Do we have to let unions interrupt the work day? - LJC Blog - Liberty Justice Center

Do we have to let unions interrupt the work day? – LJC Blog

A case battles between the First and Fifth Amendments


Early this year, LJC joined over a dozen other organizations in filing a friend of the court brief in support of California growers.

The big question this case will answer: Is the right to organize (the First Amendment) more important than a business owner’s right to turn away trespassers from private property (the Fifth Amendment)?

Here’s the scenario, laid out by the organization representing the business owners, Pacific Legal Foundation:

“In the early morning hours in fall 2015—during Northern California’s frenetic harvest season—Cedar Point Nursery was at full staff. Five hundred employees were hard at work in trim sheds, tending to the strawberry plants that would soon ship to growers throughout the country.

“They were suddenly shocked when a crowd burst through the doors and made their way through the building, barking through bullhorns that the workers needed to join the [United Farm Workers]. Some workers were so scared and intimidated that they left the property, but most stayed on the job, uninterested in union membership.”

According to current California law, what the union did was completely legal: unions can enter a business property for up to 3 hours per day, 120 days per year to recruit members. This statutory right for labor organizers is based, in part, on the First Amendment. But the regulation violates business owners’ Fifth Amendment right to exclude trespassers from private property because it does not provide the property owners compensation for the use of their property.

So which Amendment should win?

Anyone with a basic understanding of how a farm works can understand how having a union “barking with bullhorns” for the entirety of a limited harvest season could break a business. 

The courts have consistently ruled that private property rights cannot be curbed by the right to organize if unions have other reasonable means of contacting employees. The reality is that, in today’s day and age, unions have a plethora of options when it comes to communicating with potential members: social media, television, and radio, to name a few.

Private property rights are a core value vital to a free society and the California law infringes on those rights. Our rights can’t be infringed upon simply because it’s “more convenient” for special interests or because there’s a public policy interest involved.

The First Amendment is important, and LJC fights fiercely for it week after week. However, it cannot take away a person’s Fifth Amendment right to keep people off their private property.

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