Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employee’s mass emails involved personal gripes so not concerted protected activity, (May 20, 2026)

By Ronald Miller, J.D.

The Board has held that activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

A three-member panel of the NLRB adopted an administrative law judge’s dismissal of allegations Apple, Inc., violated Section 8(a)(1) of the NLRA by threatening, coercing, and interrogating an employee about sending mass emails, and threatening discipline if the employee sent additional emails. The Board found the employer’s communications to the employee were not in response to protected concerted activity, nor would any employee have reasonably perceived the communications as limiting their right to engage in protected concerted activities going forward. Additionally, the Board adopted the ALJ’s dismissal of an allegation the employer violated Section 8(a)(1) by disciplining and discharging the employee based on the ALJ’s finding that the General Counsel failed to establish the employee engaged in concerted activity (Apple, Inc., 374 N.L.R.B. No. 109 (May 13, 2026)).

Technical flaw. The employee began working for Apple as a software engineer on January 26, 2015. She worked on Project Alloy, an engine that supported a fraud-prevention platform used across Apple. In April of 2020, the employee found what she perceived to be a critical technical flaw in Project Alloy. Team members, including the employee, and her manager, disagreed on the best path forward to deploy the project. The employee had great difficulty moving on from the April 2020 incident.

Transfer. On June 6, 2020, the employee was transferred to another team. It was explained that the transfer was not a demotion but occurred due to an alignment between her performance engineering skills and the organization’s need to migrate certain software to run on Amazon Web Services. The employee’s job title and pay did not change in any way after her transfer. She continued to work on Project Alloy while reporting to a different manager.

Since the April 2020 incident, the employee grew increasingly concerned with workplace culture—both on a personal level in how she began to be treated and on an organizational level in how business and technical decisions were made. Throughout 2021, she began to believe that her code contributions were being blocked, and there were increasing delays in getting team members to review her code. Additionally, she believed she increasingly experienced fewer opportunities for collaboration with team members and customers.

Formal complaints. Beginning in January 2022, the employee filed four complaints in January, March, and April 2022 about her concerns and treatment through Apple’s Employee Relations (ER) portal. During the months of the investigation, a manager was made aware of the employee’s harassing behavior in public forums. ER determined there was no merit to the employee’s personal claims and dismissed all her complaints. Nonetheless, she continued to email ER about her concerns around the investigative process and how her complaints were handled.

Mass emails. On June 6, 2022, the employee sent a mass email to 164 people. Most individuals had no history of working with the employee and/or they did not know why she was sending these mass emails to them. In the mass email, she once again communicated her personal gripes about Apple’s management and alleged what had happened to her since the April 2020 incident.

On June 8, 2022, she sent another mass email. As with the previous mass email, this email communicated the employee’s personal disagreements to Apple management. Also on June 8, an ER representative reached out to the employee following her two mass emails. The employee was advised that her emails were disruptive to the organization and asked what she wanted.

On June 20, 2022, the employee sent a third mass email to all recipients of her first two mass emails, this time adding select Apple higher-level executives. On October 19, 2022, she sent her fourth and last disruptive mass email. Thereafter, on October 24, she sent a mass Slack message.

Protected activity. The main question in this case was whether the employee was discharged because of her protected concerted activities. In general, the test for evaluating whether an employer’s conduct or statements violate Section 8(a)(1) is whether the statements or conduct have a reasonable tendency to interfere with, restrain, or coerce protected activities. Thus, the inquiry was whether the employee engaged in protected concerted activity when she began to complain to her immediate managers and their supervisors about a disagreement and personal gripe she had against her supervisors that began in April 2020.

Here, the employee’s mass emails and Slack message to employees, many of whom were unrelated to her work and personal complaints, always went back to the April 2020 incident and events in 2021 and 2022, more than six months before she filed her November 3, 2022, charge in this case. Thus, the ALJ concluded that the employee’s individual complaints criticizing management were not concerted or protected.

Limitations period. Moreover, the ALJ noted that the employer raised its Section 10(b) affirmative defense in its answer to the complaint and in its closing brief. The ALJ also found there was sufficient notice to the General Counsel that Section 10(b) would be a valid affirmative defense, and it was fully litigated as part of a May 2024 hearing. Thus, all unfair labor practices alleged in the complaint dated before May 7, 2022, were barred by the six-month statute of limitation of Section 10(b).

Concerted activity. Even if the employee’s alleged activities were not barred by the six-month statute of limitations, her unilateral complaints and disruptive mass emails and Slack message in January, June, and October 2022 were her personal gripes and disagreements with management and not a protected concerted activity. The Board has held that activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

Here, the ALJ found that the employee’s formal complaints in early 2022, which were fully investigated and dismissed by the employer, her four disruptive mass emails, and her October 24 Slack message amounted to increasingly aggressive ridicule of the employer’s management without there being an ongoing labor dispute present. Thus, there was no evidence the employee was engaged in concerted or group action or was acting in any way on behalf of any fellow Apple employee at that time with similar unfair labor claims.

Discipline and discharge. Moreover, the discrimination charge and complaint allegations involving the employee’s disruptive mass emails and her Slack message were limited to her unilateral disagreement with Apple management during Project Alloy and any expansion for personal gripes through her formal complaint and mass emails and Slack message in 2022 were not credible. The employee did not approach any of her coworkers with her personal gripes or disagreements or solicit or seek their help before she aggressively escalated her complaints with her disruptive mass emails and Slack message of her personal criticisms of Apple’s managers and Project Alloy. The totality of the record evidence demonstrated that the employee’s conduct centered on her personal disagreements about Project Alloy. Accordingly, the ALJ found that the General Counsel’s allegations concerning her discipline and discharge should be dismissed.

The slip opinion is 374 NLRB No. 109.

Attorneys: Ezera Miller-Walfish for General Counsel. Jennifer G. Betts (Ogletree Deakins) for Apple, Inc.

Companies: Apple, Inc.

Cases: Labor UnfairLaborPractices Discharge Procedure AgencyNews