New York State Vegetable Growers Association Inc. v. James

GOP FILED COD

S vA

UNITED STATES DISTRICT COURT ae

ty,

WESTERN DISTRICT OF NEW YORK Rec encutt os □□

TT STERN DISTRICTS

NEW YORK STATE VEGETABLE

GROWERS ASSOCIATION, INC, A &

J KIRBY FARMS, LLC, PORPIGLIA

FARMS, INC., CRIST BROS.

ORCHARDS, INC., CAHOON

FARMS, INC., LYNN-ETTE & SONS,

INC.,

Plaintiffs,

v.

23-CV-1044 (JLS)

LETITIA JAMES, in her official

capacity as Attorney General of New

York, JOHN WIERNIUS, in his

official capacity as Chairperson of the

New York Public Employment

Relations Board, SARAH G.

COLEMAN, in her official capacity as

the Deputy Chair of the New York

Public Employment Relations Board,

MARIAM MANICHAIKUL, in her

official capacity as the Director of the

New York Public Employment

Relations Boards Office of Private

Employment Practices &

Representation and an Administrative

Law Judge of New York Public

Employment Relations Board,

Defendants.

DECISION AND ORDER

Plaintiffs, New York State Vegetable Growers Association, Inc., and five New

York State farms, commenced this case on October 2, 2023. They allege claims

against Defendants, New York State Attorney General Letitia James and three

officials from the New York State Public Employment Relations Board (“PERB’).

Plaintiffs claim that 2020 amendments to the State Employment Relations Act

(“SERA”), enacted as part of the Farm Laborers Fair Labor Practices Act

(“FLFLPA”), violate the United States Constitution in various ways. See Dkt. 1.

Plaintiffs moved for a temporary restraining order (“TRO”) and a preliminary

injunction (“PI”). Dkt. 2. After a status conference, the parties reached a

stipulation regarding the TRO portion of Plaintiffs’ motion. See Dkt. 22; Dkt. 23.

In addition to briefing from the parties on the PI portion of Plaintiffs’ motion,

the Court allowed briefing from various amici. Those submissions include three

briefs from amici supporting Defendants and two briefs from amici supporting

Plaintiffs; and the United States Department of Justice filed a Statement of

Interest regarding Plaintiffs’ preemption claim. See Dkt. 79; Dkt. 82; Dkt. 83; Dkt.

85; Dkt. 99; Dkt. 106.

Earlier today, the Court held a preliminary injunction hearing, which, based

on the parties’ agreement, consisted of the written record and oral argument,

without live testimony. The Court resolved the various issues raised by Plaintiffs’

motion from the bench, in an effort to facilitate a timely resolution of the PI motion

and allow one, the other, or both parties to seek appellate review without delay.

This brief, written decision and order summarizes the Court’s bench decision

granting, in part, and denying, in part, Plaintiffs’ motion for a preliminary

injunction. The transcript from the hearing contains a more fulsome discussion of

the issues and is incorporated here.

I, Preliminary Injunction Standard

To succeed on their motion, Plaintiffs must demonstrate: (1) irreparable

harm; (2) a likelihood of success on the merits; and (8) that a preliminary injunction

is in the public interest. See Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883

F.3d 32, 37 (2d Cir. 2018). They must meet the likelihood-of-success standard

because they seek an injunction that “would stay government action taken in the

public interest pursuant to a statutory or regulatory scheme.” See Bronx Household

of Faith v. Bd. of Educ. of N.Y. City, 331 F.3d 342, 349 (2d Cir. 2003).

Tl. Standing

Standing relates to a court’s constitutional power to hear and decide a case

and, therefore, implicates subject-matter jurisdiction. See Spokeo, Inc. v. Robins,

578 U.S. 330, 338 (2016). To establish standing, “a plaintiff must show (1) an

‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct

complained of,’ and (8) a ‘likel[ihood]’ that the injury ‘will be redressed by a

favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58

(2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).

