NLRB Overturns California UFCW Local Election Results; Cites Threats

The United Food and Commercial Workers don’t like taking “no” for an answer, especially when it comes to dealing with employees not seeking to join. That would appear to be the case in California. The 1.4-million-member UFCW is a fast-growing union and a member of the AFL-CIO’s breakaway federation, Change to Win. Change to Win President Andrew Stern and UFCW International President Joe Hansen are seeking dramatic boosts in membership. But the National Labor Relations Board this past May made clear that suppressing dissent isn’t a legitimate tactic to realize those gains.     


Local 1096 of the United Food and Commercial Workers last year had sought to represent certain workers at River Ranch Fresh Foods, a major fresh vegetable processor. The company has plants in Salinas and El Centro. On June 21, 2005, the union filed a petition with Region 32 of the National Labor Relations Board to seek an election. Three months later, on September 7, the NLRB approved a Stipulated Election Agreement indicating the employees eligible to vote. Some workers wanted to join; others didn’t. The latter category included one Refugio Romero, and his son-in-law, Emilio Herman. On or about October 26 they tried to convey their position to the local. That’s when their problems began.


Romero and Herman went to an Office Depot retail store to use its fax machine. They asked a store employee to transmit petitions to Local 1096 indicating the names of employees opposed to joining. At 47 pages, it was a lengthy document, and as such, a complete transmission would take a while. At the receiving end about a mile or two away was Arturo Uribe, local vice president and the union agent primarily responsible for the organizing drive. He or one of his assistants managed to identify the location, though not the sender. Ms. Della Garcia, a union representative and office manager, asked Uribe to go to the Office Depot to find out who was sending the faxed sheets. Upon arrival, Uribe located the machine from which the transmission was taking place, and then approached Romero and Herman who were still there. A less than friendly exchange in Spanish quickly ensued. Uribe accused Romero of “invading” his fax machine, and demanded to receive the materials being sent. Uribe reportedly said, “Give me the originals, otherwise you’re going to pay for it, either one way or the other,” and gave the appearance of trying to rip the sheets from Romero’s hands.           


Romero and Herman informed their employer of the incident, who in turn contacted the Fresno law firm of Barsamian, Saqui & Moody, well-known in the area for representing employers in labor disputes. The plaintiff, River Ranch Fresh Foods, LLC, argued that Romero and Herman had acted fully within their rights under the National Labor Relations Act, their “crime” being nothing more than conveying the extent of opposition to representation. Moreover, they argued, Uribe’s suppression of the fax transmission may have affected the eventual outcome of the election. The combined tally at Salinas and El Centro was 66 votes in favor of representation and 29 opposed. While the Salinas balloting had occurred prior to the incident, the El Centro balloting did not take place until late November. 

The NLRB on May 2 ruled on behalf of River Ranch. Clifford H. Anderson, an administrative law judge with the board, wrote: “(T)he Union’s conduct…had (the) tendency to interfere with the employees’ freedom of choice and that the threat involved had a nexus to unit employees that made it unusually likely to be of lasting impact on a significant number of voters.” Judge Anderson subsequently ordered that a new election take place. The United Food and Commercial Workers understandably want new members, but in California at least, they’ve found out the hard way that they have to adhere to federal law. (National Labor Relations Board, San Francisco Branch Office, 5/15/06).