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By Liz Highleyman
Nearly four years after Utah-based Nutraceutical Corporation closed the 24th Street Real Food store and terminated 31 workers, the National Labor Relations Board (NLRB) ruled again in favor of the store's former employees, who claim they were fired for trying to organize a union.
"It's a real vindication to have two different decisions in our favor," said Sarah "Mitch" Genlot, one of the fired workers. "I feel what [Nutraceutical] did was wrong, and that's been shown again for a second time."
But the company has appealed the ruling, and the storefront still sits empty.
As Voice readers will recall, when Nutraceutical shuttered the store over Labor Day weekend in 2003, company officials said they intended to do a badly needed remodeling. The ex-employees doubted this claim and filed an unfair labor practices lawsuit with the NLRB.
In November 2005, Administrative Law Judge James Kennedy ruled in favor of the ex-employees, saying that Nutraceutical had fired two workers, Genlot and Adriel Ahern, and refused to rehire union supporter Kim Rohrbach, because of their union-organizing efforts.
Second Ruling (Mostly) Backs Workers
Nutraceutical immediately appealed the decision to the full NLRB in Washington, D.C. After nearly a two-year delay, a three-member panel upheld most portions of Kennedy's decision on July 24, ruling that Nutraceutical had engaged in illegal labor practices.
"We find that the preponderance of the evidence establishes that [Nutraceutical] engaged in a series of escalating events responding to the employees' organizing campaign and evidencing unlawful motive," the panel wrote. This evidence "strongly suggests that [company officials] were motivated by their employees' union activity, rather than legitimate business reasons, when they chose to precipitously close the 24th Street store."
However, the panel overturned a few aspects of Kennedy's earlier ruling specific to individual employees.
The board ordered that the terminated workers must be awarded back pay and offered jobs at the company's other local stores. In addition, Nutraceutical must post notices at all its California stores, stating that employees have a right to form a union and that the company will not take illegal steps to discourage future organizing efforts.
"The decision was overwhelmingly favorable," said Rohrbach, even though the panel did not agree with the portion of Kennedy's ruling that dealt with her rehiring. "That even a conservative board would uphold [the earlier ruling] says a great deal."
"We consider it a victory, but it's unfortunate it took the board so long," said NLRB Deputy Regional Attorney Olivia Garcia. "We were excited to get this decision, and the NLRB wants to see enforcement of its board order."
But such enforcement may not happen anytime soon.
In early August, Nutraceutical appealed the board's decision to the next level, the U.S. circuit court system.
"We're obviously very disappointed with the ruling overall," said the company's local attorney, Stephen Hirschfeld, himself a Noe Valley resident. "We think they are wrong, and we feel there is a strong likelihood that on appeal we've got a shot at reversing the decision."
Hirschfeld said the company filed its appeal with the D.C. Circuit because that court hears the most NLRB appeals and is most familiar with relevant case law. The former employees also decided to appeal the portions of the decision that went against them, but chose the more liberal 9th Circuit.
According to Garcia, the case will now go before a multi-district litigation panel to determine which circuit would hear the appeals.
Garcia said it was impossible to predict a timeline, but Hirschfeld suggested it could be years before the case is finally resolved.
Back on the Home Front
Neighborhood supporters of the fired employees were generally pleased with the decision, but disappointed about the delay.
"On one hand, it's wonderful that the workers won, but it's regrettable that it took this long and that the process is so stacked in favor of the corporation," said Jim Lewis, a Noe Valley resident and former customer at Real Food. "It's too bad the company can break the law at will, hire lawyers they can afford, and take their sweet time."
"The decision is an important victory for the workers and for the community that has supported them," agreed Elizabeth Street resident Peter Gabel, who spearheaded the local response after the 2003 closure. "But the fact that the store is still closed after four years shows that this lengthy federal process is not sufficient to protect the values and character of our neighborhood."
Indeed, the waiting game is far from over.
Even as rumors percolate about a Whole Foods outlet opening across the street, the old Real Food building remains empty with no sign of a renovation in progress.
This past April, Sergio Diaz, vice president of Fresh Organics (a Nutraceutical subsidiary), told the Voice that the company had decided to demolish the existing structure and replace it with a multi-use building which would include a new grocery store and possibly housing. He said at the time that the company anticipated filing for permits "over the next few weeks."
As of late August, the city's Department of Building Inspection web site showed no permits issued for such a project.
Diaz did not return the Voice's phone calls or e-mail seeking an update by press time, but attorney Hirschfeld said, "My client fully intends to accomplish that plan."