In addition to those requirements, a person or entity ordinarily “may not

claim standing . . . to vindicate the constitutional rights of some third party.”

Singleton v. Wulff, 428 U.S. 106, 114 (1976) Ginternal quotation marks and citations

omitted). An exception to this general rule exists where: (1) “the relationship

between the litigant and the third party [is] such that the former is fully, or very

nearly, as effective a proponent of the right as the latter”; and (2) “there is some

genuine obstacle to” the “ability of the third party to assert his [or her] own right.”

Id. at 115-16.

Numerous courts have concluded that the employer-employee relationship

does not meet the requirements for third-party standing. See, e.g., Rover Pipeline

LLC v. Zwick, 2022 WL 17336502, at *3—*5 (6th Cir. Nov. 30, 2022) (assuming,

without deciding, that employer had a sufficiently close relationship with

employees, but holding that the employer “point[ed] to no affirmative obstacle

preventing workers from suing on their own behalf’); Region 8 Forest Serv. Timber

Purchasers Council v. Alcock, 993 F.2d 800, 810 (11th Cir. 1993) (noting that, “[i]n

cases allowing third-party standing, the relationship between the party asserting

the right and the third party has been characterized by a strong identity of

interests[,] which is absent in an employer/employee relationship,” and that “the

employee/employer relationship [was] not such that the employer would be nearly

as effective a proponent as the employees”); Fire Equip. Mfrs. Ass’n, Inc. v.

Marshall, 679 F.2d 679, 681 (7th Cir. 1982) (court did “not believe that

manufacturers or trade associations [were] the most effective advocate of employee

interests” regarding an OSHA rule).

Here, Plaintiffs assert several claims regarding the rights of farmworkers—

specifically: (1) a due process and equal protection claim related to the card-check

process in the FLFLPA; (2) a First Amendment/compelled speech claim based on

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 585 U.S. ---, 138 S.

Ct. 2448 (2018); (3) a First Amendment claim based on the absence of a

decertification procedure and a right to refrain in the FLFLPA; and (4) an equal

protection claim based on disparate treatment of agricultural employers and

employees, as alleged on the employees’ behalf. See Dkt. 1, at 81-84, 86—-95.1

Plaintiffs, an association of growers and individual farms, do not have a

sufficiently close relationship with farmworkers to raise constitutional claims on

their behalf. In the labor context, in particular, the Court cannot conclude that

farm employers’ and farmworkers’ interests are sufficiently aligned to make the

employers as effective a proponent for the farmworkers’ rights as the farmworkers

themselves. Moreover, Plaintiffs did not demonstrate that some obstacle exists to

inhibit farmworkers from asserting these constitutional claims in state or federal

court on their own behalf.

Plaintiffs therefore may not rely on these farmworker rights-based claims to

obtain a preliminary injunction here. They have standing only to assert the

remainder of their claims regarding farm employers’ rights.

III. Ripeness

A case is constitutionally ripe when “a concrete dispute affect[s] cognizable

current concerns of the parties.” N.Y.C.L.U. v. Grandeau, 528 F.3d 122, 131 (2d Cir.

2008) (internal quotation marks and citation omitted). In other words,

constitutional ripeness asks whether “the plaintiffs claimed injury, if any, is not

‘actual or imminent,’ but instead ‘conjectural or hypothetical.” Nat’ Org. for

1 Page references to docket entries are to the numbering automatically generated by

CM/ECF, which appears in the header of each page.

Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (quoting Lujan, 504 U.S.

at 560).

Here, Plaintiffs’ equal protection claim on a class-of-one theory is not

constitutionally ripe. They base this claim on the compulsory impasse arbitration

component of the FLFLPA, arguing that arbitration will result in different

collective-bargaining agreements (which Plaintiffs call “regulations”) for each

agricultural employer who goes through the process—including those who are

similarly situated to one another. But Plaintiffs acknowledge that they have not yet

been subject to compulsory impasse arbitration, let alone that the process has

resulted in collective-bargaining agreements that affect similarly situated

agricultural employers differently. As a result, this claim is not constitutionally

ripe and, thus, Plaintiffs may not rely on it to obtain a preliminary injunction.

