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February 11, 2007

Long Treated as Volunteers, Tips-Only Supermarket Baggers Take Up Fight for Hourly Wage


They are a fixture across New York City, giving shoppers a welcoming smile and a helping hand as they assist cashiers in packing everything from apples to zucchinis. 

In many supermarkets, managers treat these baggers as volunteers, not paying them wages and making them rely on tips.

But now, in a new front in the wage-and-hour wars, many baggers are speaking up, insisting that they are employees and should be paid like other supermarket workers. Call it the baggers' rebellion — a rebellion that involves lawsuits, street protests and a boycott.

For eight months last year, Anton Bing, a 34-year-old Brooklyn native, bagged groceries at a Pioneer Supermarket in Brownsville.

"All I got paid was tips," Mr. Bing said. "I worked six hours a day, and I got $25 to $30 a day in tips at most."

His tips averaged $4 to $5 an hour, less than the state minimum wage, which was $6.75 an hour last year, rising to $7.15 on Jan. 1. Mr. Bing, a laid-off carpenter who is getting by with the help of food stamps, said he continued as a bagger because he was having a hard time finding other work.

In early January, he said, the supermarket began paying him an hourly wage, but only after he complained to the New York State attorney general.

Anthony Fernandez, the supermarket's manager, denied Mr. Bing's claims, saying his supermarket has always paid its six baggers the proper wage for all hours worked.

In New York, baggers come in many forms. Some, like the newspaper delivery boys of old, begin at the age of 11 or 12, expecting only tips to help them buy candy and soda. Others, like Mr. Bing, become baggers as adults to help make ends meet.

"In the past we saw this just as a summertime problem involving kids, but more and more we're seeing adults not getting paid for working as baggers," said Patricia Smith, former director of the attorney general's labor bureau and now Gov. Eliot Spitzer's nominee to be labor commissioner.

(Make the Road by Walking members) Ramon and Tomacina Nuņez said they encountered a tips-only policy while working at an Associated Supermarket in Bushwick, Brooklyn.

"On days it was slow, I'd make $10, 12, $14, $16, and when it was busier, I'd make $26 or $30," said Mrs. Nuņez, 70, a Dominican immigrant who said she normally bagged groceries from 8 a.m. to 9 p.m. "Some people would give me pennies and nickels as tips. What could you do but laugh?"

Mrs. Nuņez said she and her 78-year-old husband, Ramon, remained as baggers largely because they have a very ill 37-year-old son in the Dominican Republic who needs money.

"I thought at my age, no one would give me a job better than this," she said.

The Nuņezes said they were fired last fall after they complained to the attorney general's office. But under pressure from the attorney general and a community group, Make the Road by Walking, the supermarket rehired them and began paying them wages.

Joseph S. Rosenthal, a lawyer for Associated, said: "There are only allegations. There's no determination of any judicial or administrative body that the allegations are true."

Organizers from the Retail, Wholesale and Department Store Union are visiting dozens of supermarkets to meet with unpaid baggers, to pressure managers to pay them properly and to help rally grocery workers to unionize.

"It's a big problem, and it seems to be concentrated in the ethnic supermarkets," said Jeff Eichler, the union's organizing director. "Unfortunately, it's become an accepted practice in some neighborhoods, partly because enforcement has been minimal."

Several years ago, Gristedes and Food Emporium each agreed to $3 million settlements after the attorney general accused them and their delivery companies of paying some deliverymen $75 for a 60-hour week, or just over a dollar an hour, before tips. Managers asserted that the deliverymen were independent contractors and thus not protected by minimum wage laws.

"When we did the deliverymen cases, we thought we had solved the minimum wage violations at the large supermarket chains, but now we're seeing it in the small, franchise supermarkets," said Ms. Smith, the labor commissioner nominee.

Luz Ordoņez, an immigrant from Ecuador, is one of seven baggers who sued the Food Bazaar at 21 Manhattan Avenue in Williamsburg, Brooklyn, accusing the owner, the Bogopa Service Corporation, of not paying her any wages for three years.

"Our pay was the tips," she said. "They'd say, 'We don't pay you guys.' "

Ms. Ordoņez, who joined a picket in front of the store yesterday, said she typically received $25 in tips during her eight-hour shifts. Many days, she said, the baggers were not given any breaks.

Bogopa's chief executive, Hwee Ill An, and its general counsel, Shaun Reid, did not respond to six telephone messages. When nine baggers at another Food Bazaar sued the company last year for $1.56 million, Bogopa officials said that they had paid all employees more than the minimum wage. Both suits are still unresolved.

In Bushwick, Make the Road by Walking has sponsored large protests outside the Associated on Knickerbocker Avenue to urge the owner to pay back wages to the Nuņezes and 30 other workers it says have suffered minimum-wage or overtime violations.

Andrew Friedman, Make the Road's co-director, said his group was working with Attorney General Andrew Cuomo to pressure the Associated to pay more than $1 million in back wages.

The group has been urging Bushwick residents to boycott the supermarket, and Anthony Espinal, one of the store's owners, acknowledged that the boycott was hurting.

"They've been saying things about us that aren't true," he said.

He said the packers were just volunteers. "They can come in whenever they want," he said. "They were customers from the store. They didn't want to stay home. They wanted some money, so they helped with the bagging."

Jennifer Brand, a lawyer in the attorney general's labor bureau, said the baggers were employees, not volunteers. She said they typically work under management's control and are assigned specific shifts.

"Even if you took the position that these people just came in and were just permitted to be there, instead of being actively hired, they would still be considered employees under the minimum wage law and would not be permitted to volunteer only for tips," she said.

Mr. Bing, who once took an 800-hour training course in carpentry, said he would rather be working as a carpenter than as a bagger.

"I used to make $14 an hour as a carpenter," he said. "Illegal immigrants came in and snatched my job away from me. They would often work for $4 an hour."

Although he is pleased that the supermarket has started to pay him, Mr. Bing said it paid him for just four hours of work even when he worked eight hours some days.

"This exploitation is happening all over the city," he said. "If there is some way I can help to stop it, I want to help. I'm not speaking out just for me. There are a lot of people in the same position."

 


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