California’s Agricultural Labor Relations Act provides that “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….” Pursuant to the Act, the Agricultural Labor Relations Board (ALRA) enacted regulations establishing “the right of access by union organizers to the premises of an agricultural employer for the purposes of meeting and talking with employees and soliciting their support….” In fact, upon written notice, organizers can enter the property for three hours per day: an hour before work, an hour after work, and an hour during lunch for up to four 30-day periods each year. Growers have been subject to either actual or attempted entries by union organizers pursuant to these regulations. On one occasion, United Farm Workers organizers entered Cedar Point Nursery’s property and accessed their trim sheds, where hundreds of employees were preparing strawberry plants during the busy harvest season, and disrupted, disrupted, and intimidated employees by moving through the trim sheds with bullhorns. Growers filed an as-applied challenge to the regulation against ALRA members, arguing that the regulation effectuated a taking of their property without just compensation in violation of the Taking Clause of the Fifth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment.
A California federal district court dismissed the lawsuit by holding that the regulations permitted only a temporary physical occupation of property, and therefore no “categorical taking” occurred because the Growers had not demonstrated economic injury.
On December 12, 2016, MSLF filed a friend of the court brief in support of the Growers in which MSLF cited to the holding of the Supreme Court of the United States, “We think a ‘permanent physical occupation’ has occurred …where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.” The appeal was argued before a panel of the U.S. Court of Appeals for the Ninth Circuit on November 17, 2017, and a decision is pending.