NLRB Court report

The National Labor Relations Board (NLRB) hearing concerning Golden Farm (GF) ended Tuesday, following several days of testimony.  Occupy Kensington activist Sue Braverman observed the entire proceeding and Eleanor Rodgers observed two days of the testimony.  They brought back the detailed report below. First, however, a bit of context.

Many recall that For GF workers to elect a union and get it recognized was a long process, also involving NLRB proceedings, which employer Sonny Kim kept losing. Mostly, this concerned Sonny’s frauds as to who was an employee entitled to vote, and his other unlawful attempts to influence the outcome of the election.  Once recognition was won, labor law provided a one-year period during which the union could concentrate on bargaining, without worrying about attempts to undo union recognition through “decertification”.  In general, if the union goes for a year without bargaining a contract, the workers can petition for a new election to decertify the union.  However, the law recognizes that this rule should not be implemented where the lack of a contract within one year, and/or a majority for decertification, is not the fault of the union but is the result of the employer’s bad faith bargaining and/or other “unfair labor practices” (actions which violate the National Labor Relations Act (NLRA), and its protection of concerted activity, actions such as retaliatory cuts in hours and wages to drive out union supporters).  At  GF, the one-year period after workers finally got union recognition was characterized by “surface” bargaining and unlawful attempts at interference. Many of these were committed by Sonny’s manager, Steve.  (Steve’s last name is not also Kim, as many of us had believed, and his given first name is not Steve, but he goes by Steve and uses that name to sign documents.)  After the year ended without a contract, Sonny saw to it that a decertification petition was circulated and that it got as many signatures as possible.  It is generally understood that if Sonny were to succeed in getting the union election rolled back, the remaining union supporters would be unlikely to last long in their jobs.  This set the stage for the hearing, on which Sue and Eleanor reported as follows:

Lawyers for the union attended, but The NLRB had already determined that the complaints against Sonny had enough merit that the NLRB itself presented the case against him, through the NLRB’s own lead attorney.  She did an excellent job.

The evidence showed that a first decertification petition was circulated among the workers but was not filed because Sonny’s own lawyer found that it was technically defective.  Another, which ultimately became the subject of the hearing, was prepared and circulated.  GF workers testified that they had observed Sonny and Steve encouraging other workers to sign the decertification petition and telling them, among other things, that when the union and its supporters were gone, there would be more hours and therefore more income for them.

It was quickly established on documentary evidence that two of the persons who had signed the decertification were not even listed as being on payroll.

The “employee” who initiated the petition was actually a representative of the same Small Business Association to which Sonny belongs, an international business man who, in his testimony, complained bitterly about his experiences with unionization at a business he owned in Mexico.  Sonny had put this man on the payroll for twelve hours a week at approximately $9/hour. Sonny had also placed on payroll this man’s son.  Their story was that the son had been hired for reasons that had nothing to do with the labor dispute, but he had come to dislike the union presence at the store and had decided independently to complain about this to his father, who went on line and, independent of management, stumbled across the form and instructions for a decertification petition on the website of an anti-union organization known as National Right to Work.

GF workers testified to a number of acts of retaliation and intimidation by Steve, including physically seizing workers (by the shirt), destroying property (a radio), and summarily firing workers on repeated occasions so that Sonny could step in and play the good cop by putting them back to work.

Sonny’s response to this wasn’t so much to deny Steve’s antics as to claim that he (Sonny) should not be held responsible for them because Steve is actually not a manager. Steve is just, according to the testimony of Sonny’s consultant Joe, a “very tough” guy.  Sonny also offered several completely contradictory statements within fifteen minutes concerning Steve’s command of English or lack thereof. Angelina, one of the cashiers whose relatively privileged position has been used to split them from the stock workers, undermined her own credibility by leveling allegations of anti-immigrant comments and loud, disruptive behavior in the store.  What made these allegations so harmful to Angelina’s credibility was that she leveled them at the interpreter who had been supplied by the government for the hearing—who also happened to be a very soft-spoken woman, and who turns out to be an immigrant from Latin America herself.  To Angelina’s credit, she did avoid denying outright that Steve is a manager.  Others were found who were not so squeamish.  At one point, the judge admonished Sonny to stop giving visible signals to employees during their testimony.

There was plenty of evidence to contradict the tale of Steve as an independent actor.  The judge who presided over the hearing admitted an inspection document from the NYS Department of Agriculture, posted in the store and identifying Steve as a manager.   (Steve claimed this was just because the state rep had said he was such a good worker that he should be a manager).  Also admitted into evidence was a disciplinary report on another worker, written in Steve’s own hand and signed by him. Evidence also showed that Steve is paid more than any other worker in the store.  Workers testified that there are only two desks in the upstairs office at the store.  One is Sonny’s.  The other is Steve’s, in which he keeps his pills, his shoes, etc., and on which is the computer Steve uses.  (Sonny claimed that lots of people use that computer.)   Near the end of the trial, Sonny’s lawyer took the unusual step of calling himself as a witness, so that he could deny testimony that he and Sonny’s consultant Joe had both previously spoken of Steve as a manager before various witnesses.

Sue’s perception was that the judge seemed sympathetic to the workers’ case and skeptical of Sonny’s various rationalizations.

When the hearing ended on Tuesday, the judge asked for post-hearing briefs to be submitted by March 15.  An NLRB who was assisting the agency’s lead attorney surprised  union supporters when he said that it could well take until August to get a decision, although there is a procedure for seeking a more expedited decision.

If the decision is favorable and decertification is denied, a disaster for the unionized workers will be averted, and this alone will make it a very significant victory. Sonny will be directed to return to the table and to engage in good faith bargaining.  The union has asked that he also be directed to come to the table within three weeks of the judge’s ruling,  and thereafter to bargain a minimum of 24 hours each week.  However, it is quite conceivable that Sonny might simply return to “surface” bargaining, more retaliation, and other unfair labor practices, and that he might keep it up for another year, then attempt to orchestrate yet another decertification—if all he had to fear were another hearing with perhaps similar results.   But that is not all that Sonny has to fear.  He must also fear the continuation of the boycott, which he testified has been costing him 20% of his business and revenues.

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