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PrintA Brooklyn-based kosher food company had no reason to believe most of the 15 workers it fired in 2008 were in the country illegally, the National Labor Relations Board has ruled, rejecting the employer's argument that it should not have to pay them more than $230,000 in back wages.
In a decision handed down last week, the board ruled that Williamsburg, Brooklyn's Flaum Appetizing Corp. was on a “fishing expedition” in the case of 11 of the 15 workers, who were illegally terminated for organizing, and that it could no longer claim that the workers were undocumented. The company can still make that argument to avoid paying four of the workers, but it will lose the right if it fails to produce sufficient evidence within two weeks of the ruling.
Flaum is challenging a 2009 ruling by the National Labor Relations Board that it unlawfully fired workers a year earlier who had organized to fight for overtime pay, arguing that it should not have to provide back pay because the employees were undocumented. A separate federal lawsuit seeks hundreds of thousands of dollars for unpaid minimum wage and overtime.
“The labor board's decision is an important step toward ensuring that Flaum and companies like it will not escape accountability through unfounded and discriminatory inquiries into immigration status,” said Daniel Gross, executive director of Brandworkers, a nonprofit that helped to organize the workers.
Flaum had been banking on a 2002 Supreme Court decision in Hoffman Plastics Compound v. National Labor Relations Board in which the court found the company did not have to give back pay to a worker who was fired for participating in a union drive because he was undocumented.
But in a 2-to-1 ruling, the board decided that permitting Flaum to maintain its “defense based on immigration status in the complete absence of any articulable reason to believe” the workers were not authorized to work would run counter to both immigration and labor laws.
If employers were allowed to argue without any basis that workers were undocumented, “in every case in which the board has found the employees' rights have been violated, in order to obtain any remedy for the injuries suffered, the employees would potentially be subject to what is often an embarrassing and frightening inquiry into their immigration status.”
Flaum owner Morris Grunhut said in an interview that he was still in the process of collecting documentation on the workers and that he expected the case to be dismissed shortly. “There's no case,” he said.
But labor board officials said Mr. Grunhut's opportunity to produce documentation for 11 of the workers has passed. Mr. Grunhut could make a case to reduce the back pay for the 11, based on whether they found new jobs or whether they looked for work, but he can no longer make the immigration claim.
He owes $231,000, plus interest, to the workers. The firings have prompted other problems, too. More than 80 leading supermarkets, including Fairway, Zabar's, Food Emporium and the Park Slope Food Coop have refused to carry Flaum products until the company settles with the workers. And late last year, facing pressure from rabbis and workers, Tnuva, the world's largest kosher dairy company, said it was cutting ties to Flaum.
“We're glad Flaum didn't get away with avoiding its responsibilities under the law,” said Maria Corona, who was fired when she organized to win overtime pay for her 70-hour weeks. “We are well on our way to winning the justice we have been seeking.”
