Foodlink settlement leaves questions

After a months-long National Labor Relations Board investigation, Foodlink has settled nine charges of alleged labor rights violations.

In late 2021, during an unsuccessful push to unionize Foodlink’s Rochester operations, 13 labor rights violation allegations were brought against the company.

An April email from the NLRB to Seth Goldstein, the Office and Professional Employees International Union senior business representative who filed the charges, said the agency’s Buffalo region determined nine of those allegations were “meritorious.” The email also said the agency was submitting the cases to the NLRB’s Injunction Litigation Branch “for guidance on whether to pursue a Section 10(j) injunction” against Foodlink to stop unfair labor practices while the cases went through the board’s process. 

Three meritorious allegations related specifically to Cory Robinson, a former employee who alleged his firing in July 2021 came in retaliation for engaging in union activity and discussing employment conditions with coworkers and bosses. He also alleged that he was restricted from part of the Foodlink facility to prevent union discussions.

The six other charges deemed meritorious allege that two supervisors surveilled or created the impression of surveillance of employees’ union activities, one supervisor threatened retaliation for engaging in union activity, one supervisor told employees they could not leave union literature in the break room, the Foodlink employee handbook included unlawful work rules, and that CEO Julia Tedesco suggested unhappy employees could work elsewhere.

The settlement, which does not constitute an admission by Foodlink to the charges, covers all nine allegations. According to the agreement, the company will be required to pay Robinson more than $28,000, issue him a written apology, and publicize to its workers a notice of the situation and their rights under the National Labor Relations Act.

The NLRB’s investigators determined the allegations had merit based on testimony and other evidence. In cases of alleged unfair labor practices, the agency becomes a representative for the charging party in settlement talks only after a regional investigation determines the merit of the charges.

In fact, including non-admission clauses in NLRB settlements is currently a nonstandard practice, according to a September memo issued to the agency’s regional offices by NLRB General Counsel Jennifer Abruzzo.

“Regions are reminded that non-admission clauses in informal settlement agreements should remain the exception and that, absent special circumstances, Regions should continue insisting on the exclusion of non-admission clauses in all settlement agreements and strongly consider the inclusion of admission clauses for repeat violators,” the memo reads.

The NLRB did not respond to a request to clarify what “special circumstances” might warrant the inclusion of a non-admission clause in a settlement, as was done in the Foodlink case.

Goldstein, who also works as a pro-bono attorney for the Amazon Labor Union, says he is appalled at its inclusion and that he advocated against it, though he did not act directly as Robinson’s counsel in this case.

According to the NLRB, over 90 percent of meritorious unfair labor practice cases end in settlements rather than proceeding to litigation. The settlement in this case prevented it from moving to a hearing before the NLRB’s administrative law judges.

“We’re glad to have reached a resolution and to bring these matters to a close so that we can continue to focus on our staff, our critical mission, and on serving this community,” Foodlink said in a statement.

A Rochester-based nonprofit founded in the late 1970s with operations spanning a 10-county service area, Foodlink is “dedicated to ending hunger and building healthier communities by addressing both the symptoms and root causes of food insecurity,” its website states.

A worker’s perspective

In his own statement posted Aug. 19 on the Foodlink United Facebook page, Robinson gives his perspective on the union campaign, the anti-union efforts, and how Foodlink can improve.

Robinson joined Foodlink in May 2018 as operator of one of the company’s fruit and vegetable trucks. He moved to its nutrition education team and helped with “Cooking Matters” courses, which educate people on nutrition and food preparation, in October of that year. After being promoted to coordinator of the Cooking Matters program, he became nutrition education coordinator in July 2020 and held that position until his firing in July 2021.

In a sworn witness affidavit obtained by the Rochester Beacon, and labeled as part of documents filed in this case, Robinson testified to the circumstances of his firing and the timeline of his involvement in the unionization campaign.

He testified the organizing was preceded by concerns that the company put workers in positions they weren’t prepared for during the height of the COVID-19 pandemic, namely by assigning food educators to drive trucks “they were uncomfortable driving” or assigning them to lift supplies “they were not physically able to or comfortable lifting.”

In addition, Robinson said he suggested implementing practices to remedy the company’s alleged “internal racial wage gap” during a company training. He said his suggestions “were not engaged” and that he was “pretty much ignored.”

