923 F.3d 524

LEAVY, Circuit Judge, dissenting:
I respectfully dissent. In my view, the complaint sufficiently alleges that the Agricultural Labor Relations Board's Access Regulation is an unconstitutional taking, 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 employer's nonpublic, private property for substantial periods of time, when none of the employees live on the employer's premises.
In spite of the majority's reliance on PruneYard Shopping Center. v. Robins , 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), 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.
The California Legislature directs the Agricultural Labor Relations Board to "follow applicable precedents of the National Labor Relations Act." Cal. Labor Code § 1148. The outcome of this case is guided by cases concerning the rights of nonemployees to physically access the employer's property in order to communicate with employees about union organization. Although the NLRA's enforcement authority does not apply to "any individual employed as an agricultural laborer." 29 U.S.C. § 152(3), there is no dispute in this case about the agricultural status of the employee laborers. Rather, the dispute raised in the Grower's complaint is the constitutionality of the Board's regulation requiring employers to grant substantial physical access to nonemployee organizers where the agricultural employees do not reside on the employers' private property and are not beyond the reach of the organizers' message.
The California Supreme Court, when first analyzing the Access Regulation in Pandol & Sons , 128 Cal.Rptr. 183, 546 P.2d at 692 (1976), correctly framed the issue: "The matter at bar, by contrast, is not primarily a First Amendment case ... ; rather, the interest asserted is the right of workers employed on the premises in question to have effective access to information assisting them to organize into representative units pursuant to a specific governmental policy of encouraging collective bargaining." Id. at 128 Cal.Rptr. 183, 546 P.2d at 694 (emphasis added). The Pandol court looked for guidance to NLRB v. Babcock & Wilcox , 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), "[W]hen the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize." Pandol , 406, 546 P.2d at 699 (quoting Babcock , 351 U.S. at 112, 76 S.Ct. 679 ).
The Pandol court upheld the regulation under the California constitution, comparing the inaccessibility of workers in California's agricultural industry to federal labor cases involving inaccessibility of workers in mining camps, lumber camps, and rural resort hotels. Id. at 406-408. The Pandol court summarized the rule of Babcock : "[I]f the circumstances of employment place the employees beyond the reach of reasonable union efforts to communicate with them , the employer must allow the union to approach his employees on his property." Id. at 409 (quoting Babcock , 351 U.S. at 113, 76 S.Ct. 679 ) (emphasis added). The Babcock rule has not been abrogated. See Lechmere v. NLRB , 502 U.S. 527, 540-41, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992) (reaffirming Babcock ); Hudgens v. NLRB , 424 U.S. 507, 521-22, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (approving Babcock's admonition that accommodation between employees' labor rights and employers' property rights "must be obtained with as little destruction of one as is consistent with the maintenance of the other"); Central Hardware Co. v. NLRB , 407 U.S. 539, 545, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972) (explaining that under Babcock , nonemployee organizers cannot claim a limited right of access to a nonconsenting employer's property until after the requisite need for access to the property has been shown); ITT Industries, Inc. v. N.L.R.B ., 251 F.3d 995, 999 (D.C. Cir. 2001) ("For nearly fifty years, it has been black-letter labor law that the Board cannot order employers to grant nonemployee union organizers access to company property absent a showing that on-site employees are otherwise inaccessible through reasonable efforts.").
In my view, the Access Regulation allowing ongoing access to Growers' private properties, multiple times a day for 120 days a year (four 30-day periods per year) is a physical, not regulatory, occupation because the "right to exclude" is "one of the most fundamental sticks" in the bundle of property rights. Dolan v. City of Tigard , 512 U.S. 374, 394, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) ; Kaiser Aetna v. United States , 444 U.S. 164, 179-80, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (stating that the right to exclude others is one of the "essential sticks" in the bundle of property rights). The Growers need not allege that the Access Regulation affects more property right "sticks" beyond this single, fundamental property right.
The complaint alleges that the Access Regulation is unconstitutional because the Growers' employees, none of whom live on the Growers' premises, are not beyond the reach of union efforts. The complaint alleges employees can be reached by union organizers at nearby, off-premises locations through alternative means of communication. Complaint, Par. 27 ("Seasonal workers at Cedar Point are housed in hotels in nearby Klamath Falls, Oregon. None of Cedar Point's full-time or seasonal employees live on the Nursery's property."); Complaint, Par. 37 ("Fowler's employees do not live on the premises and are fully accessible to the Union when they are not at work."); Complaint Par. 64 ("And because such access is unnecessary given the alternative means of communication available, see Lechmere v. NLRB , 502 U.S. 527, 540-41, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992), it is unreasonable to allow union organizers to seize this possessory interest in Plaintiff's property.").
The Supreme Court in Lechmere expressly reaffirmed Babcock's critical distinction between employees and nonemployees regarding union activities on private property. Id. at 537, 112 S.Ct. 841. The Court also reaffirmed Babcock 's general rule that "an employer may validly post his property against nonemployee distribution of union literature," and rejected an initial balancing test. The Court stated that the threshold inquiry is whether the facts in a case justify application of Babcock 's inaccessibility exception. Id. at 538-39, 112 S.Ct. 841. The Court explained, "[T]he exception to Babcock's rule is a narrow one. It does not apply wherever nontrespassory access to employee may be cumbersome or less-than-ideally effective, but only where 'the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them." Id. at 539, 112 S.Ct. 841 (quoting Babcock , 351 U.S. at 113, 76 S.Ct. 679 (original emphasis)). The Court concluded, "[B]ecause the employees do not reside on Lechmere's property, they are presumptively not 'beyond the reach' of the union's message." Id . at 540, 112 S.Ct. 841 (internal citation omitted). Here, in light of the Growers' allegations, the burden should shift to the defendants to show "unique obstacles" that frustrate their reasonable access to the Growers' employees. See id . at 540-41, 112 S.Ct. 841.
In summary, because the Growers sufficiently allege that no employees live on the Growers' properties and the employees are not beyond the reach of the union's message, the district court erred in dismissing the complaint.
The issue in PruneYard was whether the California constitution, which allows individuals to exercise First Amendment rights on private shopping center property, violated the federal constitution. The issue involved "only a state-created right of limited access to a specialized type of property. " Id. at 98, 100 S.Ct. 2035 (Powell, concurring). The PruneYard "specialized property" was a multi-block shopping center, open to the public to "come and go as they please," id . at 87, 100 S.Ct. 2035, where "25,000 persons are induced to congregate daily." Id. at 78, 100 S.Ct. 2035 (quoting Robins v. Pruneyard Shopping Ctr. , 23 Cal. 3d 899, 910-911, 153 Cal.Rptr. 854, 592 P.2d 341 (1979) ). By contrast, in this case, the Growers are private employers with employees entering their properties daily for the sole purpose of agricultural work, with no public access.
The property owner in Pruneyard wields the power to impose time, place, and manner restrictions on the general public's free expression rights on its premises. In the case at bar, a California agency imposes its power to regulate time, place, and manner restrictions on the Growers' right to exclude nonemployees. In other words, Pruneyard involves a private party regulating the expressive conduct of other private parties entering its property where the public is invited. Our case involves a state agency universally regulating the access of nonemployee organizers on non-public, private property.
The majority fails to cite any cases dealing with the property rights of employers as opposed to access rights by nonemployees.

Passage view · GavelSight