Metropolitan News-Enterprise


Thursday, May 9, 2019


Page 1


Ninth Circuit:

Rule Allowing Union Organizers to Enter Worksite, Solicit Workers, Is Valid

Majority: Agricultural Labor Relations Board’s ‘Access Regulation’ Passes Muster

Dissent: Complaint Alleges Unconstitutional ‘Taking,’ Action Should Proceed


By a MetNews Staff Writer


The majority of a three judge panel of the Ninth U.S. Circuit Court of Appeals yesterday upheld the constitutionality of a regulation allowing union organizers to come onto worksites to talk with agricultural workers, with a dissenter maintaining that the rule is violative of the Fifth Amendment.

Circuit Judge Richard Paez wrote for himself and Circuit Judge William A. Fletcher in declaring the Agricultural Labor Relations Board’s “access regulation” to be valid, as Chief District Judge Lawrence J. O’Neill of the Eastern District of California found in dismissing the action without leave to amend. Senior Circuit Judge Edward Leavy dissented.

The plaintiffs, Cedar Point Nursery and Fowler Packing Company, maintained that the regulation allows for a “taking” of their properties without just compensation, in violation of the Fifth Amendment, as well as an unlawful “seizure” in contravention of the Fourth Amendment.

Cedar Point, which raises strawberry plants, alleged that on Oct. 29, 2015, organizers from the United Farm Workers union came on its property, without notice and about 6 a.m., “disrupted work by moving through the trim sheds with bullhorns, distracting and intimidating workers.”  Fowler, which ships table grapes, made a similar allegation.

The regulation provides for “the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”

Paez wrote:

“Here, the Growers allege that the access regulation, as applied to them, effects a Fifth Amendment taking by creating an easement that allows union organizers to enter their property ‘without consent or compensation.’ The Growers base their Fifth Amendment argument entirely on the theory that the access regulation constitutes a permanent physical invasion of their property and therefore is a per se taking.”

Declaring the contention to be unsound, he pointed to the U.S. Supreme Court’s 1980 decision in PruneYard Shopping Center v. Robins which affirmed a California Supreme Court ruling that persons may come onto a private shopping center and, without consent of the owner, collect signatures on petitions. Justice William Rehnquist (later chief justice, now deceased) said:

“Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants’ property right under the Taking Clause.”

Analogous Situation

Paez said that “[i]n many ways,” the “access regulation” “is analogous to the restriction at issue in PruneYard, which required the shopping center to permit individuals to exercise free speech rights on its property.”

He went on to say:

“We agree with the district court’s conclusion that the Growers failed to allege a plausible claim that the access regulation, as applied to them, effects a seizure protected by the Fourth Amendment.”

Leavy’s Dissent

Leavy said in his dissent:

“In my view, the complaint sufficiently alleges that the Agricultural Labor Relations Board’s Access Regulation is an unconstitutional takings so the district court erred in granting the motion to dismiss. The Growers allege that no employees reside on the employers property, and that alternative methods of effective communication are available to the nonemployee union organizers who, under the Access Regulation, are allowed to physically enter the Growers’ properties for substantial time periods. Specifically, I have found no Supreme Court case holding that non-employee labor organizers may enter an employers nonpublic, private property for substantial periods of time, when none of the employees live on the employer’s premises.”

Addressing Pruneyard, he wrote:

“In spite of the majority’s reliance on PruneYard, this is not a free speech case. Instead, this case involves labor relations and the government’s policy of encouraging collective bargaining. Thus, PruneYard provides little guidance.”

Responding to the dissent, Paez said:

“Although the dissent correctly points out that PruneYard involved free speech, it also addressed a taking claim under the Fifth Amendment….As relevant here, the Court recognized that the California Supreme Court’s decision ‘literally’ constituted a ‘taking’ of PruneYard’s right to exclude others….”

Paez pointed out that Rehnquist added (quoting a 1960 Supreme Court opinion) that “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense.”

The case is Cedar Point Nursery v. Shiroma, 16-16321.


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