Apple stomped all over NYC store workers' union rights judge rules - The Register

Apple destroyed union flyers and interrogated its staff in New York City about their unionization efforts, a watchdog has ruled.

In a decision issued yesterday, National Labor Relations Board judge Lauren Esposito said Apple broke American employment law in an "unprecedented manner" at its World Trade Center store.

As such, she ordered Apple to cease and desist from interrogating employees regarding unionization and other protected activities; and blocked it from removing pro-union flyers from the employee break room.

Apple must also post a notice to employees at the WTC store of the decision and their rights along with its pledge not to suppress organizing. Apple didn't respond to a request for comment.

Like multiple other Apple stores around the US, staff at the WTC store sought to organize with the Communication Workers of America. Other Apple stores, including another in New York City, have opted to organize under Workers United and the International Association of Machinists and Aerospace Workers, the latter of which succeeded in a vote to form an Apple retail employee union in Maryland last year.

Apple arguments undercut by own evidence

The WTC store, located across the street from the 9/11 memorial site and new World Trade Center building, kicked off its union organizing drive in May of last year in concert with several other Apple retail locations whose staff sought labor representation.

In a subsequent complaint to the NLRB, the watchdog was told a manager at the WTC store buttonholed an employee to ask him about his union-organizing efforts, and that bosses repeatedly removed union flyers from the store's breakroom, an off-duty area where the NLRB has long held such material must be allowed.

Regarding the he-said-she-said nature of the aforementioned conversation between the worker and manager, Judge Esposito said she believed the employee's account over Apple's for several reasons. Among them, Esposito said the employee, who still works for Apple, "testified in a manner adverse to his own pecuniary interest by contradicting Apple's own witnesses," thus making him more credible. The staffer put his neck on the line by speaking out, in other words.

Esposito also noted that the employee withheld from his manager information about his relationship with union organizers when asked what he thought of the unionization drive. That, the judge said, "supports a determination that the questioning was coercive in nature." Thus Apple broke the law with its coercive probing of the worker regarding unionization.

As for the posters being trashed, the iGiant and the employees who filed the complaint both provided continuous surveillance footage from the breakroom that showed flyers were removed from the space in violation of labor laws that protect union activity in non-work areas. 

When the WTC union drive kicked off in May, employees left pro-union flyers on tables in the breakroom on multiple occasions, and CCTV footage from the room and recordings made by employee union organizers showed the posters were removed by bosses "on May 15, 2022, May 27, 2022, June 1, 2022, and on or about May 30 or June 2, 2022," based on video footage.

Apple made two arguments justifying its removal of the flyers: that they violated its solicitation policy and its cleanliness standards, neither of which Esposito bought. 

In the case of solicitation, Apple argued that its breakrooms are analogous to bulletin boards, and thus no non-business material can be posted - only corporate notices to employees. The judge, however, said there's already a bulletin board hanging outside the breakroom. 

"Thus, Apple's argument that the breakroom table constituted some sort of 'Apple system (electronic or physical)' which could not be used 'to distribute materials or solicit employees' pursuant to its Solicitation and Distribution Policy is not compelling," Esposito determined. 

As to the cleanliness excuse, Apple said it has a long-standing process of sending managers into breakrooms for regular cleanliness inspections and to pick up garbage or abandoned items when spotted. 

However, the video footage - provided by both parties, no less - contradicted Apple's claims, Esposito said. 

"Specifically, the May 15, 2022 video shows at its very inception approximately three bottles and several other items on the breakroom table. While several managers… enter and exit the breakroom almost immediately after the recording begins, none of them remove these items from the breakroom table," Esposito noted in her decision.

"The May 15, 2022 video does not show any of the several managers who enter and exit the breakroom cleaning, tidying, or organizing the breakroom in any way."

They didn't tidy up, and the footage does catch several managers removing union flyers from the room while leaving other items behind. "The videos conclusively demonstrate that when Apple managers removed union flyers from the breakroom table, they did not do so as part of some overall effort to clean or organize the breakroom," the judge concluded. 

A bushel of labor complaints still outstanding

The WTC case is the first administrative law judge decision the NLRB has made of its many outstanding cases filed against Apple, the board told us.

Cases filed against Apple in Atlanta, Oklahoma City, and its home base of Cupertino, California, are ongoing, while a case in St Louis was recently settled out of court. The NLRB has only certified unions at two Apple locations in the US: Towson, Maryland, and Oklahoma City.

NLRB regional teams are working through 23 additional unfair labor practice cases leveled against Apple, though those claims could be dismissed or withdrawn before they eventually reach trial, the board said. 

Apple and its accusers at the WTC store have until July 18 to appeal the decision, after which time the NLRB will adopt Esposito's order to Apple to shape up and get on the right side of the law. ®

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