which is a very bad thing, and explains why in some cases, the Board finish up with ludicrous payoffs in an acquisition, even if their own contracts do not entitle them to such pay offs. Because they – thanks to corporate law – may have an effective veto on the deal between new and old owners.

                      But that is an example of the government oppressing the owners by forcing them to put up with people they’d rahter get rid of.

                      But aside from that aspect, I’m not aware of any arrangement whereby management, however beastly, can sic itself on employees (or other suppliers or customers, for that matter.) I recall, in the course of business, coming into contact with several of the top management of a very large corporation, who were amongst the most unpleasant people I’ve ever met, and thinking it amusingly incongruous the company’s brand was very cuddly and family friendly. I never doubted for a moment that (a) working for these sh1ts would be hellish but (b) everyone working for them was doing so voluntarily.

                      Slavery is happily over, and most Americans – even unskilled ones in a small town – have a choice of a dozen possible employers. And that’s if they don’t move to a city where they will find thousands of possible employers.

                      Just for the avoidance of doubt, IMHO, unions are usually bad for businesses, and everyone who has an interest in the success of the business – employees, suppliers, owners, customers, the local community.

                      But if employees wish to band into unions and negotiate collectively with businesses, that’s fine by me. So long as the government is not standing on the business’s neck, and requiring it to deal with the union. If it prefers to deal with its employees direct it should be allowed to do so.

                      If employees don’t want to work for a business that doesn’t recognise unions, that’s their right. They don’t have to work there. And likewise for workers who don’t want to be represented by a union – if their employer insists on doing its pay and conditions through a union, and some employees don’t like that, they don’t have to work there either.

                      The solution to the problem of evil people in your life is free association. Wave goodbye to the folk you want to avoid.

                    11. Lee, you’re ignoring the practicalities that some people don’t have a lot of good choices. Yes, in theory, I can quit my job any time I am dissatisfied, but if my employer is the major employer in the region, or I have family obligations tying me down, or every other employer is just as bad (which was the case before unions), or I’m older than the people other prospective employers prefer to hire, or a whole host of other reasons, I may as a practical matter be stuck where I am. That’s an example of a libertarian solution that is beautiful in theory but often doesn’t match the realities on the ground.

                      The powerful will almost always take whatever advantage of the weak that they can. By advocating that government be kept out of it, you’re essentially arguing unilateral disarmament for the weak, since the government is the only institution likely to speak for them. And that makes no sense to me.

                      So we just disagree. Not only would I require businesses to recognize and deal with unions, in some circumstances I would even favor requiring union representation on corporate boards. That’s been standard in Europe for 50 years. That is the only way I know of that will somewhat mitigate the power differential between labor and management. And I see government as having a role in somewhat keeping in check those who would abuse those who are less powerful than they are.

                    12. 1. I accept that plenty of people start with poor choices, and that as some people get older, their choices can narrow. (Other people’s choices may improve.)
                      2. The primary impacts on the width of your choices in an open economy such as the US is whether you are a productive worker, and whether you choose to take what opportunities you are presented with. Good – or ill – fortune is of course relevant too, but its importance should not be overstated
                      3. Taking or spurning your opportunities includes cases where you make a perfectly sensible choice about your life, but recognize that your job may not be the most important thing in your life. This is obviously the main reason why there is a pay gap, and an underlying job gap, between men and women.
                      4. But – in an open economy, in the private sector – that X is poorly paid and Y is well paid is primarily a function of productivity. If X was really productive, but badly paid, it’s very likely that another employer would be keen to poach him for more money.
                      5. The powerful – like the weak and the middling – prefer to buy what they want as cheaply as possible, and sell what they have as dearly as possible. The powerful are more powerful than the weak, in commercial relations, because they have more to sell.
                      6. Of course, the powerful often seek to bribe and arm-twist politicians to increase their advantages beyond what the market offers. I deplore this, but fail to see the solution in trying to give powerful unions extra arm twisting advantages. There are not just two competing interests in society, there are thousands, millions. Almost everyone is producer and consumer. If we need to rebalance the power differentials, any imbalance between business and worker is small potatoes – and of course there are plenty of cases where the union is big and the business is small. The imbalance between government and citizen is far more serious.
                      7. What you call disarmament, I call laissez-faire. I am just as keen on keeping corporate lobbyists from writing regulations in their favor as I am on keeping unions from the same activity. Indeed “the party of labor” is the servant of special corporate interests – Big Tech, Big Media, Big Banks etc – far more than it is the servant of the workers.
                      8. As for Europe, I think it proves that the slightly more laissez-faire American model works better – including for the Ordinary Joe. US GDP per capita is 40-50% higher than that of the rich European states like Germany, France and the UK, never mind the poor ones. Ditto median incomes. The evidence strongly refutes the notion that more unions and more union rights makes workers better off.
                      9. Adam Smith explained this conundrum long ago. “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest.” Likewise high pay and better working conditions blossom when it is profitable for employers to offer them. It’s got nothing to do with how sweet natured or mean the employers are.