The remaining claims—e.g., preemption related to recalling H-2A workers,

First Amendment based on employers’ rights, procedural due process related to

compulsory impasse arbitration, and equal protection based on classification—

under all of the facts alleged and evidence presented, are constitutionally ripe.2

? Prudential ripeness is “a more flexible doctrine of judicial prudence” that reflects a

court’s conclusion that a case “will be better decided later and that the parties will

not have constitutional rights undermined by the delay.” Simmonds v. I.N.S., 326

F.3d 351, 357 (2d Cir. 2003) (emphasis in original). This doctrine exists in tension

with a federal court’s “virtually unflagging” obligation to “hear and decide cases

within its jurisdiction.” Lab. Council for Latin Am. Advancement v. U.S. Env’t Prot.

Agency, 12 F.4th 234, 252-53 (2d Cir. 2021) (quoting Lexmark Int1l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 126 (2014)). Given that the Court has

jurisdiction over these remaining claims, and that the case is in its early stages, the

IV. Likelihood of Success on the Merits

A. First Amendment challenge to SERA § 704-b(2)(c)

Plaintiffs assert a facial First Amendment challenge to SERA § 704-b(2)(c),

which provides: “It shall be an unfair labor practice for an agricultural employer to:

... discourage union organization or to discourage an employee from participating

in a union organizing drive, engaging in protected concerted activity, or otherwise

exercising the rights guaranteed under this article.” They claim that this provision

is impermissible viewpoint discrimination.

Through the Fourteenth Amendment, the First Amendment prohibits states

from enacting laws that abridge the freedom of speech. Reed v. Town of Gilbert, Az.,

576 U.S. 155, 163 (2015) (citing U.S. Const. amend. I). States may not “restrict

expression because of its message, its ideas, its subject matter, or its content.” Id.

(internal quotation marks and citation omitted); see also Iancu v. Brunetti, 588 U.S.

---, 189 S. Ct. 2294, 2299 (2019) (“The government may not discriminate against

speech based on the ideas or opinions it conveys.”). Laws that target speech based

on its content “are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state

interests.” Reed, 576 U.S. at 163.

A facial challenge to a statute is based on “only the text of the statute itself,

[and] not its application to the particular circumstances of an individual.” Field

Court considers, in its irreparable harm analysis, any concerns that also may bear

on prudential ripeness.

Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006). When considering

facial First Amendment challenges, courts “may examine not only the text of the

[statute], but also any binding judicial or administrative construction of it.” Id. at

176 (internal quotation marks and citation omitted); see also Ward v. Rock Against

Racism, 491 U.S. 781, 795-96 (1989) (“[a]dministrative interpretation and

implementation of a regulation [or statute]” are “highly relevant” to analyzing a

facial challenge because, in such analysis, courts must “consider any limiting

construction that a state court or enforcement agency has proffered”) (internal

quotation marks and citation omitted).

But the limits that a proponent of a challenged statute claims are implicit

must “be made explicit by textual incorporation, binding judicial or administrative

construction, or well-established practice.” City of Lakewood v. Plain Dealer Publ’g

Co., 486 U.S. 750, 770 (1988). Courts “will not write nonbinding limits into a silent

state statute.” Id.

If no state interpretation exists, “federal courts ‘will presume any narrowing

construction or practice to which the law is fairly susceptible.” Field Day, 463 F.3d

at 177 (quoting City of Lakewood, 486 U.S. at 770 n.11). Courts will construe a

challenged statute to avoid serious constitutional problems, unless such a

construction clearly conflicts with the legislature’s intent. Id. They will not,

however, “rewrite a law to conform it to constitutional requirements.” Jancu, 588

U.S. ---, 189 S. Ct. at 2301 (declining to adopt government’s proposed construction of

the Lanham Act, which would eliminate the impermissible viewpoint

discrimination, because Court could not “see [the limiting construction] in the

statutory language”) (internal quotation marks and citation omitted).

