<em>PruneYard</em> Undone: California's Union Easement – Which Invites Labor Organizers To Enter Private Property – Isn't A Physical Taking

The title of this post may have you wondering, especially the part about how a regulation that invites others to physically enter private property, is analyzed by a court as a Penn Central taking and not a physical taking.  At issue in the Ninth Circuit's 2-1 opinion in Cedar Point Nursery v. Shiroma, No. 16-16321 (May 8, 2019) was a regulation adopted by California's Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to "access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support." The regulation, as the Ninth Circuit majority pointed out, "is not unlimited," and regulates the "time, place, number of organizers, purpose, and conduct" of the union organizers. Slip op. at 7-8. The union is required to submit a…

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