There's a lawsuit now in New York that could expand the rights of farm workers. Under state law, farm workers aren't allowed to bargain collectively, but the New York State Constitution may say something different.
The part of the New York State Constitution that matters is Article 1, Section 17. Here's the relevant portion:
Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.
Aadhithi Padmanabhan of the New York Civil Liberties Union called the text crystal clear.
"It says 'employees,'" she said. "It doesn't say 'some employees' or 'employees except farmworkers.'"
The trouble is, the state employee relations law is what New York is using in practice. It precedes the constitutional language and it does exclude farm workers.
So, the New York Civil Liberties Union is suing the state on behalf of a former farm worker and two labor groups.
The 1938 Con Con
This part of the state constitution dates back to 1938, when New York held a constitutional convention (or “Con Con.”
Attorney Christopher Bopst has co-written and co-edited books on the state constitution. He said the delegates in 1938 were really concerned with protecting collective bargaining in general.
"So by putting it in the state Constitution, they wanted to really isolate it from potential attack by either a subsequent legislature or by a New York Court of Appeals." (The Court of Appeals is New York's highest court.)
Bopst said at the '38 convention, there wasn't discussion about including or excluding farm workers specifically. So the drafters' intent is up to interpretation.
"Lawyers on both sides can look at the record, draw what inferences they want from the failure of the constitutional provision to specifically define 'employees,'" he said.
There are other arguments that challenge the viability of the state law. NYCLU's Padmanabhan said the reason state law excludes farm workers is because it mirrors federal labor law. Federal labor law passed during the New Deal in the 1930s.
"President Roosevelt, when he was passing the New Deal legislation, which included the federal labor relations law, he needed the support of Southern Democrats to pass all of that legislation," Padmanabhan explained.
She said Southern Democrats in the 1930s wanted to exclude African American farm and domestic workers from collective bargaining. In short, Jim Crow racism.
Gov. Andrew Cuomo and Attorney General Eric Schneiderman chose not to defend the law against the suit. They agree with the plaintiffs, that it's unconstitutional.
The New York State Farm Bureau, a trade group for farmers, then got permission to defend the employee relations law.
Last month, attorney Brian Butler argued a motion to dismiss the suit. He said there are bills in the legislature that deal with this.
"Our argument was that this is a legislative matter and we have to allow that process to play out," he said. "It's not up to the court to get involved in determining this significant policy issue."
A policy change is what Jose Garcia of Syracuse is looking for. He's originally from Mexico and worked at a dairy farm in the North Country.
"The demand doesn't deal with forming unions necessarily but instead supporting each other as workers and bosses," he said. "To make better working conditions, and, with that, you avoid many accidents."
Garcia may have to wait a while for a decision. Any ruling in lower court is likely to get an appeal.