In the labor context, the Supreme Court has “recognized the First

Amendment right of employers to engage in noncoercive speech about unionization.”

Chamber of Com. of U.S. v. Brown, 554 U.S. 60, 67 (2008) (citation omitted). In

other words, an employer may “express|] its view on labor policies or problems

unless the employer’s speech in connection with other circumstances amounts to

coercion.” Id. at 66-67 (quoting N.L.R.B. v. Va. Elec. & Power Co., 314 U.S. 469,

477 (1941)) GQnternal quotation marks and alteration omitted); see also N.L.R.B. v.

Gissel Packing Co., 395 U.S. 575, 616-18 (1969) (The NLRA “merely implements the

First Amendment by requiring that the expression of ‘any views, argument, or

opinion’ shall not be ‘evidence of an unfair labor practice,’ so long as such expression

contains ‘no threat of reprisal or force or promise of benefit’ in violation of [Section]

8(a)(1)[, which] in turn, prohibits interference, restraint or coercion of employees in

the exercise of their right to self-organization.”) (internal citation omitted).

SERA § 704-b(2)(c) is a viewpoint-based law that discriminates against

speech based on the ideas or opinions conveyed. It prohibits speech that

“discourage[s]” union organization but allows speech that encourages union

organization. See lancu, 588 U.S. ---, 189 S. Ct. at 2300 (because Lanham Act

“allow[ed] registration of marks when their messages accord with, but not when

their messages defy, society’s sense of decency or propriety,” it contained “facial

viewpoint bias”). As a result, the provision is “presumptively unconstitutional.”3

See Reed, 576 U.S. at 163.

Because Plaintiffs assert a facial challenge to SERA § 704-b(2)(c), the Court

considers the (1) text of the statute, (2) any binding judicial construction, (3) any

binding administrative construction, (4) any limiting construction proffered by an

enforcement agency, and (5) any other narrowing construction to which the

provision is fairly susceptible. Neither party cites binding judicial or binding

administrative constructions. Nor has anyone offered examples to establish a

general practice of how the provision has been applied.

Defendants offer the “Initial Guide to Collective Bargaining Rights and

Responsibilities Under the Farm Laborers and Fair Labor Practices Act,” prepared

by PERB Chair John F. Wirenius (Dkt. 57 (2019 version); Dkt. 57-4 (2020 version)).

This document provides examples of conduct that has, and has not, been held to

constitute “discouragement” of union organization in other general contexts to guide

employers. It also summarizes and cites precedent under the National Labor

Relations Act (“NLRA”), including that: “The expressing of any views, argument, or

opinion, or the dissemination thereof, ... shall not constitute or be evidence of an

unfair labor practice ..., if such expression contains no threat of reprisal or force or

promise of benefit.” Dkt. 57, at 18; Dkt. 57-4, at 15. The document recognizes that

SERA § 704-b(2)(c) “does not have an equivalent provision” to the one in the NLRA,

3 At this stage, Defendants have not meaningfully attempted to demonstrate how

SERA § 704-b(2)(c) is narrowly tailored to meet compelling state interests. See

Reed, 576 U.S. at 1638.

10

but states, “expression of opinion, under circumstances that make it clear that the

employer will neither penalize nor reward employees based on their protected

activity, and which makes clear that the employer will respect the rights of

employees|,] will most likely not constitute a basis for [an unfair labor practice]

charge.” Dkt. 57, at 138; Dkt. 57-4, at 15-16.

This “Initial Guide” document provides some guidance to employers about

SERA § 704-b(2)(c). But the document is not binding on the enforcement agency,

PERB. As such, it cannot remedy the statute’s impermissible viewpoint

discrimination on Plaintiffs’ facial challenge.

Moreover, the Court cannot conclude that SERA § 704-b(2)(c) is fairly

susceptible of the construction in the “Initial Guide” document because that

construction is not visible in the statute. See Jancu, 588 U.S. ---, 139 S. Ct. at 2301.

