March 23, 2021

Atlanta      Listening to the public radio station reports in this age of Zoom and teleconferenced US Supreme Court hearings was a horrifying and disconcerting experience as some of the Justices weighed in on the arguments around access for union organizers in California to meet with farm workers in the growers’ fields. It’s one thing to read summaries by Supreme Court reporters and observers when they put their fingers in the wind and try to guess where the court might be leaning in making a decision. It’s quite another to actually hear their voices asking questions, seemingly from outer space, as they try to understand either how unions work or how farm workers in California make their living. On all sides, right and left, they seemed to just not get it.

The case before them is essentially a do-over by California growers, this time in strawberry fields, trying to undue the provisions in the nation’s only labor relations act for agricultural workers. The act provides extremely limited, infrequent access to union representatives, invariably the United Farm Workers Union (UFW), to meet with workers for one hour before and after work and during their lunch break. The Supreme Court has previously upheld this access, but the growers are taking another bite at the case by arguing this time that it is a “taking”, and therefore unconstitutional because they are not being compensated for the access. Since no worktime is being lost, they are trying to hang their grievance on some alleged loss of income and rights when an organizer has their boots in a grower’s dirt.

The roots of this conflict are more clearly traced to the South than to California. The passage of the National Labor Relations Act in 1935, more than eighty-five years ago at this point, was based on making deals with Congressional representatives in the South who insisted that the largely Black populations they still depended on for domestic and farm labor be excluded from coverage by the Act, and therefore any direct path to unionization. Put these exclusions form the NLRA and the Fair Labor Standards Act, passed in 1938, denying them minimum wage protection three years later, firmly in the column of Jim Crow and the battle still lingering in the South from slavery, the Civil War, and Reconstruction grievances.

Only in very exceptional circumstances do union organizers have rights to access an employer’s property under the rulings of the NLRB, and that’s more usually as a remedy for egregious violations of the Act. Unions always have the right to access workers before and after work without any time limit, and to access workers during unpaid time on lunch and other breaks, if and when workers are not on company property. Many workers are not restricted to remaining on company property during lunch or other breaks under the FLSA. Regardless of whether they are or not, workers themselves can conduct union business and engage in union activities in company and commonly accessible employee areas, like cafeterias and break rooms, without restraint or interference by employers.

In the yahoo-like remarks by Justices “looking for a principle,” none seemed to dig deep enough to the discrimination against farm workers in the NLRA or to demand that employers accommodate workers in leaving the fields during their lunch breaks to meet union representatives. The California statute was already a compromise that recognized the unusual isolation of farm workers, an effort to not interfere with their work itself, and a dilution of the access in other cases that would have been available under the NLRA. The real “taking” here is the attempt to take away California farm workers’ rights to organize which are uniquely theirs. The Justices ensconced in privilege, courtrooms, and robes, need to buy a clue about what work and collective action is like in the fields.