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Sagaser, Watkins & Wieland Submits Comments in Opposition to ALRB's Proposed Regulations Regarding Worker Education

Below is the comments submitted to the ALRB on September 9, 2015. If you have questions regarding the ALRB's access rule, the ALRB's proposed worker education rule, or any other employment and labor law issues, please call (559) 421- 7000 and ask for one of our attorneys. http://www.sagaserlaw.com/Labor-Relations-Collective-Bargaining-And-NLRB-ALRB-Proceedings.shtml

September 9, 2015

To: Members of the California Agricultural Labor Relations Board

Re: Comments Concerning Proposed Regulations Regarding Worker Education

Dear Chairman William B. Gould, IV, Board Member Genevieve A. Shiroma, Board Member Kathleen Riviera-Hernandez, and Executive Secretary, J. Antonio Barbosa:

I.

THE PROPOSED REGULATION INFRINGES ON CONSTITUTIONAL

PROPERTY RIGHTS

Over the years this office has represented numerous agricultural employers before the Agricultural Labor Relations Board (ALRB). Regarding the proposed regulations that would allow access to agricultural employers' private property during core work hours and/or employee meal or rest breaks, there is no valid justification for such an intrusion into private property rights protected under the Fifth Amendment of the United States Constitution as well as Article I, Section I of the California Constitution, nor can such regulation be justified as a valid act of police power. It is submitted that the Agricultural Labor Relations Act cannot justify such an intrusion onto private property rights as there are less intrusive means to educate agricultural employees or employees in general.

It should be noted that the access rule promulgated by the Agricultural Labor Relations Board in 1975 was an emergency regulation and was predicated on the conditions that existed in 1975. At that time there was an administrative determination that was upheld by the California Supreme Court in a narrow 4-3 decision that based upon the conditions that existed in 1975, which showed that there was a lack of alternative means of communication, the access regulation which was enacted as an emergency regulation was a valid exercise of the police power. Significantly, the California Supreme Court did not balance the First Amendment Rights of union organizers to express their opinions against the Fifth Amendment Rights of the property owners. Even under the conditions that existed in 1975, if the Court had applied a balancing test, the emergency access rule regulation could not be justified under a Constitutional Rights analysis. The California Supreme Court sidestepped the Constitutional issues by simply stating that it was a valid exercise of police power under the conditions that existed since 1975.

As explained below, the conditions that supported the emergency regulation of 1975 simply do not exist in the 21st century. Unions, as well as government agencies can communicate with employees without intruding upon private property rights by way of the internet, social media, radio, television and numerous other media outlets. Numerous other state and federal agencies could make similar claims that there is a need for employee education. For example, any of the below state agencies could make similar claims that they need to intrude upon private property rights in order to engage in employee education. Those entities include, but are not limited to the following:

1. Cal-OSHA

2. California Labor Commissioner

3. California Department of Health

4. Various School Districts and California Department of Education

5. Various County Departments and State Department of Social Services

6. Various County, City and State Law Enforcement Agencies

7. Secretary of State who could claim that there was a need for "voter education"

8. California Department of Food and Agricultural which could claim that employees needed to have education on pesticide safety and other issues

9. California Department of Fair Employment & Housing

10. Various County Ag Commissioners; and

11. Franchise Tax Board which could maintain employees need to be educated on the various tax obligations of wage earners.

The list of potential agencies that could likewise make similar claims that are federal agencies include, but are not limited to the following:

1. Federal OSHA

2. Social Security

3. U.S. Department of Education

4. Food & Drug Administration

5. Equal Employment Opportunity Commission

6. Environmental Protective Agency

7. Department of Health & Human Services

8. Department of Labor

9. Internal Revenue Service

As set forth in Exhibit "A," there are more than 500 California state government agencies, department and commissions as of September 12, 2012. This does not include local county agencies. As set forth, in Exhibit "B," the website for the California agency directory lists at least 481 state agencies. Again, this does not include any county or any other local agencies and does not include federal agencies. Under this rationale, private employers would have very little time for production as hundreds of Agencies could in theory be "educating" employees during core work hours. To assist the Board in understanding why the proposed worker education regulation is not appropriate and is actually unconstitutional when alternative means of communication exist, the following is submitted.

II.

BACKGROUND HISTORY OF THE ACCESS RULE

The access rule was enacted in 1975 as an emergency regulation as part of the enactment of the Agricultural Labor Relations Act. Basically, the access rule gives union organizers the right to come onto the farmer's property one hour before the commencement of work, one hour during the middle of the workday (lunch access) and one hour after the end of the workday.

III.