                      Although the economic arguments in favor of the greater efficiency of free markets are unanswerable, that does not mean that their consequences do not bring social disruption. Globalisation and technological change make productive advantage much more scalable – a 99th percentile worker, productivity wise, in 2020 may be a hundred times more productive than a 50th percentile worker. In 1970 the difference might only have been ten times. That has nothing to do with the wickedness of management, but it still has terrifying social implications.

                    13. Lee, let’s take your last comment in which you acknowledge that some of the social implications of a free market are “terrifying”. Is there a tipping point at which even you would say that the social consequences are just too great and government intervention is necessary?

                      If your answer is yes, then we simply disagree on where that line gets drawn, and not on whether it exists. If your answer is no — you don’t care how much human misery the market creates so long as it’s a free market — then again we simply disagree. There is a line in the sand beyond which I’m just not willing to protect the prerogatives of the wealthy and powerful at the cost of human misery. And even if you don’t care about ending human misery, not ending it has frequently led to bloody revolution and far worse consequences than government regulation would have.

                    14. The “prerogatives” of the wealthy are not worth protecting for the sake of the wealthy, but for the sake of their customers and suppliers – us. Rich productive people capture only a fraction of the the value that they provide – stomp them down and the loot you take from them will be a twentieth of the value they used to provide to their fellow man.

                      The terrifying social consequences of technology and scalability are not primarily financial – they are to do with increasing the number of people who are not able to hold down the sort of 1950s Dad job that provided personal dignity. This is not because the people are getting worse, it’s because the competition – machines – are getting better. Sure you can give such folk welfare, or even welfare jobs, but that isn’t going to fool them that they’re useful. The opoid epidemic is not about people who are poor, but people who feel they are useless.

                      I am not theologically opposed to government intervention. I am simply aware that there is not a simple one dimensional misery line. And when the government ought to be able to do something useful, the chances that it will hit on the right thing to do are quite modest.

                      And we must not forget that 40-50% GDP per capita / median income boost the US gets from “more capitalism.” It doesn’t just buy more yachts. And you don’t want to go back to 1950s hospitals. Really you don’t.

        3. And who flattens the power differential between the UNION and the workers?!?!?

          1. Workers elect union leaders, so any time they are unhappy with how their union leaders are handling things, they are free to elect someone else instead. Workers do not elect the business’s leaders, unless they also happen to be stockholders, so there is a far greater need to flatten the power differential as between them and their employers.

            1. Yeah, that’s an amusing theoretical description of how things work, which has essentially nothing to do with my experiences in union shops.

              1. I don’t know what your experiences in union shops are, but the membership does elect the union leadership, so there is at least in theory some accountability, unlike management which is elected by nobody.

                1. I thought the owners of the business appointed (or were themselves) the management. And in the case of divided ownership resolved any difference of opinion by voting.

                  1. We’re talking about union management.

                    1. Krychek We’re talking about union management.

                      I was referring to the “management” you mentioned in the comment I was replying to :

                      Krychek but the membership does elect the union leadership, so there is at least in theory some accountability, unlike management which is elected by nobody

                      I am surprised to learn that you were referring to union management and not to the management of the business which employed the workers, represented by the union.

                      I am also surprised to learn that there is a distinction between the elected union leadership and a union management which is “elected by nobody.”

                      Plainly unions are more mysterious than I had imagined.

    2. David Welker : The economic value of the property is not significantly decreased by the presence of union organizers. The union organizers are present on the property a minimal amount of time. And their presence is non-exclusive and does not interfere with operations. If compensation must be provided for this so-called “taking” how would that even be measured?

      Excellent question.

      First as to the principle. Suppose you have two identical houses in a street (where you are looking to buy.) One is listed at $1 million and one for $950,000. The latter, but not the former, has two easements, one granted to the Bible Study Society, permitting them to enter your house and use your front hall for meetings from 8pm to 10pm every Wednesday, and the second permitting your garden to be used by the Martial Arts League, each Saturday afternoon from 1pm to 6pm.

      Which house is the better value ? Well it’s subjective. For some folk these are very minor inconveniences. For some major. But no one would seriously doubt that the market could find a willing buyer willing seller price for the second house, with its easements. And if you buy the second house for $925,000, you can always try to negotiate a deal with the two easement owners to cancel the easements for cash.

      So one easy way of measuring the value of the taking in the union rep case would be to allow employers to buy their way out of the reg.
      Don’t want union reps on your property ? Make an offer to the city. If the city refuses your offer, they must value the taking at more, hence the taking must be worth at least what you offered.

      On the other reg points, it seems to me that there is a difference between a new regulation newly applied to an existing business, and a new business starting up and being confronted with the costs of an existing regulation. In the first case it seems much easier to show that the government is taking something you already have, while in the second, you start with nothing to take, and the existing reg is just part of the landscape you walk out onto.

      1. That last paragraph is, I have to say, the first persuasive argument against it being a taking I’ve seen in this whole thread.

        1. That’s because you argue against one of the many arguments Welker made in his comment, ignore the rest, and thus consider the whole thing refuted. I’m guessing that’s a lawyer trick.

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