9th Circuit upholds organizing rights for farmworkers

On May 8, in Cedar Point Nursery v. Shiroma, 2019 DJDAR 3857, the 9th U.S. Circuit Court of Appeals upheld the right of California union organizers to enter an agricultural employer's property for the purpose of meeting with farmworkers, discussing the benefits of unionization, and soliciting farmworker support for union representation.

The ruling from a divided panel came in response to a challenge by two agricultural employers of a long-standing regulation promulgated by the Agricultural Labor Relations Board that gives union organizers the limited right to enter an employer's property one hour before work commences, one hour after work ends, and during the lunch period, to speak with farmworkers. The regulation was adopted in 1975 shortly after the Agricultural Labor Relations Act was signed into law, and was challenged by employers then. That challenge ended up in the California Supreme Court, in ALRB v. Superior Court (Pandol & Sons), 16 Cal. 3d 392 (1976), where a 4-3 panel similarly upheld the right of union "access" to employee farmworkers.

In the case before the 9th Circuit, Cedar Point Nursery and Fowler Packing Company (the "growers") were involved in labor disputes with the United Farm Workers union in the summer and fall of 2015. Pursuant to the ALRB's regulations, UFW was granted and took access to the employer's fields to speak with employees, in one case about joining a UFW sponsored strike, and in another case to discuss the benefits of unionization. The growers protested and alleged UFW was interfering with production activities, and eventually sued the individual members of the ALRB. The growers' suit sought declaratory and injunctive relief to prevent the ALRB from enforcing the access regulation against them, arguing that the access regulation constitutes an unlawful per se taking under the takings clause of the Fifth Amendment and that it amounts to an unlawful seizure of property under the Fourth Amendment.

After denying the growers' motion for injunctive relief, the district court granted the ALRB's motion to dismiss. The district court rejected the growers' argument that the regulation constitutes a per se categorical taking, either on its face or as applied to them. The district court also held the growers had not shown that the regulation causes a meaningful interference with the growers' property rights to constitute a seizure within the meaning of the Fourth Amendment. The district court granted the growers' leave to amend but the growers declined and instead appealed to the 9th Circuit.

As to the Fifth Amendment claim that the regulation constitutes a taking, the 9th Circuit panel rejected that argument. The panel found that the growers failed to establish any of the three legal circumstances amounting to a taking under the Fifth Amendment. The first taking category is "where government requires an owner to suffer a permanent physical invasion of her property -- however minor." The second category of takings occur when regulations completely deprive an owner of "all economically beneficial use" of her property. The third category of takings involves regulatory actions governed by the standards set out on Penn Central Transportation v. New York City, 438 U.S. 104 (1978), a case involving the designation of property as a historic landmark and the limits on land-use that correspond with such a designation.

The panel largely focused on whether the access regulation constituted a "permanent" occupation or invasion of property in dismissing the growers' takings claim. The panel held that the sole "property right" affected by the regulation is the growers' "right to exclude," and that while the right to exclude is "one strand" in the "bundle" of property rights, there is no permanent physical invasion of property when the government action only affects one strand in the entire bundle of property rights: "Where an owner possesses a full 'bundle' of property rights, the destruction of one strand of the bundle is not a taking, because the aggregate must be viewed in its entirety."

In connection with this analysis, the panel rightly pointed out that the access regulation had numerous limitations attached to it, including time limits (allowing only up to one hour access during regular work hours), limits on the number of union organizers, and availability only for four 30-day periods in an entire year. Thus, the panel correctly found that there was no "permanent" infringement of the right to exclude, but rather, this right was only affected for a small amount of work time.

The panel also relied largely on a First Amendment Case, PruneYard Shopping Center v. Robbins, 447 U.S. 704 (1980), where both the California and U.S. Supreme Courts affirmed the right to exercise speech and handbilling activity in private shopping centers, holding that such government protection of this activity did not constitute a taking of private property. The 9th Circuit panel noted that in PruneYard, even though the free speech protection limited the property owner's right to exclude on a permanent basis, that limitation did not constitute a "permanent physical invasion of property."

As to the Fourth Amendment seizure argument, the growers' argued that the access regulation authorized a "technical" trespass of their property amounting to an unlawful seizure. Noting that a "seizure of property" occurs when there is some meaningful interference with an individual's possessory interest in that property, the panel held that the growers failed to show that the limited access granted to union organizers "meaningfully interfered" with possessory interests in the property. The panel also dismissed the growers' claim that the access regulation amounted to a seizure because it profoundly changes the character of the growers' property. The panel held that the growers failed to provide any evidence whatsoever that the character of their property was in any way "profoundly different" because of the access regulation.

In dissent, Judge Edward Leavy argued that the growers' case should not be dismissed because the growers had alleged that there were alternative methods for the union to communicate with farmworkers; however, the majority panel properly rejected this argument as irrelevant to the constitutional issues because the balancing of interests and factors in the dissent's analysis would only apply in cases involving whether the ALRA needed to follow the National Labor Relations Board's precedent concerning access to employees, an issue not before the panel.

The 9th Circuit's Cedar Point decision is a great victory for farmworkers and unions organizing farmworkers in California, as the decision followed the California Supreme Court's decision in Pandol & Sons issued decades earlier. Both courts recognized the very important labor organizing right afforded to California farmworkers: the right to receive information about unionization and to exercise those rights based on full access to information.

Mr. Martinez and co-counsel at Schwartz, Steinsapir, Dohrmann & Sommers wrote an amicus brief on behalf UFW and UFCW, Local 770 in the Cedar Point case.