By: Sid Salter
Despite the fact that Mississippi has not been particularly fertile ground for labor unions seeking new members from new employment sectors, the attention of American farmers, growers, and other food producers will watch an upcoming case before the U.S. Supreme Court with rapt attention.
The case before the high court is styled Cedar Point Nursery and Fowler Packing Company, Inc., versus Victoria Hassid, in her capacity as chair of the California Agricultural Relations Board.
According to the high court, state law in California “forces agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The regulation provides no mechanism for compensation (to those farmers and growers).”
California argues in the lower courts that the law is decades old, grants union organizers temporary access to the farms during non-working hours to communicate with farm workers about their rights to unionize.
But attorneys for the two petitioner growers argue that the rule is a “government-authorized physical invasion of private property.” Joshua Thompson, a senior attorney for the Pacific Legal Foundation, was blunter in his assessment when speaking to the Los Angeles Times last week: “The Constitution forbids government from requiring you to allow unwanted strangers onto your property. And union activists are no exception.”
The question before the Supreme Court is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking (of their property) under the Fifth Amendment. At issue is also the property owner’s “right to exclude.”
From a broader standpoint, the case will examine what amounts to a special pass granted to organized labor to enter private property against the will of the property owner. Pro-union voices say the case could foster discrimination against organized labor and in the case of California migrant workers could also disproportionately impact these workers who find it difficult to communicate about labor issues other than through face-to-face meetings.
Another reason that this case will gain widespread national attention is that it represents a major decision of the 6-3 conservative majority on the Supreme Court after former President Donald Trump’s appointment of conservative Justice Amy Coney Barrett to succeed the late liberal Justice Ruth Bader Ginsberg.
Trump’s appointment led to a serious discussion of “packing the court” by disgruntled liberals on Capitol Hill. With Democrats now in control of Congress and the White House, the outcome of this case could well spur additional discussions of that rather dubious scheme.
As we have seen in past Mississippi disputes over eminent domain, no group is stronger and more influential regarding property rights cases than the state’s farmers, ranchers, and timber growers.
Mississippi remains a “right to work” state in which some 86,000 of the state’s 1.034 million workers (or only about 8.3 percent of the state’s workforce) is represented by organized labor. That trails the national average as do most “right to work” states.
Nationally the unions have been steadily declining for the last 40 years, based on Bureau of Labor Statistics data, 14.3 million or 10.8 percent of U.S. employees were in unions last year. That is just over half of the 20.1 percent in 1983, when there were 17.7 million employed, waged, and salaried workers in unions.
Like mosquitos in the summertime, organized labor is desperate to find new dues-paying members to support the unions and to maintain their political relevance.
In Mississippi, frequent efforts to unionize Mississippi’s foreign automaking plants have met with substantial setbacks despite providing national headlines for politicians like U.S. Sen. Bernie Sanders who sought to couch the pro-union organizing efforts as “civil rights” activities.
Rarely is a Supreme Court case brought by humble farmers, growers and packers at center stage in American politics. But this case represents a uniquely compelling set of issues capable of doing just that.