Voces de la Frontera (VDLF), a Milwaukee-based immigrant rights group, has taken an aggressive public relations battle to the doorstep of Palermo’s Pizza for what they’ve alleged to be “union busting.” Of course, Palermo’s Pizza denies the allegation. Recent firings, they point out, were the result of an audit initiated by ICE (Immigrations and Customs Enforcement) in February of 2011.
A few weeks ago -- and with little media coverage -- the Hispanic Chamber of Commerce Wisconsin (HCCW) weighed into the dispute siding with Palermo’s Pizza -- while also being critical of Voces de la Frontera. Maria Monreal-Cameron, President of HCCW, recently wrote an op-ed for Milwaukee BizTimes making a point of fact that Palermo's is a "valued employer" and the "type of company we [the Hispanic community] should be putting up on a pedestal.”
On February 17, 2011, the Department of Homeland Security (DHS) alerted Palermo’s Pizza that they would initiate an audit in compliance with the Immigration and Nationality Act. The following month, the company provided DHS with the I-9s of all 394 employees.
On May 10, 2012, Palermo’s is informed that the employment eligibility of 89 employees could not be verified. May 30, ICE sent an official “Notice of Suspect Documents” informing them that suspected employees needed to “present valid identification and employment eligibility documentation” or be subject to escalating civil and criminal penalties.
On May 29, 2012, Palermo’s notifies 89 employees what was required by ICE, but not before reaching out to Christine Neumann-Ortiz, the Executive Director of Voces de la Frontera. Chris Dresselhuys, spokesperson for Palermo’s Pizza, told El Conquistador that in their naiveté, they believed Voces to have the necessary resources and resolve to help their employees get proper documentation. While Neumann-Ortiz was agreeing to help Palermo’s Pizza, she was also meeting with employees to file a petition to organize a workers’ union. (Two days after notified by Palermo’s, Neumann-Ortiz filed a request with the NLRB for a union election.
On June 8th, in compliance with the Immigration and Nationality Act, Palermo’s Pizza terminated eighty-seven tenured employees whose workplace eligibility could not be verified by ICE.
Voces de la Frontera has a different take. They allege that Palermo’s Pizza used the ICE audit as a tactic to interfere with the formation of a labor union. Neumann-Ortiz refers to a Memorandum of Understanding (MoU) between Homeland Security and the U.S. Department of Labor, indicating that an employer cannot use ICE to interfere with an ongoing labor dispute.
Seeking to “de-conflict itself,” ICE sends Palermo’s a letter on June 7, 2012 (a day before Palermo’s terminated its employees), stating, “At this time, ICE will stay further action regarding its Notice of Suspect Documents.”
Neumann-Ortiz the letter as ICE suspending its audit. She argues; therefore, that all affected employees should be reinstated and a Palermo’s union should be recognized as a legitimate bargaining unit.
Voces isn’t alone in their advocacy. State Representative JoCasta Zamarripa, the only Latina in the state legislature, has put some muscle and political will behind Voces and the affected workers they represent. In a phone interview with El Conquistador, Zamarripa said that suspending the audit left legitimate questions about who was and wasn’t undocumented. She believes that Palermo’s fired its workers prematurely and should have let the investigation play itself out.
On September 11, 2012, Monreal-Cameron invited Neumann-Ortiz to her office “as a common courtesy” to offer Christine a heads-up on her op-ed. Christine wasn’t amused.
“You can’t do this to us, you have to stand behind us. We are members!” plead a frustrated Neumann-Ortiz. “Who are you to tell me what position I’m supposed to take,” bristled Monreal-Cameron. To be sure, sometimes local disputes will have saber-rattling, but there were other issues Monreal-Cameron questioned -- like promising undocumented workers they could get their jobs back if they helped organize a union. “You have no right to say that,” charged Monreal-Cameron, “To say that if you join the union, you’re in.” Christine disagreed saying, “They have some rights.”
Although Monreal-Cameron explained in no uncertain terms she wouldn’t yank the op-ed, it didn’t deter Neumann-Ortiz from reaching members of the HCCW board to pressure Maria internally. A position paper by the Hispanic Chamber of Commerce that's supportive of Palermo’s Pizza was clearly not something Neumann-Ortiz wanted in the media. But board members of the HCCW stood their ground; Monreal-Cameron published her op-ed a few weeks later in the Milwaukee BizTimes and also El Conquistador Newspaper. The mainstream media largely ignored it.
The central issue of whether Palermo’s Pizza should or should not have fired employees rests solely on U.S. immigration law, not a cryptic one-sentence letter from an ICE official who refuses to clarify what it meant.
In a May 30 letter sent to Palermo’s, ICE made clear that 89 employees were “considered by ICE to be unauthorized to work in the United States.” Two employees appealed the decision, submitted additional documentation, and were cleared by Homeland Security Investigation (HSI) as lawful to work in the United States.
Rep. Zamarripa has argued that a letter of stay by ICE had suspended the audit; therefore, she reasoned, it is unclear exactly who undocumented. Although she means well, we believe her conclusion is false.
Section 274A(2) of the Immigration and Nationality Act (INA) makes it unlawful for an employer to continue the employment of an alien “knowing” that the alien is, or has become, unauthorized for employment. In a standard "Notice of Suspect Documents" letter from ICE, it defines “knowing” as not just actual knowledge, but "knowledge which may be fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about an individual’s unlawful employment status.”
El Conquistador asked ICE Public Affairs official Gail Montenegro if a previous letter by ICE -- sent to an employer showing which employees they considered unauthorized to work in the United States -- would qualify as “a notice of certain facts and circumstances.”
Their response? “ICE has no comment beyond the statement previously provided,” I also spoke to Deputy Chief Counsel John H. Gountanis over the phone (He's the same ICE official who sent that “letter of stay” to Palermo’s Pizza suspending the audit). He also punted on whether a company should or could use a prior letter from ICE as a fair inference of the facts about a worker's ineligibility. It's important to emphasize that an employer doesn't need actual knowledge, but rather a fair inference through a notice of certain facts. Arguably, that notice of facts could be a prior letter from ICE.
When it comes to figuring out whether their actions comply with U.S. Immigration Law, we suspect that Palermo’s Pizza is on their own. They will get no help by ICE officials to clarify what a cryptic one-sentence letter means nor how it relates to existing immigration law. That's pretty lousy considering that Palermo's lost 25% of their skilled workforce because of an audit ICE started.