In Milwaukee, Immigration Compliance or Union Busting?

News Updates

A labor dispute that has lasted for three months in Milwaukee pits union organizers against a company that fired workers who were seeking to organize, including employees who failed to document that they were eligible to work.

Palermo’s Pizza said it was merely complying with immigration laws. Activists for the workers have organized a strike and boycott against the company, saying that the terminations amounted to unlawful union busting.

Worker Concerns

Employers walk a fine line between complying with immigration law and labor rights, Christine Neumann-Ortiz, executive director of Voces de la Frontera in Milwaukee, told SHRM Online.

At the frozen pizza manufacturer, organizing efforts went back as far as 2008, she said, with safety concerns being one of the main reasons workers mobilized.

A press release from Voces de la Frontera quoted one injured Palermo’s worker on strike as saying, “In my three years at Palermo’s, I’ve seen workers operate heavy, dangerous machinery with little or no training. Some machines lack sufficient safety protections. One day, my sleeve got caught in the machine, sliced open my pinky and I almost lost two other fingers. When accidents happen, Palermo’s always blames the worker. Through a union, we can stop unnecessary injuries.”

The production line speed often was allegedly too fast. When concerns about faulty equipment were raised with managers, no action was taken until there was a serious accident, Neumann-Ortiz added.

Safety issues weren’t employees’ only concern. In 2010, workers protested a move to replace regular employees with temps. Workers “successfully pushed back” against this strategy, she said.

Employees’ most recent concerns were about how the company handled its reverification process of the workforce in response to enforcement action by U.S. Immigration and Customs Enforcement (ICE), as well as discrimination issues around wages, she noted.

“There was differential treatment for Latino workers, and issues about respect on the job,” Neumann-Ortiz remarked.

Union Petition and Strike

On May 29, 2012, Palermo’s workers delivered a petition signed by three-fourths of the staff, asking for union recognition.

The company declined to recognize the union and started bringing in more temps. On June 1, 2012, production employees went on strike.

On June 7, 2012, ICE Deputy Chief Counsel John Gountanis wrote a Palermo’s attorney to inform him that “at this time, ICE will stay further action regarding its notice of suspect documents.”

“ICE did not want to be used as a tool to undermine bargaining rights,” Neumann-Ortiz said.

Despite this letter, the company the next day fired nearly half of the production workers—up to 90 employees, she said. All 90 were on strike, and 75 were on the suspect documents list.

Palermo’s Pizza did not respond to requests for comment, but on the company blog it stated, “Palermo’s was contacted by ICE and asked to submit employee I-9 forms for an audit. We complied with their request as we would with any state or federal agency. After its review, ICE alerted us to the fact that some of our employees needed to revalidate the information they provided us when they were hired.”

The company initially gave the workers on the suspect documents list 28 days after May 29, 2012, to provide documents showing that they were eligible to work, but sped that up to 10 days, Neumann-Ortiz asserted.

“The spin the company is putting on it is that they’ve complied with ICE. But not just workers [who were] part of the ICE audit were terminated. It also terminated those not part of the ICE audit,” she remarked.

Since the terminations, the strike has grown into a national boycott of Palermo’s, a boycott that the AFL-CIO joined on Aug. 9, 2012. AFL-CIO President Richard Trumka wrote a letter to Costco asking it to audit Palermo’s to investigate the company’s compliance with Costco’s labor rights’ standards.

“We stand proudly with Palermo workers in their struggle to build a better life for themselves and their families,” he said. “They continue to inspire working families everywhere in using their collective power to stand up to corporate intimidation tactics.”

Trumka noted that the Palermo’s workers await a decision by the National Labor Relations Board (NLRB) on whether there was an unfair labor practice. In the meantime, a union election has been postponed pending the outcome of the board’s decision.

Caught in the Crossfire

In its blog post, Palermo’s stated that activists “have been publicly accusing the company of unfair labor practices; a stunning deception that is false on every level. Especially egregious is their allegation that Palermo’s took retaliatory action against employees attempting to organize. At no time in the company’s history have complaints of this nature been voiced, and we are proud of the family atmosphere we’ve been able to create—largely due to our talented and loyal employees.”

“Companies are obligated to comply with all laws, but they sometimes may be caught in the crossfire of apparently conflicting legal requirements and enforcement regimes,” said Ronald Meisburg, a former board member and NLRB general counsel who now works for Proskauer in Washington, D.C.

There may be some situations where government agency enforcement policies may conflict, and other situations where one agency may adjust its enforcement policy to accommodate another agency. “Don’t try to outguess the government. HR should try to comply with the law as it normally would,” he stated.

In addition, Meisburg remarked that the Obama administration “has shown a willingness to adjust enforcement policy under the immigration laws in light of other interests,” such as in the deferred action for immigrant child arrivals.

John Raudabaugh, a former board member, added, “That ICE would defer pursuing enforcement is particularly interesting and troubling. If ICE had launched an investigation—rather than sending a general notice—it would appear very political and troubling that it would suspend its efforts pending the outcome of a union-organizing campaign and election.”

Neumann-Ortiz told SHRM Online she expects the NLRB decision on the unfair labor practices charge against Palermo’s sometime after Labor Day.

Allen Smith, J.D., is manager, workplace law content, for SHRM.  To read the original article, please click here.