Union busting lawsuit planned, as battle between Apple and its store staff intensifies

Apple faces the prospect of a union busting lawsuit, over alleged illegal activities designed to persuade Apple retail staff to abandon plans to unionize. It follows two formal complaints about the company breaking the law in the US.

Union organizers are collecting information on anti-union moves in order to prepare a case. It comes shortly after staff at the St Louis Apple Store suspended unionization plans in the face of what was described as “increased hostility” toward workers …

Background

We first learned of retail staff plans to unionize back in February. Things progressed in April, with a formal start to the process at Apple’s flagship Grand Central Terminal store in New York, with a number of goals for a better deal for staff. This was followed by similar moves in Atlanta and Maryland, before expanding internationally to the UK and Australia.

Apple has so far reacted aggressively, hiring the same union-busting lawyers employed by Starbucks. The company is now facing multiple accusations of using illegal union-busting techniques. Employment experts have warned that these techniques can work, but may have long-lasting negative consequences.

Apple’s actions have so far led at least two stores to suspend their unionization efforts, both citing intimidation by management. The first was the Atlanta store, back in May, and the St. Louis store doing the same just last week.

Union busting lawsuit planned

The global Apple support network, AppleTogether, is working with the UK union United Tech & Allied Workers (UTAW) to gather information on tactics used by Apple management to try to fend off unionization moves. It tweeted that a class action lawsuit is “in the works.”

Are you experiencing union-busting in your Apple store? Aggressive, anti-union talk during your daily downloads? Pulled aside and intimidated about organizing?If so, fill out this anonymous survey and let us know. A class action lawsuit is in the works.

The UTAW said that while the planned lawsuit was for the US only, it is continuing to support unionization of UK Apple Store workers.

Our rights in the UK are slightly different, but for US comrades fill this out if you see your management taking any anti-union action.

UK folks DM us and we’ll help out with the relevant next steps. Joining a union and talking about your union is your right.

Union busting legal position

In the US, the National Labor Relations Act (NLRA) gives employees the right to form unions, and makes it illegal for employers to use tactics intended to sabotage these actions.

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

The NLRB gives a lengthy list of tactics which would fall foul of this law:

• Threaten employees with adverse consequences, such as closing the workplace, loss of benefits, or more onerous working conditions, if they support a union, engage in union activity, or select a union to represent them.
• Threaten employees with adverse consequences if they engage in protected, concerted activity. (Activity is “concerted” if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. It includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is “protected” if it concerns employees’ interests as employees. An employee engaged in otherwise protected, concerted activity may lose the Act’s protection through misconduct.)
• Promise employees benefits if they reject the union.
• Imply a promise of benefits by soliciting grievances from employees during a union organizing campaign. (However, if you regularly solicited employee grievances before the campaign began, you may continue that practice unchanged.)
• Confer benefits on employees during a union organizing campaign to induce employees to vote against the union.
• Withhold changes in wages or benefits during a union organizing campaign that would have been made had the union not been on the scene, unless you make clear to employees that the change will occur whether or not they select the union, and that your sole purpose in postponing the change is to avoid any appearance of trying to influence the outcome of the election.
• Coercively question employees about their own or coworkers’ union activities or sympathies. (Whether questioning is coercive and therefore unlawful depends on the relevant circumstances, including who asks the questions, where, and how; what information is sought; whether the questioned employee is an open and active union supporter; and whether the questioning occurs in a context of other unfair labor practices.)
• Prohibit employees from talking about the union during working time, if you permit them to talk about other non-work-related subjects.
• Poll your employees to determine the extent of their support for a union, unless you comply with certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
• Spy on employees’ union activities. (“Spying” means doing something out of the ordinary to observe the activity. Seeing open union activity in workplace areas frequented by supervisors is not “spying.”)
• Create the impression that you are spying on employees’ union activities.
• Photograph or videotape employees engaged in peaceful union or other protected activities.
• Solicit individual employees to appear in a campaign video.
• Promulgate, maintain, or enforce work rules that reasonably tend to inhibit employees from exercising their rights under the Act.
• Deny off-duty employees access to outside nonworking areas of your property, unless business reasons justify it.
• Prohibit employees from wearing union buttons, t-shirts, and other union insignia unless special circumstances warrant.
• Convey the message that selecting a union would be futile.
• Discipline or discharge a union-represented employee for refusing to submit, without a representative, to an investigatory interview the employee reasonably believes may result in discipline.
• Interview employees to prepare your defense in an unfair labor practice case, unless you provide certain assurances. You must communicate to the employee the purpose of the questioning, assure him against reprisals, and obtain his voluntary participation. Questioning must occur in a context free from employer hostility to union organization and must not itself be coercive. And questioning must not go beyond what is needful to achieve its legitimate purpose. That is, you may not pry into other union matters, elicit information concerning the employee’s subjective state of mind, or otherwise interfere with employee rights under the Act.
• Initiate, solicit employees to sign, or lend more than minimal support to or approval of a decertification or union-disaffection petition.
• Discharge, constructively discharge, suspend, layoff, fail to recall from layoff, demote, discipline, or take any other adverse action against employees because of their protected, concerted activities.

Apple has been accused of using a number of these tactics, in conflict with both the law and the company’s claimed values. Two formal charges have been filed against the company.

9to5Mac’s Take

Whatever your personal view on unions, it’s clear that this battle between Apple and some of its own employees is only going to grow. Apple risks not only alienating retail store staff – the public face of the company – but also damaging its brand image as a company with humanistic values. A union busting lawsuit will create greater public awareness of the dispute.

We continue to urge Apple to engage with staff, treating the movement as an opportunity rather than a threat.