WISCONSINâ€”The union campaign at Palermoâ€™s Pizza in Milwaukee.â€”which offers a test case in integrating labor, immigrant and community-based organizingâ€”was dealt a painful blow last week by the regional National Labor Relations Board. The NLRB told both sides it would not find the companyâ€™s mass firing of immigrant strikers to be illegal, would not protect other strikers from being â€śpermanently replaced,â€ť and would not order the company to enter collective bargaining.
â€śThe Labor Board, it wasnâ€™t very favorable to our cause,â€ť Palermoâ€™s striker Raul de la TorreÂ tells Working in These TimesÂ in Spanish. â€śThere was ample evidence to show that the company violated the rights of a majority of workers.â€ť
The decision was announced by labor and management on November 21 and is expected to be issued in writingÂ by the NLRB this week. Organizers celebrated some portions of the NLRB’s decision, including an expected complaint (similar to an indictment) against Palermoâ€™s on other counts of union-busting, including nine other firings. But they pledged to appeal the NLRB’s choice not to pursue the mass termination–a significant legal setback for immigrant worker organizing–and not to require the company to negotiate.
Voces de La Frontera, a low-wage workers’ center and immigrant rights group, has been organizing Palermoâ€™s workers around issues like staffing and wages since 2008 and has helped spur a nationwideÂ boycottÂ of Palermo’s products.Â Voces Executive Director Christine Neumann-Ortiz said the NLRBâ€™s validation of some of the charges against Palermoâ€™s offered â€śvery good affirmation for the boycott.â€ť
But Neumann-OrtizÂ called the decision not to prosecute the mass firings â€śa travesty of justice in terms of immigrant worker rights” that shows how immigration laws are being applied in a way that â€śis undermining federally protected rights for all workers.â€ť She said workers and their supporters â€śfully intend on getting that decision overturned both in the streets and in the legal system.â€ť
In an emailed statement, Palermoâ€™s President Giacomo Fallucca wrote, â€śWe are proud that the NLRB decision confirms that we complied with the applicable laws. Voces de la Frontera should be embarrassed that its blatantly false claims have been rejected so soundly.â€ť Dismissing the NLRB’s remaining charges as â€śminor technicalities,â€ť Fallucca described the decision as â€śa major victory for Palermoâ€™s and our workersâ€ť and urged Voces to â€śget out of the wayâ€ť of an NLRB election.
Richard Saks, an attorney for the Palermoâ€™s Workers Union, said it was â€śsignificant that the NLRB found Palermoâ€™s guilty of a wide range of various serious violations of federal labor law, including retaliation and surveiling and interfering with employee rights to support the union and engage in protected activities.â€ť But he said the union was â€śdisappointedâ€ť that the regional NLRB had not found the firing of 75 strikers to be against the law.
As Iâ€™ve previouslyÂ reportedÂ for Working in These Times, Palermoâ€™s workers began actively pursuing unionization in the spring with support from Voces, the AFL-CIO and the United Steelworkers (USW) union (an AFL-CIO affiliate). In May, three-quarters of production workers signed a petition seeking recognition as the Palermo’s Workers Union. By law, companies can choose to recognize a union based on such a demonstration of majority support. Or they can then be forced to recognize a union if workers win an NLRB-supervised election.
Palermoâ€™s refused to recognize the union, and the same day, workers were told that they had 28 days (soon reduced to 10) to prove that their immigration status authorized them to work in the United States.
In response, workers submitted a petition to the NLRB seeking a union election. Many also went on strike. Federal Immigration and Customs Enforcement, in what appears to be the first application of an agreement with the Department of Labor designed to avoid manipulation of ICE for union-busting, announced on June 7 that it was suspending immigration enforcement at Palermoâ€™s. But the next day, Palermoâ€™s fired 75 striking workers. Management called this legal compliance; organizers called it obvious union-busting.
The workers have now been on strike for almost six months. The union election has been repeatedly delayed, both by successive union-busting allegations filed by Voces and, before that, by a petition from a rival union, the United Food & Commercial Workers, to appear as an alternative to the Palermo Workers Union (the PWU is expected to affiliate with the USW). Because of the gravity of the union-busting allegations, the change in the make-up of the potential pool of voters (as strikers are replaced by new hires), and the wide margin by which workers originally petitioned management, USW and Voces began arguing that a fair election was no longer possible, and that the NLRB should issue a bargaining order requiring Palermoâ€™s to proceed directly to negotiations with the PWU instead. Such orders are rare.
