Cedar Point Nursery v. Shiroma

• Decision Date: 08 May 2019
• Docket Number: No. 16-16321,16-16321
• Citation: 923 F.3d 524
• Parties: CEDAR POINT NURSERY ; Fowler Packing Company, Inc., Plaintiffs-Appellants, v. Genevieve SHIROMA; Cathryn Rivera-Hernandez; Santiago Avila-Gomez, Esquire; Isadore Hall III, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

923 F.3d 524

CEDAR POINT NURSERY ; Fowler Packing Company, Inc., Plaintiffs-Appellants,

v.Genevieve SHIROMA; Cathryn Rivera-Hernandez; Santiago Avila-Gomez, Esquire; Isadore Hall III, Defendants-Appellees.

No. 16-16321

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2017 San Francisco, California

May 8, 2019

PAEZ, Circuit Judge:

In 1975, the California legislature enacted the Agricultural Labor Relations Act ("ALRA") to "ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations."¹ Among the ALRA’s enactments was the creation of the Agricultural Labor Relations Board ("the Board"). Shortly after the ALRA’s effective date, the Board promulgated a regulation allowing union organizers access to agricultural employees at employer worksites under specific circumstances. In this case, we are asked to decide whether the access regulation is unconstitutional as applied to Plaintiffs, Cedar Point Nursery and Fowler Packing Company (collectively, "the Growers").

The Growers appeal the district court’s dismissal of their complaint seeking declaratory and injunctive relief against members of the Board. The Growers contend that the access regulation, as applied to them, is unconstitutional in two ways. First, the Growers allege that the regulation amounts to a per se taking in violation of the Fifth Amendment because it is a permanent physical invasion of their property without just compensation. Second, the Growers allege that the regulation effects an unlawful seizure of their property in violation of the Fourth Amendment. We conclude the access regulation does not violate either provision, and affirm.

BACKGROUND

The Access Regulation

The ALRA authorized the Board to make "such rules and regulations as may be necessary to carry out" the ALRA. Cal. Lab. Code §§ 1141, 1144. Pursuant to this authority, the Board promulgated an emergency regulation shortly after the ALRA’s effective date that allowed union organizers access to employees on their employer’s property under limited circumstances. The Board later certified that it had subjected the regulation to notice and comment, allowing the regulation to remain in effect until repealed or amended.² Agric. Labor Relations Bd. v. Superior Court (Pandol & Sons) , 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, 692 n.3 (1976).

The access regulation was promulgated in recognition that

[t]he United States Supreme Court has found that organizational rights are not viable in a vacuum. Their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others. When alternative channels of effective communication are not available to a union, organizational rights must include a limited right to approach employees on the property of the employer. Under such circumstances, both statutory and constitutional principles require that a reasonable and just accommodation be made between the right of unions to access and the legitimate property and business interests of the employer .... Generally, unions seeking to organize agricultural employees do not have available alternative channels of effective communication. Alternative channels of effective communication which have been found adequate in industrial settings do not exist or are insufficient in the context of agricultural labor.

Cal. Code Regs. tit. 8, § 20900(b)–(c).

Thus, the Board determined that adopting a universally applicable rule for access—as opposed to case-by-case adjudications or the "adoption of an overly general rule"—would best serve the "legislatively declared purpose of bringing certainty and a sense of fair play to a presently unstable and potentially volatile condition in the agricultural fields of California." Cal. Code Regs. tit. 8, § 20900(d). The access regulation was intended to "provide clarity and predictability to all parties." Id.

In furtherance of these goals, the access regulation declared that the enumerated rights of agricultural employees under the ALRA include "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." Cal. Code Regs. tit. 8, § 20900(e). This right of access is not unlimited. Rather, the access regulation imposes a number of restrictions on access relating to time, place, number of organizers, purpose, and conduct. Id. These restrictions include, among others:

[A]n agricultural employer’s property shall be available to any one labor organization for no more than four (4) thirty-day periods in any calendar year. § 20900(e)(1)(A).

Each thirty-day period shall commence when the labor organization files in the appropriate regional office two (2) copies of a written notice of intention to take access onto the described property of an agricultural employer, together with proof of service of a copy of the written notice upon the employer .... § 20900(e)(1)(B).