THE CALIFORNIA SUPREME COURT'S 1976

DECISION UPHOLDING THE VALIDITY OF THE ACCESS RULE

In 1976, in a narrow 4-3 decision, the California Supreme Court in Agricultural Labor Relations Board v. Superior Court of Tulare County (1976) 16 Cal.3d 392, 128 Cal.Rptr. 183, upheld the validity of the access rule under the conditions that existed as of the time the access rule was enacted. The Court did not engage in a balancing of the First Amendment right of the employees or the union as opposed to the property owner's Fifth Amendment right. The reason the Court did not engage in such a balancing of Constitutional rights is that the Fifth Amendment property right would have prevailed. In order to avoid this Constitutional balancing, the Court wrote a narrow decision stating that the access rule was a proper exercise of the police power under the facts that existed in 1975.

In so doing, the Court noted that efforts to communicate with farm workers by advertising or broadcasting in the local media were futile due to the fact that in 1975 there were a limited number of media stations using the farm workers' mother tongue. The Court also noted that printed messages in handbills, mailings, or local newspapers were equally incomprehensible if they were not done in the farm workers' language. The Court also noted the migratory nature of the California work force in 1975 and the fact that many of the farm workers were illiterate.

More than forty years have passed since the access rule was enacted in 1975. The presumption of a migrant labor force needs reexamining. An entire generation of farm workers has had their children educated through the public education system and with the advent of the Immigration Reform and Control Act of 1986 (IRCA), California no longer has a predominantly migrant labor force. By establishing the requirement that the agricultural employer turn over the names and addresses of all employees upon a 10 percent showing of interest by the union (pre-petition lists), the ALRB has, by its own regulations, subsequently created alternative means of communication that did not exist in 1975. See 8 C.C.R. § 20910. The internet and social media now provide ample alternative means of communication in a multitude of languages.

IV.

THE FAILURE OF THE CALIFORNIA SUPREME COURT TO BALANCE THE PROPERTY OWNER'S FIFTH AMENDMENT RIGHTS AGAINST THE ALLEGED FIRST AMENDMENT RIGHTS OF THE UNION ORGANIZERS MAKES THE ACCESS RULE CONSTITUTIONALLY INVALID IN THE YEAR 2015 AS ALTERNATIVE MEANS OF COMMUNICATION EXIST

The United States Supreme Court has made it clear that issues involving union access onto an employer's private property require a case-by-case analysis. Access is only given in those compelling instances when alternative means of communication do not exist. In Lechmere, Inc. v. NLRB (1992) 502 U.S. 527, 112 S.Ct. 841, the United States Supreme Court found that the NLRB had improperly found an unfair labor practice occurred when a private employer kept union organizers off the employer's private property. The Court noted that accessibility to the employees was suggested by the union's success in contacting a substantial percentage of them directly via mailings, phone calls and home visits. Moreover, regarding the union's argument that advertising in a local newspaper was too expensive, the Supreme Court noted that whatever merits of the union's conclusions, other means of communication were readily available such as signs displayed from the public property adjoining the employee parking lot. The Court noted that access to employees, not success in winning them over, is the critical issue.

It is submitted that the ALRB's 1975 blanket conclusion that alternative means of communication do not exist cannot be maintained under the factual circumstances that exist in 2015. Particularly considering the internet and social media channels that now exist in the 21st century

V.

THE TAKING OF PRIVATE PROPERTY UNDER COLOR OF STATE LAW WITHOUT DUE PROCESS OR JUST COMPENSATION VIOLATES 42 U.S.C. §1983

42 U.S.C. §1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The ALRB's access rule constitutes the necessary regulation which deprives California landowners of their property rights secured by the Fifth Amendment and the deprivation of their property rights is without due process.[1] The same would be true if access to private property is taken under the guise of "employee education."[2]

VI.

THE TAKING OF A PROPERTY RIGHT AND GRANTING AN ACCESS EDUCATION EASEMENT CONSTITUTES A TAKING WITHIN THE MEANING OF ARTICLE 1, SECTION 19 OF THE CALIFORNIA CONSTITUTION

Article 1, Section 19 of the California Constitution provides as follows:

Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.

As set forth in Condemnation Practice in California (1973 CEB): To recover compensation in an inverse condemnation case, plaintiff must allege and prove

(a) That plaintiff had an interest in certain real property;

(b) That defendant planned, approved, constructed, or operated a public project, or was otherwise engaged ("substantially participating") in some activity for public use or benefit (Stoney Creek Orchards v. State (1970) 12 CA3d 903, 91 CR 139);

(c) That plaintiff's real property was taken or damaged, thereby suffering diminution in value;

(d) That defendant's activity or failure to act as planned was the proximate (or substantial) cause of the taking or damaging; and

(e) That plaintiff has previously claimed just compensation for the taking or damage and his claim has been rejected.