To read the statute how Defendants urge would be, in the Supreme Court’s words,

“not to interpret the statute [the legislature] enacted, but to fashion a new one.” See

id. at 2302.

For these reasons, Plaintiffs are likely to succeed on the merits of their First

Amendment challenge to SERA § 704-b(2)(c).

B. Procedural due process challenge to compulsory impasse

arbitration

Procedural due process “imposes constraints on governmental decisions [that]

deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due

Process Clause of the .. . Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S.

11

319, 332 (1976). Due process “is not a technical conception with fixed content

unrelated to time, place[,] and circumstances.” Id. at 334 (internal quotation marks

and citation omitted). Its “fundamental requirement . . . is the opportunity to be

heard at a meaningful time and in a meaningful manner.” Jd. at 333 (internal

quotation marks and citation omitted).

In the “context of a statutory scheme that involves compulsory arbitration,

due process does not guarantee any particular form of state procedure.” Lyeth v.

Chrysler Corp., 929 F.2d 891, 895 (2d Cir. 1991). Instead, “a state may choose the

remedy best adapted, in the legislative judgment, to protect the interests concerned

provided its choice is not unreasonable or arbitrary, and the procedure it adopts

satisfies the constitutional requirements of reasonable notice and opportunity to be

heard.” Jd. (internal quotation marks and citations omitted). Under this

framework, courts that have considered compulsory arbitration provisions in New

York statutes that apply to the private sector have upheld those provisions against

procedural due process challenges. See id. at 895-96 (holding that the compulsory

arbitration provision in New York’s Lemon Law did not violate the Fourteenth

Amendment’s Due Process Clause); Country-Wide Ins. Co. v. Harnett, 426 F. Supp.

1030, 1033-34 (S.D.N.Y. 1977) (upholding compulsory, binding arbitration provision

in New York’s no-fault law against a due process challenge), aff'd, 431 U.S. 934

(1977).

The FLFLPA provides for compulsory impasse arbitration under certain

circumstances, at a particular stage in the collective-bargaining process. The Court

12

will assume, for purposes of this motion, that the challenged provision implicates a

liberty or property interest that belongs to Plaintiffs. Even so, the state legislature

was not required to provide any particular form of procedure. Addressing a discrete

segment of the private sector that has been excepted from the NLRA, the legislature

determined that prohibiting farmworkers from striking was important, and that

some substitute was necessary to break any impasse in collective bargaining. The

legislature selected compulsory impasse arbitration. In doing so, it provided for a

multi-step procedure with abundant process to accompany any potential

“deprivation.” See SERA §§ 702-b(1), (8).

For these reasons, Plaintiffs have not demonstrated that they are likely to

succeed on the merits of their procedural due process claim regarding compulsory

impasse arbitration.

C. Equal protection challenge to compulsory impasse

arbitration

In “areas of social and economic policy, a statutory classification that neither

proceeds along suspect lines nor infringes fundamental constitutional rights must

be upheld against [an] equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis for the classification.”

F.C.C. v. Beach Commce'ns, Inc., 508 U.S. 807, 313 (1993). This standard reflects

that the Equal Protection Clause “is not a license for courts to judge the wisdom,

fairness, or logic of legislative choices.” Id.; see also Sensational Smiles, LLC v.

Mullen, 793 F.3d 281, 284 (2015). On review, such statutory classifications “bear[] a

13

strong presumption of validity.” Beach Commce’ns, 508 U.S. at 314. A party

challenging such a classification must “negat[e] every conceivable basis [that] might

support it.” Id. at 315 (internal quotation marks and citation omitted).

Rational-basis review applies to Plaintiffs’ challenge to the legislature’s

decision to differentiate between farm employers and workers, on the one hand, and

other segments of the private sector, on the other hand, and to impose a combined

no-strike/compulsory impasse arbitration scheme to resolve labor disputes under

certain circumstances.

