Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—5th Cir.: NLRB erred in finding that Apple unlawfully interrogated employee, removed union literature, (Jul 8, 2025)

By Jason Albright, J.D.

“[S]enior managers maintained that the flyers were removed without regard to their pro-union content.”

The NLRB erred in finding that Apple Inc. unlawfully interrogated an employee and unlawfully removed union literature from a breakroom, the Fifth Circuit held. Substantial evidence, according to the federal appeals court, did not support the Board’s findings that the alleged “interrogation”—which occurred in a public setting on a sales floor during a routine managerial check-in—was coercive. And just days before the union flyers were removed, an Apple manager similarly removed a set of flyers left by a departing employe advertising his going-away party. Judge Douglas concurred (Apple Inc. v. NLRB, No. 24-60242 (5th Cir. July 7, 2025)).

Apple store near World Trade Center. The case involved the Apple store near the World Trade Center in Manhattan, where two employees formed an organizing committee in coordination with the Communication Workers of America in early 2021. Between January and May 2022, the first organizer regularly discussed wage increases with his coworkers. In April, he raised the issue with a senior manager, who referred him to Apple’s HR department, and he later met with an HR representative.

Conversation with manager on sales floor. On May 9, 2022, a senior manager approached him on the sales floor—a space open to the public—shortly before the start of her own shift. It was the manager’s routine practice to speak with employees on the sales floor at the beginning of her shift—a practice she had followed with the organizer in the past.

That day, she asked him how he was doing and mentioned that she had heard he had met with HR. He replied that the meeting had gone well and that they had discussed his interest in securing higher pay for Apple employees. According to the organizer, the manager then asked whether he had spoken with other employees about higher pay. He said that he had.

He further testified that the manager asked how many employees he had spoken with, to which he responded that he was not keeping track.

What do you think about unionization? According to the organizer, she then asked what he thought about the unionization efforts at Apple. He responded that his name had been linked to union activity, but that he did not want to be associated with something he was not involved in. He further testified that the manager replied by assuring him that Apple would ultimately “do the right thing.” He also stated that he did not disclose his role in the organizing committee because, at the time, the group was deliberately keeping its efforts “under wraps.”

Senior manager’s account. The senior manager’s account of the sales-floor interaction “diverged from [the organizer’s] in at least one material respect,” according to the Fifth Circuit. She testified that it was the organizer—not she—who first raised the topic of unions, doing so in response to her routine inquiry about how his day was going. She said, however, that he appeared upset that his name had been linked to pro-union activity. She testified that she told him employees are permitted to discuss unionization and that she asked why such conversations would trouble him. She also recalled asking the organizer about his recovery from a recent knee injury.

Other organizer alerted. After speaking with the manager, in any event, the organizer told the second organizer that she had asked his opinion on unionization. And he later told another senior manager that someone had inquired about his views on unionization, though he declined to identify who.

Campaign goes public. Six days later, on May 15, 2022, the organizing committee made its union campaign public. The two organizers began wearing red bracelets bearing the union’s initials and distributed them to coworkers—without interference from Apple. They also handed out union flyers outside the store and placed additional flyers on a table in the employee breakroom.

Union flyers photographed, then removed. Fifteen minutes after the first flyers were placed, an Apple manager photographed them before leaving the breakroom. About an hour later, the store manager entered the breakroom and removed the flyers.

Flyers replaced then removed again. During their lunchbreak, the two organizers replaced the flyers, only for a different manager to remove them minutes later. Roughly an hour after that, the second organizer placed more flyers on the table but removed them voluntarily a few minutes later after conferring with the first organizer.

Apple’s policies. Apple did not prohibit employees from handing out union flyers, but it maintained that two policies barred leaving materials unattended on the breakroom table. First, Apple pointed to a general housekeeping and cleanliness practice aimed at keeping the store—located, as it asserted it was, in a high-profile area of New York City—“grand opening ready every day, every minute,” including in nonpublic areas. This policy, however, was unwritten. As part of the practice, store leaders routinely removed visible trash to “convey ownership over, and pride in, the workplace.”

Second, Apple invoked its official Solicitation and Distribution Policy, which is written and states, “As an Apple employee, you’re not permitted to solicit other employees—including for your own hobbies or business (such as jewelry, makeup, personal training services), charitable campaigns or political causes—during work time.” The policy indicates that employees “may not distribute material during work time or in a work area.” And [t]hird parties are not permitted to distribute materials or solicit employees, vendors, or customers on Apple property at any time.” Finally, “Employees may not use Apple’s bulletin boards to distribute materials or solicit employees, vendors, or customers. In addition, third parties may not use any Apple system (electronic or physical) to distribute materials or solicit employees, vendors, or customers.”

