# New York State Vegetable Growers Association Inc. v. James

> District Court, W.D. New York · February 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10366954

## Case

- **Court:** District Court, W.D. New York
- **Decided:** February 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10366954

## How later opinions describe it (automated extraction)

- affirming district court’s decision not to require security where the district court concluded that enjoined party would not suffer damage or loss’
- holding that the compulsory arbitration provision in New York’s Lemon Law did not violate the Fourteenth Amendment’s Due Process Clause

## Opinion text

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.
14

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.

15

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’).

16

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

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366954. Public record. Not legal advice.