“What I saw, the more that I was at Foodlink, was a desire to claim antiracism without any commitment to material antiracism,” he said in an interview. “That, in part, is where the union effort came from—to legally organize and to introduce a level of accountability, two things that Foodlink was saying that it wanted.”

Robinson’s allegation of an “internal racial wage gap” at the company was raised in his affidavit but was not a charge brought in the NLRB case. (The NLRB would not litigate an allegation of this kind.) A number of accusations in the affidavit are of this nature, and Tedesco said in a statement that “those assertions contain false information and innuendo,” and the portrayal of Foodlink and its leadership “is distorted, false and lacks credibility.”

Her full statement reads:

“Foodlink chose to settle the matters pending at the NLRB, prior to a hearing on the merits of those cases, so we could focus on the critical work of addressing food insecurity in our community. The subject line of your email was “NLRB Settlement”—however your email lists questions and allegations posed by a former employee that contain assertions not raised in the NLRB cases that we have resolved. Those assertions contain false information and innuendo, and the portrayal of the culture and the character of our leadership is distorted, false and lacks credibility. 

“Foodlink has built a strong reputation and is a leader in the nonprofit sector in part for our progressive, equitable approach to employment practices, including compensation, benefits, professional development and support programs for our incredibly diverse and talented staff.  These practices are rooted in our mission and values, and are aligned with our work throughout the communities we serve.  I am deeply proud of our culture and leadership, and I recognize that neither is static; as Foodlink continues to evolve, we remain committed to actively looking at all we do through a lens of fairness, compassion and inclusivity.”

Robinson and a colleague reached out to a unionized food bank in mid-2020, his testimony continues, and they began floating the idea of unionizing to other employees. They were connected with OPEIU in August 2020 and held a meeting with an OPEIU organizer the next month.

That October, Robinson learned from a coworker that another employee he told about the union talks had informed Tedesco about what was going on. A few days before he got this tip, Robinson was called into a meeting with Tedesco, according to the affidavit. He recorded the audio of the meeting without Tedesco’s knowledge, which is lawful in New York, and the Beacon obtained this recording.

During the meeting, Tedesco said she heard from two sources that Robinson was making complaints about aspects of employment conditions at Foodlink. He expressed concerns about transparency around how the company was pursuing its racial equity goals, particularly citing a de facto racial disparity between the company’s office and warehouse staff and the aforementioned alleged pay gap between the two groups.

Tedesco acknowledged the racial imbalance on the staff. She did not directly affirm or deny a pay imbalance, but emphasized that achieving equity was “not just (as) easy as saying, ‘you know what, I’m going to pay every single person that applies for a job in the warehouse $50,000 a year.’” Robinson affirmed he knew that she could not just snap her fingers.

Tedesco repeatedly identified criticism of the Foodlink workplace with personal criticism of her and her leadership, emphasizing the amount of personal time and effort she put into the company and her belief in its mission.

“I don’t have a lot of understanding for—and I don’t know if this is what you’re doing—but if you were drumming up discontent, that feels like you don’t trust me,” she said. “That feels like a slap in the face, and it’s hard to hear. And the other thing I would say—and I know this is going to be a lot harsher—and so I appreciate you saying you like Foodlink because that matters to me. Because what I would say if you came in here and just had a list of complaints and didn’t believe in us—I would say no one’s keeping you here.”

Robinson testified that he took those comments as being directed at him, and that they constituted a suggestion for him to leave if he did not like working at Foodlink. The NLRB Region 3 office cited this as a National Labor Relations Act violation in its April email.

“My criticisms and concerns are rooted in furthering the mission,” he said to Tedesco. “I’m really sorry that it would appear otherwise, or especially that you would receive that as a questioning of your leadership and your dedication, which is really obvious.”

Robinson also voiced concerns during the meeting about the recent firing of two workers of color, with Tedesco arguing in response there was documented evidence of them not carrying out their jobs.

She told Robinson that she was tired of rhetoric and wanted to see actual work done. He cited a proposal he wrote with input from other workers about how to “improve racial equity and working conditions at Foodlink,” the affidavit states. He said he gave the report to a supervisor, who liked it and passed it up another level. He then said he stopped getting any feedback on it. Tedesco said she never saw the report, that the supervisor was probably busy, and that Robinson should have continued prodding about it.

“All of that is fair, I appreciate that you wrote something,” Tedesco said. “It sounds like you did everything the right way, you passed it up, and I would also be frustrated about that. But here’s my advice to you. (Foodlink founder) Tom (Ferraro) used to have a phrase, like, ‘Don’t be someone that collects injustices.’ And he was talking about daily stuff, he wasn’t talking about the big injustices, but he was talking about someone that harbors stuff.”