It is clear that the elements of inverse condemnation can be met. First, the farmer has an interest in his real property that the State of California and the Agricultural Labor Relations Board has determined to grant to union organizers or government employees access to private property without securing a court sanctioned search warrant. A result of this taking, the landowners' property rights has been damaged. The same would be true under the proposed employee education regulation. It is clear that allowing the unions or government agencies to come onto the property without a court issued search warrant results in a reduction of the use and enjoyment of the property.

VII.

UNDER VARIOUS REGULATIONS AND PROGRAMS SUCH AS THE

GLOBAL FOOD INITIATIVE,

THIRD PARTIES ARE NOT ALLOWED INTO PRODUCTION AREAS

Growers are obligated under various trade programs, such as the Global Food Safety Initiative, and agreements with various vendors that it will abide by strict regulations as to the individuals who are allowed into production areas. Any access by third parties who are not employed by a Grower creates a possibility that the Grower may incur extensive monetary damages. For example, the Grower may lose the ability to market its crop if there is substantial contamination by third parties entering into the production areas.

VIII.

ANY EXERCISE OF THE POLICE POWER THAT AFFECTS CONSTITUTIONAL RIGHTS MUST BE JUSTIFIED BASED UPON THE CIRCUMSTANCES THAT CURRENTLY EXIST AND NOT SIMPLY HISTORICAL CIRCUMSTANCES

As the California Supreme Court held in Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 160, the constitutionality of a measure enacted under the police power depends upon the actual existence of conditions producing "...ill effects of sufficient seriousness to make [the challenged law] a rational curative measure".

It is clear that based on the current conditions that exist in California in 2015 that employee education which infringes upon Fifth Amendment Constitutional rights as well as rights under Article I. Section I of the California Constitution cannot be justified when numerous alternative means of education exist. Recently, the United States Supreme Court noted that a legislative act that imposes current burdens must be justified by current needs. (See, Shelby County, Alabama v. Holder (2013) 133 S.Ct. 2612; Northwest Austin Mun. Utility Dist. No. One v. Holder (2009) 557 U.S. 193, 203.)

Our own California Supreme Court has likewise held that a legislative act that imposes current burdens must be justified by current needs. (Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1 at page 26.)

CONCLUSION

In summary, the intrusion upon constitutionally protected property rights under both the United States Constitution and the California Constitution by the proposed enactment of the "Worker Education Regulations" is an invalid exercise of the police power that cannot be justified based upon the current conditions that exist in 2015. As noted, every government agency that seeks to educate the general public or a segment of the public could make the same arguments that the ALRB is attempting to utilize to justify the worker education regulation. Neither the ALRB, nor any of the numerous other government agencies (which are estimated to be more than 500) can justify the intrusion into and infringement of constitutionally protected property rights. There are too many alternatives that are less intrusive and less restricted. With the advent of the internet and various social media as well as the expansion of media through television, radio, YouTube and other sources, there is ample opportunity for the government to communicate with its citizens and residents without violating constitutionally protected property rights.

Should the ALRB ignore the overwhelming legal authority that would invalidate such an intrusion upon constitutional property rights, it is certain that the ALRB will be subjected to protracted litigation regarding not only the validity of the worker education regulations, but the underlying access rule which has outlived its legal justification in the 40 years that have passed since 1975. What may have been a valid exercise of the emergency police power in the 20th century, can no longer be justified in the 21st century.

Dated:___________, 2015 Respectfully submitted,

SAGASER, WATKINS & WIELAND PC

By:_________________________________

Howard A. Sagaser


[1] The Fourth Amendment protects against all government intrusions, not just those by police officers. (See Camara v. Municipal Court of City and County of San Francisco (1967) 387 U.S. 523, 536, 87 S.Ct. 1727, 18 L. Ed 2d 930; See also Salwasser Manufacturing Co v. Municipal Court (1979 5th Dist.) 94 Cal.App.3d 223, 231, 156 Cal.Rptr. 292 [court reversed denial of write of prohibition to restrain criminal proceedings stemming from OSHA investigation where investigators did not show probable cause of a safety violation.] Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 311, 98 S.Ct 1816, 1819, 56 L.Ed.2d 305 [The warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes]; Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 [reasonable search of private property for enforcement of municipal housing code required probable cause to issue a warrant]; See v. City of Seattle (1967) 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 [standard outlined in Camara applies to commercial premises as well.]

[2] In Marshall v. Barlow's, Inc., the Court held a statute unconstitutional that permitted warrantless OSHA inspections of "any factor, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee." (Marshall v. Barlows, Inc. (1978) 436 U.S. 307, 309 fn.1.)

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