Apple Unfair Labor Practices Allegations Overturned on Appeal

Takeaway: The National Labor Relations Act bars employers from interrogating union organizers and discriminating against union distribution of solicitation material in nonwork areas on nonworking time.  

Apple Inc. did not violate the National Labor Relations Act (NLRA) when its managers asked an employee about union efforts and removed and destroyed union fliers from its breakroom, the 5th U.S. Circuit Court of Appeals ruled.

An employee worked at Apple’s retail store near the World Trade Center in New York City from September 2019 through September 2022. He reported directly to the store’s senior managers during his shift. In early 2021, he, along with several other store employees, formed an organizing committee in coordination with the Communications Workers of America labor union. Between January and May 2022, the employee regularly discussed wage increases with his co-workers. In April 2022, he raised the issue with a senior manager, who referred him to Apple’s human resources department, where he met with an HR representative.

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On May 9, 2022, an Apple senior manager approached the employee on the sales floor, a space open to the public, shortly before the start of the first shift. It was the manager’s routine practice to speak with sales floor employees at the beginning of her shift, including the employee. She asked him how he was doing and mentioned that she heard he had met with HR. He replied that they had discussed his interest in securing higher pay for employees. She then asked whether he had spoken with other employees about higher pay, he said yes, and she asked how many. He said that he was not keeping track. She asked what he thought about the unionization efforts at Apple, and he responded that he did not want to be associated with something he was not involved in. She assured him that Apple would ultimately do the right thing.

The manager later testified that it was the employee, not she, who first raised the topic of unions, doing so in response to her routine inquiry about how his day was going. She testified that she told him that employees are permitted to discuss unionization and asked why such conversations would trouble him. She also recalled asking him about a recent knee injury.

Six days after the conversation between the manager and the employee, the organizing committee made its union campaign public, and the employee and other workers began wearing red bracelets bearing the union’s initials and distributed them to co-workers, without interference from Apple. The employee also handed out union fliers outside the store and placed additional flieers on the table in the employee break room.  

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Fifteen minutes after the first fliers were placed, an Apple manager photographed them before leaving the break room. An hour later, a store manager entered the break room and removed the fliers. During a lunch break, the employee and a co-worker replaced the fliers, only for a different manager to remove them minutes later. Roughly an hour later, a co-worker placed more fliers on the table but spoke with the employee and then removed them voluntarily.

On May 18, the union filed an unfair labor practice charge. Later that year, the National Labor Relations Board (NLRB) issued an administrative complaint based on the charge.

Apple did not prohibit employees from handing out union fliers, but maintained that two policies prohibited leaving materials unattended on the break room table. First, it had general housekeeping and cleanliness practices aimed at keeping the store — located in a high-profile area of Lower Manhattan — “grand-opening-ready" at all times, including in nonpublic areas. Store leaders routinely removed visible trash to convey ownership over, and pride in, the workplace.

Second, Apple invoked its solicitation and distribution policy, which stated that Apple employees are not permitted to solicit other employees during work time, including for their own hobbies or businesses, charitable campaigns, or political causes. Additionally, they cannot distribute materials during work time or in a work area. It also stated that employees may not use Apple bulletin boards or any Apple system, electronic or physical, to distribute materials.

According to several Apple employees, workers would leave newspapers and coupons for Shake Shack and Burger King on the break room table. An administrative law judge ruled for the union. The NLRB affirmed, finding that Apple violated the NLRA through a coercive interrogation of the employee and by removing union literature from the break room. Apple petitioned for review, and the NLRB cross-appealed.

On appeal, the 5th Circuit analyzed whether the conversation between the store manager and the employee was coercive. It noted that questioning employees about union activities is not, per se, illegal and that the conversation seemed to be a passing one. It did not include aggressive, repeated probing by Apple, and there was no past history of an anti-union motive.

The 5th Circuit found that there was not substantial evidence that Apple changed its policies by removing union literature. Rather, there was evidence that Apple applied the same policies to restaurant menus, personal invitations, and promotional fliers for local events. Occasional lapses in clearing materials from the break room did not, without occurring more frequently, show discrimination.

Thus, the 5th Circuit reversed the NLRB’s decision. 

Apple v. NLRB, 5th Cir., No. 24-60242 (July 7, 2025).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.