A rational basis for the classification exists. In sum, the legislature deemed

strikes unworkable in the agricultural industry because of the potential harm they

could cause due to the seasonal nature of the business. The legislature was able to

legislate and prohibit strikes here because the NLRA carves out farmworkers from

its purview. To mitigate the impact of a no-strike provision on farmworkers’

collective bargaining rights, the legislature elected to implement compulsory

impasse arbitration under certain circumstances—e.g., if voluntary agreement is

not reached and mediation fails.

For these reasons, Plaintiffs are not likely to succeed on the merits of their

equal protection claim.

4 Plaintiffs have not sufficiently demonstrated that this classification requires a

higher level of scrutiny.

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V. Irreparable Harm

Before obtaining a preliminary injunction, Plaintiffs must demonstrate that

they will experience irreparable harm absent the injunction. They have done so

regarding their First Amendment claim. In particular, “[w]here a plaintiff alleges

injury from a rule or regulation that directly limits speech, the irreparable nature of

the harm may be presumed.” Bronx Household of Faith, 331 F.3d at 349. Because

Plaintiffs are likely to succeed on the merits of their claim that SERA § 704-b(2)(c)

constitutes impermissible viewpoint discrimination, the Court presumes irreparable

harm to Plaintiffs absent an injunction on that provision.

But Plaintiffs have not demonstrated irreparable harm regarding their

remaining claims. As to preemption and recalling H-2A workers, the possibility of

harm is too remote at this time. Plaintiffs’ argument is based on a term ina

proposed collective-bargaining agreement—not on any specific provision in the

statute. Several steps remain in the statutory process before Plaintiffs would be

subject to the proposed term regarding H-2A workers—if they ever will be. In sum,

there is no irreparable harm currently facing Plaintiffs regarding their purportedly

conflicting obligations related to H-2A workers. As such, the Court need not

address the preemption argument further at this time.

Nor have Plaintiffs demonstrated irreparable harm absent an injunction

regarding any remaining claims.

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VI. Public Interest

A preliminary injunction regarding the enforcement of SERA § 704-b(2)(c) is

in the public interest. That provision of the statute, as written, constitutes

impermissible viewpoint discrimination and chills employers’ speech. A

preliminary injunction on this provision does not affect the remainder of the statute

and, therefore, has a minimal impact on farmworkers’ collective-bargaining rights.

Under these circumstances, a preliminary injunction on this narrow issue, fostering

freedom of speech, is in the public interest.

VII. Bond

Federal Rule of Civil Procedure 65(c) instructs the Court to consider whether

it should require Plaintiffs to post security and, if so, in what amount. See Dr.’s

Assocs., Inc. v. Distajo, 107 F.3d 126, 136 (2d Cir. 1997) (“Rule 65(c) gives the

district court wide discretion to set the amount of a bond, and even to dispense with

the bond requirement [in certain situations].”).

Defendants did not request a bond. Under the circumstances here, the Court

will not require Plaintiffs to post security. See Dr.’s Assocs., 107 F.3d at 135-36

(affirming district court’s decision not to require security where the district court

concluded that enjoined party would not suffer damage or loss’).

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CONCLUSION

For the above reasons—and for those stated on the record at today’s

preliminary injunction hearing—the Court GRANTS Plaintiffs’ PI motion (Dkt. 2),

in part, as to their facial First Amendment challenge to SERA § 704-b(2)(c), and

DENIES the balance of their PI motion. No bond is required.

Defendants are hereby enjoined from enforcing SERA § 704-b(2)(c), which

provides: “It shall be an unfair labor practice for an agricultural employer to: . . .

discourage union organization or to discourage an employee from participating in a

union organizing drive, engaging in protected concerted activity, or otherwise

exercising the rights guaranteed under this article.” This preliminary injunction

shall remain in effect pending disposition of the case on the merits.

SO ORDERED.

Dated: February 21, 2024 □

Buffalo, New York / ee □ >

JOHN L.SINATRA,JR. OO

UNITED STATES DISTRICT JUDGE

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