The summary below is limited to the federal and state government action taken against El Super. We will add to the information when there are any new developments.
Unfair Labor Practices
El Super has repeatedly violated U.S. labor law. In 2014 and 2015, Regions 21 and 28 of the U.S. National Labor Relations Board (NLRB) issued complaints in response to numerous unfair labor practice charges. Allegations against El Super’s conduct in these complaints included:
- Interfering, restraining, and coercing employees in the exercise of their protected rights;
- Threatening employees because of union activities;
- Interrogating employees about their union activities;
- Spying on workers’ union activities;
- Disciplining and discharging employees because of union activities;
- Refusal to bargain in good faith with the UFCW at union-represented stores.
In 2015, the NLRB sought two federal court injunctions against El Super’s conduct, one in California and one in Arizona. The Arizona case settled after the NLRB filed its request for an injunction, and the Company agreed to the remedies sought. In California, the Presiding Federal District Court Judge for the Central District issued a 10(j) injunction. This is an extraordinary remedy that is only granted when workers face “irreparable harm.”
Constrained by the injunction and faced with a trial before an NLRB Administrative Law Judge in California, El Super settled the unfair labor practice charges raised in the complaint upon which the 10(j) injunction was sought in August of 2015. The settlement agreement encompassed the following violations and remedies:
- Finding the company had unlawfully terminated Fermín Rodríguez for his union activity the Court ordered El Super to immediately reinstate Mr. Rodríguez to his former position as cashier at Store #13, with back pay.
- Finding the Company unlawfully unilaterally changed its vacation policy the Court ordered the El Super to reverse the changes to the vacation policy, and (a) ensure employees accrue one week of vacation time during their first year of employment, and (b) accrued time is calculated on a yearly basis upon the completion of each full year worked.
- The Company told the Court it now recognizes it has a legal obligation to bargain with the UFCW – The Court accepted this agreement to resume negotiations and bargaining with UFCW began again on August 18, 2015.
As a result of this settlement El Super was required to pay 549 current and former employees a total of $363,000 in back pay arising from its unilateral change to vacation policy. There were 319 current El Super employees that received back pay totaling $255,694.38, and 230 former employees received $108,052.49 – covering the period through August 31, 2015. After further accounting in June of 2016 El Super was required to pay an additional $98,274.68 to employees for vacation accrued and not paid out during the life of the settlement. This matter is still under compliance review by the NLRB.
Unfortunately, neither the injunction nor the settlement agreements have ended El Super’s conduct that runs afoul of U.S. labor law. In 2015, the UFCW filed a new round of unfair labor practice charges involving El Super’s refusal to bargain in good faith, failure to process grievances over discipline, discharge and compensation, failure to provide information to verify the implementation of a California state mandated sick leave policy, and refusal to provide information key to current bargaining.
Some of these charges were settled in advance of NLRB hearings, one of which resulted in a formal order regarding failure by the Company to provide key information regarding seniority, wage rates and part time/full time status. A comprehensive charge alleging unilateral changes, refusal to provide information and surface bargaining is still pending before the NLRB.
State Wage and Hour Investigations and Penalties
The first El Super wage & hour claim involves 20 workers from 10 different stores. On July 3, 2015, the California Division of Labor Standards Enforcement (DLSE) announced that their investigation resulted in fines and assessments of over $180,668 for various violations of California W&H laws.
El Super appealed the above claim to the DLSE and hearings were held in November 2015, and again in February 2016. On May 10, 2016, the hearing officer who heard their appeal affirmed the original ruling, upholding the fines and assessments. El Super may file a second appeal of that claim. The company filed a second appeal is on or around July 13, 2016.
A second wage & hour claim was submitted to the DLSE officer in November 2015. This claim affects 50 current and former El Super workers from 13 different stores. The DLSE is in the process of investigating this claim.