Organizers may enter the property of an employer for a total period of one hour before the start of work and one hour after the completion of work to meet and talk with employees in areas in which employees congregate before and after working. § 20900(e)(3)(A).

In addition, organizers may enter the employer’s property for a single period not to exceed one hour during the working day for the purpose of meeting and talking with employees during their lunch period, at such location or locations as the employees eat their lunch. § 20900(e)(3)(B).

Any organizer who violates the provisions of this part may be barred from exercising the right of access ... for an appropriate period of time to be determined by the Board after due notice and hearing. Any labor organization or division thereof whose organizers repeatedly violate the provisions of this part may be barred from exercising the right of access ... for an appropriate period of time to be determined by the Board after due notice and hearing. § 20900(e)(5)(A).

Shortly after the Board promulgated the access regulation, several agricultural employers challenged the regulation in California state courts on both constitutional and statutory grounds. Pandol & Sons , 128 Cal.Rptr. 183, 546 P.2d at 692. Ultimately, the California Supreme Court, in a 4–3 decision, vacated several different trial courts’ orders enjoining enforcement of the regulation. Id. , 128 Cal.Rptr. 183, 546 P.2d at 690. The Pandol & Sons court rejected the statutory claims by holding that the regulation was a permissible exercise of the Board’s statutory authority under the ALRA and that to the extent the access regulation conflicted with the general criminal trespass statute, the access regulation prevailed. Id. at 128 Cal.Rptr. 183, 546 P.2d at 699–06. The court likewise rejected the plaintiffs’ constitutional claims: first, that the regulation violated their due process rights, and second, that it constituted a taking without just compensation. Id. at 128 Cal.Rptr. 183, 546 P.2d at 693–699. The regulation has remained in force to the present.

The Growers

Plaintiff Cedar Point is an Oregon corporation with a nursery located in Dorris, California. It raises strawberry plants for producers. Cedar Point employs approximately 100 full-time workers and more than 400 seasonal workers at its Dorris nursery. None of its employees lives on the nursery property. Its seasonal employees are housed in hotels in Klamath Falls, Oregon.³

Cedar Point alleges that on October 29, 2015, organizers from the United Farm Workers union ("the UFW") entered its property at approximately 5 a.m., without providing prior written notice of intent to take access as required by the regulation. At around 6 a.m., the UFW organizers moved to the nursery’s trim sheds, where they allegedly "disrupted work by moving through the trim sheds with bullhorns, distracting and intimidating workers." The majority of workers in the trim sheds did not leave their work stations during this time, although some workers joined the UFW organizers in protest. Most of the workers who had left their stations during the protest returned to work by October 31, two days after the UFW organizers entered the property. Sometime after the UFW organizers had accessed the property, they served Cedar Point with written notice of intent to take access. Following this event, Cedar Point filed a charge against the UFW with the Board, alleging that the UFW had violated the access regulation by failing to provide the required written notice prior to taking access. The UFW likewise filed a charge against Cedar Point, alleging that Cedar Point had committed an unfair labor practice. Cedar Point alleges that "it is likely that [UFW] will attempt to take access again in the near future," and that it would "exercise its right to exclude the [UFW] trespassers from its property" if not for the regulation.

Plaintiff Fowler is a large-scale shipper of table grapes and citrus, and is a California corporation headquartered in Fresno. Fowler employs 1,800 to 2,500 people in its field operations and approximately 500 people at its Fresno packing facility. Fowler’s employees do not live on the premises; Fowler alleges in the complaint that its employees are "fully accessible to the Union when they are not at work." The UFW filed an unfair labor practice charge with the Board against Fowler, alleging that Fowler blocked its organizers from taking access permitted by the access regulation on three days in July 2015. The UFW subsequently withdrew the charge in January 2016. Fowler alleges that if it were not for the access regulation, it would oppose union access and "exercise its right to exclude union trespassers from its property."

Procedural History

In February 2016, the Growers filed a complaint for declaratory and injunctive relief under 42 U.S.C. § 1983 against several members of the Board and the Board’s Executive Secretary, all of whom were sued...