A kosher food product wholesaler in New York has agreed to settle a long-running NLRB case by paying $186,000 to former employees who lost their jobs in the midst of a union organizing campaign.
The settlement culminates a lengthy effort by the NLRB to enforce an order that Flaum Appetizing Corp. provide backpay to 17 former employees who were unlawfully discharged following a two-day strike. Flaum contended it did not have to pay because the employees were undocumented immigrants.
A decision in the case was issued by an Administrative Law Judge in February 2008, and upheld by the Board on appeal in June 2009. It found that the company committed multiple violations of federal labor law by alternately threatening and making promises to employees to discourage them from supporting the Industrial Workers of the World. The employer then unlawfully refused to allow employees to return to work following a two-day strike that the workers and union staged to protest the firing of a co-worker.
Following the 2009 Board Order, the NLRB Regional Office in Brooklyn calculated the amount of backpay owed by the employer. In response, the employer claimed that the employees were owed no backpay because they were ineligible to work, but failed to set forth facts to support its claim. The Board, in a Supplemental Decision and Order in December 2011, dismissed the employer’s defense because it did not show it had a good faith basis to support its immigration-related claim. An Operations-Management memorandum issued to the regions last week offered further guidance.
The settlement was reached May 7, just before a Compliance Hearing regarding the accumulating backpay was due to begin. The $186,000 represents 80% of the entire amount that the NLRB determined employees would have earned had it not been for the unlawful discharges.
An additional agreement reached between Flaum and its former employees settles a separate lawsuit filed regarding allegations of unpaid overtime, bringing the total settlement amount to $577,000.