Newspapers and coupons, however…. According to the Board and several Apple employees, however, “there are often newspapers on the breakroom table,” and “[c]oupons for Shake Shack and Burger King have sat on the table throughout a shift.”

Deterred again. After the flyers were removed on May 15, the store leader spoke with the first organizer about Apple’s cleanliness standards and its non-solicitation policy. He later texted the organizer a copy of the policy. Although the organizer disagreed that the flyers violated either policy, he nonetheless stopped leaving them in the breakroom.

Shredded as well. The second organizer resumed placing flyers in the breakroom on May 27 and again on June 1, but on both occasions, senior managers removed the flyers within minutes. In some instances, managers shredded the flyers after removing them.

The senior managers maintained, however, that the flyers were removed without regard to their pro-union content. They testified that the removals were not intended to oppose unionization but were consistent with their general practice of clearing materials from shared spaces to maintain cleanliness and adhere to Apple’s policies.

ULP charge and administrative complaint. On May 18, 2022, the union filed an unfair labor practice charge. Later that year, the Board issued an administrative complaint based on the charge. The complaint alleged that Apple violated Section 8(a)(1) by unlawfully interrogating employees about their union support and other protected concerted activities. It further alleged that Apple violated Section 8(a)(1) by selectively and disparately enforcing its Solicitation and Distribution Policy and by prohibiting employees from leaving union flyers on the breakroom table.

ALJ’s findings and Board’s decision. After a two-day hearing, an ALJ sustained both charges. Significantly, the ALJ credited the first organizer’s account of the May 9 conversation on the sales floor as opposed to the senior manager’s account, noting that the organizer’s “account of their conversation did not include [some] statements.” The ALJ credited only one aspect of the manager’s testimony: that she approached him “in connection with her general practice of briefly speaking with each employee on the sales floor at the beginning of her shift.”

Apple filed exceptions to the ALJ’s decision, but the Board adopted it on May 6, 2024 and ordered Apple to cease and desist from the violations and to post a remedial notice.

Petition for review and cross-application for enforcement. Apple petitioned the Fifth Circuit for review, contending that the senior manager did not coercively interrogate the organizer. Apple argued that, in any event, the manager’s statements were also protected by the First Amendment. Finally, Apple argued that it enforced its breakroom policies consistently and without regard to content. The Board cross-applied for enforcement, and the union intervened.

Unlawful interrogation. Granting Apple’s petition for review and denying enforcement, the Fifth Circuit first found that substantial evidence did not support the Board’s findings that the alleged “interrogation” was coercive. Apple had no history of hostility or discrimination toward union activity, the appeals court observed, and the alleged “interrogation” occurred in a public setting—on the store’s sales floor—during a routine managerial check-in. The manager also “expressly reaffirmed [the organizer’s] right to discuss unionization.” Finally, “Crucially, even crediting [the organizer’s] account, neither the ALJ nor the Board meaningfully engaged with [the manager’s] testimony, which provided critical context.”

Removal of union flyers. Finally, the Fifth Circuit concluded that the Board also erred in finding that Apple selectively enforced its two—unwritten and written—policies on general housekeeping, on one hand, and non-solicitation, on the other. Apple argued that it applied both policies evenhandedly, and the court found that the record supported its account. “Apple managers cleared a variety of nonunion items from the breakroom, including restaurant menus, coupons, and promotional or personal flyers,” observed the Fifth Circuit. And “In some cases, employees who left such items behind were informed that doing so violated the Solicitation and Distribution Policy.”

“Most telling of all,” noted the court, “just days before the union flyers were removed, an Apple manager addressed a set of flyers left by a departing employee advertising his going-away party. Those flyers, too, were removed, with managers explaining that they violated company policy and Apple’s ‘standards in the space.’” The company also allowed employees to distribute union bracelets and flyers during nonwork time and in nonwork areas. “What Apple prohibited was not distribution, but the practice of leaving materials—union-related or not—unattended in the breakroom.”

Concurrence. In her concurrence, Judge Douglas agreed that the Board erred, but she wrote separately to indicate that the court “need not reach the Board’s alternative finding that the general housekeeping policy was selectively enforced against union flyers because the flyers were not removed pursuant that policy.” Instead, she said, “the Board’s finding that Apple unlawfully confiscated union literature turns on whether the company selectively enforced its non-solicitation policy,” and she agreed with the majority that substantial evidence did not support the Board’s finding of selective enforcement as to it.

The case is No. 24-60242.

Judge: Willett, D.

Attorneys: Michael E. Kenneally (Morgan, Lewis & Bockius) for Apple Inc. Ruth E. Burdick for the NLRB.

Companies: Apple Inc.

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