The NLRB strategy carried risks from the beginning. Because of the opportunities they provide employers to intimidate workers, and because of the limited leverage they offer to compel employers to actually negotiate in good faith, some major unions have essentially abandoned NLRB elections, opting instead for â€ścomprehensive campaignsâ€ť to pressure employers to voluntarily grant union recognition based on a showing of majority support.
Interviewed in September, AFL-CIO Director of Immigration and Community Action Ana AvendaĂ±o described the Palermoâ€™s struggle as an example where filing for an NLRB election might be serving an important purpose, because it provided a formal demonstration to ICE that the workers were actively organizing, thus securing the suspension of enforcement. AvendaĂ±o said that could make the NLRB filing worthwhile, despite the risks, and even if actual union recognition was won through a voluntary agreement reached because of the strike and the comprehensive campaign.
But the ICE letter didnâ€™t stop Palermoâ€™s from firing 75 workers, and the regional NLRB is not planning to prosecute those terminations. According to Saks, the NLRB â€śis essentially saying that the company would have acted that [same] way absent the strike and absent the unionization effort.â€ť He added that because the NLRB was not finding the mass firing to be illegal, it also would not consider the strike to be an â€śUnfair Labor Practicesâ€ť strike, and thus Palermoâ€™s could legally â€śpermanently replaceâ€ť those strikers who havenâ€™t been fired.
Saks said that the NLRBâ€™s choice not to issue a bargaining order means that â€śthere will probably have to be an election at some point for union recognition.â€ť He said the Board has not indicated how quickly that could happen. If the regional NLRBâ€™s decision stands, it could wait to schedule an election until after reaching resolution on all the charges it is proceeding with against Palermoâ€™s.
That leaves union activists hoping for one of three results: Getting the regional NLRBâ€™s decision changed on appeal; winning a majority of the current voter pool in an NLRB election; or winning union recognition and the reinstatement of the fired workers directly from Palermoâ€™s through its comprehensive campaign. â€śAll of those options are still on the table,â€ť said Neumann-Ortiz. She said that while the favorable aspects of the NLRBâ€™s decision provide validation for the workersâ€™ allegations, the disappointing ones demonstrate â€śthe importance of continued public support for these workers to have justice prevail.â€ť
So far, the comprehensive campaignâ€™s main lever has been a consumer boycott of Palermoâ€™s pizzas, including pressure on Costco, the chain where the majority of Palermoâ€™s product is sold. Organizers credit behind-the-scenes pressure from Costcoâ€”which benefits from a progressive reputation as an â€śanti-Walmartâ€ťâ€”for spurring Palermoâ€™s to seek a meeting with AFL-CIO President Richard Trumka in September. This month, De la Torre and other Palermoâ€™s workers made a national tour, demonstrating at several Costco locations before arriving at headquarters in Washington state, where they met with officials from the company.
De la Torre described the meeting as â€śvery positiveâ€ť and said the Costco representatives â€śwere surprised to hear what Palermoâ€™s has done to the workers.â€ť At the end of the meeting, said De la Torre, a Costco official â€śmade the comment that if the charges that we made against the company were validated [by the NLRB], they could buy their pizza from any other company.â€ť
The campaign has also targeted universities, including the campuses of the University of Wisconsin. UW-Madison undergraduate Allie Gardner said the boycott is â€śabsolutely a student issue, because weâ€™re on campus and weâ€™re the ones who are paying tuition to go to this school that is then creating contracts with corporations that arenâ€™t honoring the labor policies that weâ€™ve created as an institution.â€ť Gardner is a board member of the United States Students Association and of the statewide UW student council, both of which have passed resolutions calling on universities to support the boycott. The licensing committee at UW-Madison has unanimously called for the university to end its Palermoâ€™s contract; students are pressing the universityâ€™s chancellor to honor that recommendation. The UW-Milwaukee student senate recently voted to endorse a boycott as well.
Last month, in an AFL-CIO report and legislative testimony by workers, the campaign also questioned state subsidies provided to Palermoâ€™s.
Â â€śWith the progress of the strike and the boycott so far, I feel happy,â€ť said De la Torre. â€śBut Iâ€™m not yet satisfied.â€ť
Full disclosure: The United Steelworkers is anÂ In These TimesÂ sponsor.
This post was originally posted on Working In These Times on November 28, 2012. Reprinted with Permission.
About the Author: Josh Eidelson is a freelance writer and a contributor at In These Times, The American Prospect, Dissent, and Alternet.Â After receiving his MA in Political Science, he worked as a union organizer for five years.Â His website is http://www.josheidelson.com. Twitter: @josheidelson E-mail: “jeidelson” at “gmail” dot com.