When contacted by the Beacon, Tedesco was asked to comment on her identification of criticism of Foodlink with criticism of herself and on her response to Robinson’s report during the meeting. She did not address these points directly since both are aspects of the affidavit not contained in the NLRB charges and thus covered by her statement that “those assertions contain false information and innuendo, and the portrayal of the culture and the character of our leadership is distorted, false and lacks credibility.”

Robinson testified that the meeting ended without any resolution.

Organizing efforts

The first union organizing committee meeting was held at Robinson’s house shortly after his meeting with Tedesco. Five other workers were present, his affidavit states, and they agreed to start getting more people involved. Organizing committee meetings continued every Tuesday through the first half of 2021.

In July 2021, Robinson learned that Foodlink’s contract with a program funding 45 percent of his and three other coworkers’ positions was ending early, he testified. He met multiple times with those coworkers about how to approach their impending meeting with their bosses, and they agreed to “stick together” and advocate for jobs for themselves based on their strengths.

They entered a meeting with Tedesco and a supervisor, and Tedesco informed them of the contract termination and invited them to apply for other positions, particularly a community health educator role, Robinson’s testimony continues. He and one other coworker asked when the decision to end the contract was made and why Foodlink was creating only one new job, in the hopes of determining whether Foodlink could create more jobs for them since Tedesco “acknowledged (they) were valuable employees.”

It was at this point that the meeting escalated, Robinson testified. His testimony about this meeting was corroborated in an interview with another employee present.

“After about five minutes of questions, Tedesco began to escalate the situation by snapping and raising her voice,” the affidavit states. “When we asked when the decision was made, she said it was none of our business. She told us we were not entitled to work at Foodlink. Her tone became confrontational.”

Robinson said he then asked how the layoffs adhered to Foodlink’s strategic plan.

“Tedesco replied that this is what I did, carry around the strategic plan ready to argue and twist words,” the affidavit continues. “I also referenced the part of the plan about retaining and advancing (people) of color in their careers and asked how she justified firing three (people) of color.

“Tedesco pointed at me and said that time and time again I spoke on behalf of people of color … and that it was offensive. At this point (one coworker) got up and left the room and said (they) could not do this. I went to check on (that coworker) but then came back to the meeting. Tedesco was still talking about how offensive it was for me to speak on behalf of (people) of color. She said that it seemed like we did not even want to work at Foodlink.”

Robinson, who is white, testified that he did not raise his voice or say anything inappropriate during the meeting, and that the supervisor in the room said “Tedesco’s behavior was the most inappropriate thing (the supervisor) had ever seen in the workplace.” That supervisor filed a human resources complaint about Tedesco’s conduct in the meeting, he said.

In his affidavit, Robinson said he preemptively cleaned out his desk at the end of the day of the meeting because he felt he would be fired and did not want to have to come back the next day to do it. He said that he got a call from HR that evening saying he was fired due to his behavior in the meeting and the fact that he already cleaned out his desk, which “indicated to the Employer that (he) was no longer capable of performing (his) job duties.” 

HR did not tell him what he said during the meeting that warranted his firing, and Tedesco did not comment to the Beacon on a request to explain the reasoning. Robinson also stated that the firing “galvanized” some workers to participate in the organizing more fully, but that at least 10 people told him directly that his firing led them to no longer want to be involved.

The union campaign continued after Robinson’s firing, and it was met with a counter by the company. Six of the labor violations that allegedly took place occurred after his firing.

“The anti-union campaign was a series of coordinated actions by people who believed they were above criticism and above the law, a campaign executed to protect their power and their immunity from accountability which they’d come to expect and to abuse,” Robinson said in his Aug. 19 statement.

The organizers never formally filed for an election. In an interview, Robinson said they did not meet OPEIU’s support threshold to file. The NLRB requires 30 percent of workers to sign authorization cards in order to file for a union election, but many unions target higher thresholds to insulate against lost support during the election period.

Goldstein says that OPEIU is not currently in contact with any Foodlink workers, but that the door is open for other unionization attempts.

“We will not go away,” he says.

Justin O’Connor is a former Rochester Beacon intern and a student at University of Rochester. The Beacon welcomes comments from readers who adhere to our comment policy including use of their full, real name.