Fifth Circuit Reverses NLRB in Apple Unionization Case

Reversing the National Labor Relations Board (NLRB), the Fifth U.S. Circuit Court of Appeals held that a conversation between an employee helping with union organization and his manager was not coercive.

Together with other employees at an Apple retail store in New York City, Jordan Vasquez formed an organizing committee in coordination with the Communication Workers of America (CWA). Between January and May 2022, he regularly discussed wage increases with his coworkers.

In May 2022, Senior Manager Stephanie Gladden approached Vasquez on the sales floor. It was her routine practice to speak with employees on the sales floor at the beginning of her shift.

They chatted for a few minutes. According to Vasquez, Gladden then asked whether he had spoken with other employees about higher pay and what he thought about the unionization efforts at Apple. He responded that his name had been linked to union activity, but he did not want to be associated with something he was not involved in.

However, Gladden testified that it was Vasquez who first raised the topic of unions and that he appeared upset that his name had been linked to pro-union activity. She also expressly affirmed that employees are permitted to discuss unionization, asking why having his name linked would trouble him.

A few days later, the organizing committee made its union campaign public. As part of their efforts, they handed out union flyers outside the store and placed additional flyers on a table in the employee breakroom.

Fifteen minutes later, an Apple manager photographed the flyers in the breakroom; roughly an hour later, the store manager removed the flyers. This happened several times over the next few weeks.

The union filed an unfair labor practice charge against Apple based on Gladden’s conversation with Vasquez and the removal of the flyers. Following a two-day hearing, an administrative law judge (ALJ) sustained both charges and found that Apple violated Section 8(a)(1) the National Labor Relations Act (NLRA).

When the NLRB affirmed the decision, Apple appealed to the Fifth Circuit.

The panel reversed on both charges, finding neither were supported by substantial evidence.

To determine whether an interaction between an employer and employee constitutes a coercive interrogation, the court examined the totality of the circumstances.

The parties agreed Apple had no history of hostility or discrimination toward union activity and the alleged “interrogation” occurred in a public setting during a routine managerial check-in, so both factors favored the employer.

Both sides also agreed that Vasquez’s denial of union involvement was untrue, with different takes on his motive for the false statement.

“We agree with the Board that an untruthful or evasive response may ‘objectively’  suggest that the questioning ‘tends to coerce employees,’” the court wrote. “Here, however, Vasquez admitted that he lied about his unionization efforts to preserve the secrecy of the nascent organizing campaign. Still, as the Board emphasizes, the very fact that the campaign remained ‘under wraps’ may itself ‘objectively’ indicate a coercive environment.”

The court found this factor weighed in the Board’s favor.

Considering the substance of Gladden’s questions and the purpose behind them, the court noted that the cases cited by the NLRB involved additional coercive elements not present.

“Taken as a whole, the circumstances do not support a finding of coercive interrogation—and the Board identifies no authority that compels the opposite result,” the court said. “The Board selectively invokes precedent focused on isolated factors, but none sustain a finding of coercion when viewed in full context. Crucially, even crediting Vasquez’s account, neither the ALJ nor the Board meaningfully engaged with Gladden’s testimony, which provided critical context. Indeed, Vasquez testified only that he did not recall whether Gladden said anything further—he did not deny that she reaffirmed employees’ rights to engage in union activity.”

Gladden’s unrefuted testimony—that she expressly reaffirmed Vasquez’s right to discuss unionization—detracted from any inference of coercion, the court said.

Turning to the removal of flyers from the breakroom, Apple contended that it maintained two policies that barred leaving material unattended on the breakroom table. First, although it was unwritten, the employer pointed to a general housekeeping and cleanliness practice aimed at keeping the store “grand opening ready,” including in nonpublic areas.

The second policy, the Solicitation and Distribution Policy found in its handbook, prohibited solicitation and distribution of materials by employees during work time. Apple told the court that it applied its policies evenhandedly and removed all manner of written materials, not just union-related ones.

“The record supports that account,” the court said, noting that Apple managers cleared restaurant menus, coupons and personal flyers from the breakroom, with some employees notified that they had violated the policy. “Further underscoring Apple’s evenhanded enforcement, the company allowed employees to distribute union bracelets and flyers during nonwork hours and in nonwork areas.”

Isolated lapses in clearing written materials from the breakroom (coupons and a handful of newspapers left out over more than six years)—without more—did not support a finding of discriminatory intent in removing union literature, the court added.

“Apple did not engage in coercive interrogation, nor did it unlawfully confiscate union literature,” the court concluded. “Because substantial evidence does not support the Board’s conclusions, we … reverse.”

To read the opinion in Apple Inc. v. National Labor Relations Board, click .

Why it matters: The Fifth Circuit’s decision provides guidance to employers regarding what is and is not prohibited when discussing union issues with workers and when removing union-related material from the workplace.