Apple (AAPL) has until Friday to challenge the first-ever union victory for its U.S. workers, and labor experts caution that it could threaten its public image and trigger a drawn-out battle if it fights the results.
Apple’s retail store workers at Maryland’s Towson Mall sealed the historic win on Saturday, becoming the only U.S. workers in the company’s 46 years to gain the right to labor representation. The final vote tally showed 65 of the store’s 112 eligible workers in favor of unionization, and 33 against.
Given the ballot tally overwhelmingly in support of unionization, labor expert Ileen DeVault cautioned that Apple would face an uphill battle if it argued to delegitimize worker’s votes.
The labor movement has gained new momentum in the post-COVID economy, with the tight job market giving employees new leverage and the pandemic creating challenging working conditions for those deemed "essential." Workers at 150 Starbucks (SBUX) stories nationwide have unionized, as have workers at an Amazon (AMZN) warehouse in Staten Island, NY. Amazon and Starbucks are both challenging the results.
The reality is that most losing employers do object, according to Michael Oswalt, a labor lawyer and law professor at Wayne State Law School. Still, he said, an Apple objection isn't inevitable. He emphasizes that the sizable majority in favor of representation combined with the intense and lengthy election campaign that preceded it makes it difficult for Apple to claim the outcome was unfair.
“I would hope that after a multi-week campaign, where Apple had a chance to express its views to its employees in one-on-one, group, and large settings, at any and all times during the workday, the company would recognize that its workers are in favor of collective bargaining and respect that decision by negotiating a contract,” he said.
Apple declined to comment on whether it would challenge the outcome.
Labor strategy has become more challenging for companies since the pandemic, according to DeVault and Oswalt. Worker sentiment, they say, now sways more heavily in favor of worker protections, especially from those who served as essential workers through the pandemic. And public sentiment may have shifted to empathize with workers too, given that consumers shared in the pandemic experience.
“During a pandemic, when you were asking people to show up for their jobs, which are jobs standing across the counter from with a bunch of people who might, or might not, be infected with what was at the beginning, a very deadly disease, they were still expected to do it,” DeVault said.
The shift should already be pushing employers to reconsider how they react to unionization, Oswalt said.
“I think that the last six months have shown that the standard union avoidance playbook is simply not working among the current generation of employees,” Oswalt said. “It is failing spectacularly at Starbucks, it failed at a massive Amazon warehouse…and it just failed at Apple.”
Michael Duff, a professor for University of Wyoming College of Law, says while he agrees that today's sweeping push to unionize is unusual, neither worker nor public sentiment is likely enough to keep Apple from objecting to the Maryland vote. Under current law, he explains, it still makes business sense for Apple to raise a challenge.
“It's almost unthinkable to me that an employer would not challenge,” Duff said. “My guess is that Apple will oppose the union and raise challenges. Why? Because, in these situations, time is almost always the enemy of the union.”
Duff explains that delays are an easy hand for companies to play through objections because the National Labor Relations Board, which hears initial challenges, lacks authority to order a company into action. It's to a company's significant advantage to object, because the delays they cause often frustrate workers into giving up on bargaining. Then, if Apple loses an initial challenge, it can further drag out a resolution by appealing the NLRB's decision to court.
“Relatively few people know that the NLRB does not have the authority to order an employer to do anything. It can issue something called an order, but at the end of the day, that has to be done through the courts,” Duff said.
One factor that Duff says could push Apple into a less aggressive position is the current labor shortage. In February, the tech giant boosted worker pay in an effort to retain employees.
Last month, Apple workers in Atlanta’s Cumberland Mall represented by Communications Workers of America (CWA) withdrew a petition to hold a scheduled election. And employees in the company’s Grand Central retail store in New York are reportedly working to amass enough support to hold an election.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.