The United Food and Commercial Workers Local 1473 has filed with the National Labor Relations board to intervene in the election and request a spot on the ballot.
"We had to go back to the petitioning union and the employer to see if they would agree to modify the (election) agreement," said Irv Gottschalk, NLRB regional director for Milwaukee.
Palermo's did not agree to the modification, so the NLRB's election approval was revoked. Gottschalk will issue a decision next week about whether the election can be rescheduled and stating the voter eligibility cutoff date.
Palermo's workers filed a petition to form a union with the NLRB on May 29. Then, they filed an unfair labor practice charge against the company on June 4, which alleges coercive actions (such as surveillance and intimidation), refusal to recognize their attempt to form a union and changes in terms and conditions of employment. Some workers have been on strike since June 1.
"We started to process the petition and then we started hearing about difficulties," Gottschalk said. "We're certainly aware that people have been fired and replacement employees have been hired."
If the NLRB rules the strike an unfair labor practice strike, those who are picketing would have the right to immediate reinstatement to their jobs, he said. If the strike is deemed an economic interest strike, where employees are asking for better conditions and wages, the employees would not have that right.
Meanwhile, U.S. Immigrations and Customs Enforcement was in the midst of an ongoing audit of workers at the facility to confirm their legal right to work.
"ICE has held off on enforcing some of what it is doing because of the existence of the labor dispute," Gottschalk said. "We don't want people deported if we need to talk with them as witnesses."
An ICE spokesman said the department can't comment on individual cases, but released the following statement:
"In conducting Form I-9 inspections, ICE de-conflicts its investigations with the Department of Labor in an effort to not interfere with any open and active DOL investigations of labor disputes. In very rare cases, ICE may temporarily suspend an ongoing I-9 audit by staying further action on the audit until a labor-related dispute is resolved.
ICE's guidance on this issue is intended to prevent parties from utilizing ICE to interfere with ongoing labor disputes."
Voces de La Frontera, a Milwaukee immigrant rights group, has been speaking on behalf of the striking workers.
The group alleges unsafe working conditions, including amputations at Palermo's and no time off for employees who are sick.
The Occupational Safety and Health Administration has no record of amputations at Palermo's, but has fined the company $7,000 in the last four years, a spokesperson for the Milwaukee office said.
Workers at Palermo's are given 40 hours of paid time off in their first year and 80 hours in the second year. The PTO is meant to be used for sick time, said Chris Dresselhuys, director of marketing for Palermo's.
"The important thing to understand, or perhaps the most important thing, is the chronology of the events that have occurred," Dresselhuys said.
Palermo's got notice from ICE on Feb. 17, 2011, that the department was conducting a worksite investigation and I-9 audit at the company. During the investigation, ICE identified 89 people as ineligible to work in the U.S. and said Palermo's would need to provide further documentation for those employees. Continuing to employ illegal workers is a crime, the notice said.
The company gave workers notice they would need to file additional documentation by June 8, The ICE investigation was stayed on June 7 as a result of the labor dispute.
The company claims Voces de La Frontera is blatantly subverting immigration law by focusing instead on a labor dispute.
Since the ICE investigation said Palermo's was legally bound to separate from employment those employees who did not meet its documentation requirements, the company did so after June 8.
Voces claims those employees were fired because they were participating in the strike.
“The bottom line is that on the contrary (Palermo’s is) using immigration as a hammer to destroy union organizing drive,” said Christine Neumann-Ortiz, director of Voces. “The Department of Homeland Security has actually done the right thing.”