Palermo Pizza, which supplies pizzas to some of the nation’s largest retailers such as Costco has found itself in a bitter dispute with an ongoing I-9 investigation and a battle with workers who are trying to form a union. In May 2012, Palermo received a petition from workers that they wanted to form a union. Meanwhile, ICE was doing an I-9 audit of the company. After a month, ICE sent Palermo a notice claiming that 89 workers needed to reverify their work authorization documents. Palermo agreed and sent out a notification to those workers and gave them 28 days to comply. Only ten days later, 75 employees were fire.
The NLRB declared that “Palermo’s conduct constituted Unfair Labor Practices (i.e.: union-busting activities) by prematurely firing those workers.” Immigration attorneys commented that this case is interesting because it is the first time when ICE has stayed an investigation. It shows the interchange between the collective bargaining unit and the ICE enforcement. There is a memorandum that exists between the U.S. Department of Labor and ICE that indicates ICE has a duty to enforce action such as I-9 inspection, but not during an ongoing labor dispute.
The effects of this case are unclear so far. It might not be very beneficial for an ICE stay of enforcement. An issuance of a notice of suspect documents is usually the last step of an ICE audit. Furthermore, because this document tells employers the people who are no longer considered authorized to work, it puts employers in a difficult situation because they have been possibly given a "sufficient notice" Under the law.
Unions are fighting back against this case especially because many fear that the firing of employees is an intimidation tactic being used by Palermo to prevent the unionizing. “Part of the labor union’s request is for the employer to reinstate the fired workers.” The problem lies with the fact that neither the union nor the NLRB has the legal authority to force the employers to comply and rehire the terminated workers.
According to some immigration analysts, while regular employees who are fired due to union activities would be entitled to reinstatement with back pay, these employees are in a different situation if they are undocumented. Undocumented workers are not entitled to anything so the NLRB would only be able to fine the employers. To continue with struggles within the labor dispute, the NLRB cannot truly determine in a fair election over whether or not to unionize because a large number of employees who would vote have been fired. Most likely this will result in Palermo Pizza being mandated to negotiation with the union for a collective bargaining agreement. This may be no more than a slap on the wrist for Palermo Pizza because the worst that could result is them being forced to allow their employees to unionize.
Employers who have relations with unions in their workplace should seek legal counsel in order to avoid labor disputes. Many regular audits may create issues that arise the questioning of legal work status of employees. In order to be informed of the risks associated with unions and the NLRB, it is important to find a lawyer knowledgeable in both immigration and labor laws. If you have further questions, contact us at 314-961-8200 To discuss your particular situation.