NLRB Decision Could Reverse Berkeley Bowl Union Defeat

NLRB Decision Could Reverse Berkeley Bowl Union Defeat

By JAKOB SCHILLER (04-23-04)

Six months after losing their union election battle on a disputed 119-70 vote, Berkeley Bowl workers might still get union representation.

On Tuesday, Local United Food and Commercial Workers (UFCW) Butcher’s union local 120 president Tim Hamann and union attorney David Rosenfeld both received calls from the local National Labor Relations Board (NLRB) office, telling them the NLRB will soon be issuing a complaint against the Berkeley Bowl for unfair labor practice charges filed during last year’s union drive.

Along with that complaint, the NLRB will also deliver a bargaining order under which Berkeley Bowl must start negotiating with the union without holding another election.

The decision does not mean that Local 120 will automatically and immediately become the union representative for the Berkeley Bowl workers. The NLRB’s order will now go before an administrative law judge for adjudication, and can be appealed from there.

In the interim, however, Rosenfeld said the local NLRB board will file for an injunction that would allow the bargaining order to go through while the administrative law judge decides on the case. Without an injunction the process could take years. With an injunction, both sides could meet at the bargaining table in a couple of months.

Alternatively, the Berkeley Bowl can try and negotiate a settlement outside the courts.

“This is about the biggest slap on the hand you can get from the feds,” said Hamann. “Did the union get beat [last year]? I don’t think so.”

For the workers, who organized for more than five months before going to an election, the decision is verification of their claim that the Berkeley Bowl committed numerous violations to sway the vote.

“I’m delighted the federal government, the NLRB, has come to a decision that they feel that the Berkeley Bowl has violated our rights because this is what we were saying all along,” said Kevin Meyer, a cashier at the store.

Berkeley Bowl officials said they had no comment on the NLRB’s decision.

Part of the complaint that the NLRB issued includes a charge that former produce worker Arturo Perez was fired illegally during the union drive. If or when the decision is handed down against the Berkeley Bowl, Perez will be entitled to his job back plus full back pay.

For the workers, Perez getting his job back and walking back into the store would be an especially sweet victory because many believe he was fired for being an outspoken union supporter.

“The most important thing, hopefully, will be that the Berkeley Bowl will be forced to offer Arturo his job back plus full back pay,” said Meyer. “That was one of the biggest wrongs that they did and he certainly deserves that. That would be a huge symbol to the workers here, it will prove that we have rights.”

After Perez was fired he had to fight to get unemployment, and found himself commuting several hours to another grocery job in the north bay. His wife, who had heart surgery, needs expensive medicine and at times the only way he could survive was with the help of his children.

“I have a lot of hope, since the first moment I knew I had pretty good case,” said Perez. Before celebrating, though, he said he wanted to make sure everything went through. He did say he was happy to hear the news and was hopeful that any changes will benefit the entire store, not just him.

“This is what everybody wanted, this is what we fought for,” he said.

Berkeley Bowl workers originally tried to avoid an NLRB election as a way to verify the union. Instead, they originally advocated a card check election, where the union would be certified if a majority of the company’s workers signed cards indicating they wanted to be represented by the union.

Unlike an NLRB election, a card check verifies the union immediately. Union supporters had said last year that because the NLRB election takes months, it gives the employer time to run an anti-union campaign and sway the vote. Several of the current charges against the Berkeley Bowl occurred during the time between the scheduling of the union vote and the time the vote actually took place.

The board decision, said union lawyer Rosenfeld, “proves that the employers can always defeat a union election by doing enough illegal things and the result is it takes years for the union to get bargaining rights. It proves that the whole election process is flawed.”

According to Michael Leon, assistant regional director for the local NLRB office in Oakland, a bargaining order can only be filed when there is enough evidence to prove that there is no way to hold another election that would be fair.

“The theory is that the union didn’t win because of the unfair labor practices and it’s pointless to hold a second election because there would be no way to get back to the status quo that existed before the alleged unfair labor practices,” said Leong.