A Wolf left his lair one evening in fine spirits and an excellent appetite. As he ran, the setting sun cast his shadow far out on the ground, and it looked as if the wolf were a hundred times bigger than he really was.
“Why,” exclaimed the Wolf proudly, “see how big I am! Fancy me running away from a puny Lion! I’ll show him who is fit to be king, he or I.”
Just then an immense shadow blotted him out entirely, and the next instant a Lion struck him down with a single blow.
– Aesop’s Fables
Pretending to be something you are not has dire consequences.
It’s a lesson that Tyson Foods Inc. is learning the hard way.
Back in 2020 in response to the novel Coronavirus, the Trump administration, working secretly hand-in-glove with Big Meat, schemed to keep meat packer plants open with little regard for the safety of employees.
The back-room conversations between Big Meat and USDA were in response to the April 2020 temporary shutdown of Smithfield Foods’ Sioux Falls, South Dakota, facility where hundreds of workers were COVID-19 positive.
In the span of eight days following the shutdown:
- Smithfield CEO Ken Sullivan contacted the president and CEO of Tyson Noel White suggesting the president should issue an executive order to keep meat plants open.
- Sullivan made an email pitch to National Beef, JBS and Cargill: “Positive cases, fear-driven absenteeism, and disincentives to work are threatening the country’s protein supply.” Sullivan called for “a Presidential Executive order invoking the Defense Production Act as a mechanism to manage public perception and state/local interdiction.”
- Tyson Foods and Smithfield Foods sent the feds what they wanted, including specific language for the executive order.
- On April 28 – a week and a day after the Sioux Falls shutdown, POTUS signed the executive order:
“Under the delegation of authority provided in this order, the Secretary of Agriculture shall take all appropriate action under that section to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.”
The executive order by and large kept meat packer plants operational despite the avoidable loss of life to COVID. Investigate Midwest reports since April 2020 there have been at least 423 meat plant worker deaths spanning 67 plants in more than half the states in the nation. In all, there have been more than 86,000 reported meat worker cases of COVID-19.
Not surprising, it wasn’t long before survivors and families of deceased workers began to sue Tyson in state courts. In Buljic v. Tyson Foods, Inc., Hus Buljic said Tyson knowingly lied to workers resulting in five deaths and more than 1,000 COVID infections. For its part, Tyson wanted no part of a state jury trial and moved to relocate the trial to federal courts because the presidential executive order meant Tyson was acting “at the direction of a federal officer.” Tyson claims that because former President Donald Trump declared meatpacking plants critical infrastructure during the COVID pandemic, Big Meat could invoke the Federal Officer Removal Statute, which would shut out the filing of COVID wrongful death cases in state courts.
But Tyson hasn’t had any success in making its case in either district or appellate courts that the executive order protected it from worker liability lawsuits filed in state courts.
Last December, the U.S. Court of Appeals for the Eighth Circuit ruled Tyson was, in fact, not acting at the direction of a federal officer.
“Tyson argues that from the earliest days of the pandemic, the federal government enlisted it to fulfill a basic governmental task — ensuring that the national food supply would not be interrupted — and thus Tyson was acting under federal direction while operating its Waterloo facility in March and April 2020…The record, however, tells a different story. For one, Tyson conflates the federal government’s designation of the ‘food and agriculture’ sector as critical infrastructure with a finding that Tyson was fulfilling a basic governmental task. In arguing that its work constituted such a task, Tyson cites a 2013 Presidential Policy Directive, which identified sixteen critical infrastructure sectors (including food and agriculture), delegated regulatory authority over those sectors to specific agencies, and stated that critical infrastructure security and resilience are shared responsibilities among various private entities and the federal government.
“Tyson points out that the federal government invoked this critical infrastructure framework to respond to the COVID–19 pandemic in March and April 2020. Relevant here, the President’s Coronavirus Guidelines described the ‘special responsibility’ of critical infrastructure workers to maintain normal schedules, and CISA included ‘meat processing’ employees on the list of suggested critical infrastructure workers that it sent to state and local officials. But the fact that an industry is considered critical does not necessarily mean that every entity within it fulfills a basic governmental task or that workers within that industry are acting under the direction of federal officers.”
And for good measure the U.S. Court of Appeals for the Fifth Circuit issued similar decisions in a pair of cases – Glenn v. Tyson Foods, and Chavez v. Tyson Foods.
Now Tyson is asking the Supreme Court to save its bacon. Tyson’s July 22 writ of certiorari is asking the justices to overturn the Eighth Circuit Decision:
“The issue here is profoundly important. In the midst of a national crisis, the federal government demanded the assistance of companies like Tyson to maintain the food supply. When state and local regulations began to interfere with that national imperative, the President issued an Executive Order exhorting continued operations in conformity with federal guidance, despite contrary state and local direction. If companies like Tyson now face liability in state court based on the retroactive imposition of state law requirements that would have frustrated federal objectives, the promise of the Executive Order and the informal directions that preceded it will have proven illusory. And the incentives for the next crisis will be perverse.”
Well. Interference is in the eye of the beholder. State health departments’ primary concern was for the safety of meat processing employees. Tyson’s primary concern was to keep the lines running at all costs.
Plant closure, even temporarily, amounted to interference. And Tyson shouldn’t be allowed to create alternative facts to pretend it was acting at the direction of a federal officer to avoid state jury trials.
Hey, Supreme Court, tell Tyson that pretending something you’re not has dire consequences. Deny the writ of certiorari.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at email@example.com.