The opinion
Case: 24-60242 Document: 80-1 Page: 1 Date Filed: 07/07/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 24-60242 July 7, 2025
____________
Lyle W. Cayce
Clerk
Apple Inc.,
Petitioner/Cross-Respondent,
versus
National Labor Relations Board,
Respondent/Cross-Petitioner.
______________________________
Appeal from the National Labor Relations Board
Agency No. 02-CA-295979
______________________________
Before Richman, Willett, and Douglas, Circuit Judges.
Don R. Willett, Circuit Judge:
This labor-relations case arises from a unionization effort at an Apple
retail store. The National Labor Relations Board, adopting the findings of an
administrative law judge, concluded that Apple violated the National Labor
Relations Act in two ways: first, by coercively interrogating an employee, and
second, by removing union literature from a breakroom. We grant Apple’s
petition for review and REVERSE because substantial evidence does not
support either finding.
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I
A
Jordan Vasquez worked at Apple’s retail store near the World Trade
Center in New York City from September 2019 through September 2022. He
held no supervisory role and reported directly to the store’s senior managers
during his shifts.
In early 2021, Vasquez—together with his colleague Ian O’Hara and
other store employees—formed an organizing committee in coordination
with the Communication Workers of America (CWA), intervenors in this
case. Between January and May 2022, Vasquez regularly discussed wage
increases with his coworkers. In April, he raised the issue with a senior
manager, who referred him to Apple’s human resources department.
Vasquez later met with a representative HR.
On May 9, 2022, senior manager Stephanie Gladden approached
Vasquez on the sales floor—a space open to the public—shortly before the
start of her shift. It was Gladden’s routine practice to speak with employees
on the sales floor at the beginning of her shift—a practice she had followed
with Vasquez in the past. That day, Gladden asked Vasquez how he was
doing and mentioned that she had heard he had met with human resources.
Vasquez replied that the meeting had gone well and that they had discussed
his interest in securing higher pay for Apple employees. According to
Vasquez, Gladden then asked whether he had spoken with other employees
about higher pay. He said that he had. Vasquez further testified that Gladden
asked how many employees he had spoken with, to which he responded that
he was not keeping track.
According to Vasquez, Gladden 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
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was not involved in. Vasquez further testified that Gladden 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.”
Gladden’s account of their sales-floor interaction diverged from
Vasquez’s in at least one material respect. She testified that it was Vasquez—
not she—who first raised the topic of unions, doing so in response to her
routine inquiry about how his day was going. Gladden confirmed that
Vasquez 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 asked why such conversations would trouble him. Gladden
also recalled asking Vasquez about his recovery from a recent knee injury.
After speaking with Gladden, Vasquez told O’Hara that Gladden had
asked his opinion on unionization. Vasquez later told another senior manager
that someone had inquired about his views on unionization, though he
declined to identify who.
B
Six days later, on May 15, 2022, the organizing committee made its
union campaign public. Vasquez and O’Hara 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.
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.
During their lunchbreak, Vasquez and O’Hara replaced the flyers,
only for a different manager to remove them minutes later. Roughly an hour
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after that, O’Hara placed more flyers on the table but removed them
voluntarily a few minutes later after conferring with Vasquez.
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 in a high-profile area
of New York City—“grand opening ready every day, every minute,”
including in nonpublic areas. This policy, however, is unwritten. As part of
the practice, store leaders routinely remove visible trash to “convey
ownership over, and pride in, the workplace.” Second, Apple invoked its
official Solicitation and Distribution Policy, AR.499–500, which states in
relevant part:
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. Additionally,
you may not distribute material during work time or in a work
area. Third parties are not permitted to distribute materials or
solicit employees, vendors, or customers on Apple property at
any time.
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.
According to the Board and several Apple employees, “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.”
After the flyers were removed on May 15, store leader Waleed Abdelal
spoke with Vasquez about Apple’s cleanliness standards and its non-
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solicitation policy. He later texted Vasquez a copy of the policy. Although
Vasquez disagreed that the flyers violated either policy, he nonetheless
stopped leaving them in the breakroom.
O’Hara resumed placing flyers in the breakroom on May 27 and again
on June 1. On both occasions, senior managers removed the flyers within
minutes. In some instances, managers shredded the flyers after removing
them.
The senior managers maintained 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.
C
Section 7 of the National Labor Relations Act guarantees employees
“the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.”1 Section 8(a)(1), in turn, makes it an
unfair labor practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of [their Section 7] rights.”2
On May 18, 2022, the Union filed an unfair labor practice charge.
Later that year, the Board issued an administrative complaint based on that
charge. The complaint alleged that Apple violated Section 8(a)(1) of the Act
by unlawfully interrogating employees about their union support and other
_____________________
1
29 U.S.C. § 157.
2
Id. § 158(a)(1).
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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.
After a two-day hearing, the Administrative Law Judge (ALJ)
sustained both charges and found that Apple violated the NLRA.
Significantly, the ALJ “credit[ed] Vasquez’[s] account of the May 9, 2022,
conversation as opposed to Gladden’s,” noting that “Vasquez’[s] account of
their conversation did not include [some] statements.” The ALJ credited
only one aspect of Gladden’s testimony: that she approached Vasquez “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. The Board, however,
affirmed on May 6, 2024, and ordered Apple to cease and desist from the
violations and to post a remedial notice.
Apple petitioned this court for review, contending that Gladden did
not coercively interrogate Vasquez; that, in any event, her statements are
protected by the First Amendment; and that Apple enforced its breakroom
policies consistently and without regard to content. The Board cross-applied
for enforcement of its Decision and Order, and the CWA timely intervened.
II
Jurisdiction. The Board had jurisdiction over the proceedings below
under Section 10(a) of the NLRA.3 We have jurisdiction over Apple’s
petition for review and the Board’s cross-application for enforcement under
_____________________
3
Id. § 160(a).
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29 U.S.C. § 160(e)–(f). Both applications are timely, as the Act imposes no
statutory deadline.4
Venue. Venue is proper in this circuit because Apple “transacts
business” here5—it maintains a “physical presence” and employs personnel
within our jurisdiction.6
III
Under the NLRA and the Administrative Procedure Act, the Board’s
factual findings are “conclusive” if they are “supported by substantial
evidence on the record considered as a whole.”7 We “uphold the Board’s
factual findings” under this standard “only if they are supported by evidence
that is substantial when viewed in light of the record as a whole, including
‘whatever in the record fairly detracts from its weight.’”8 We are “not left
merely to accept the Board’s conclusions,”9 nor are we “a mere rubber
stamp.”10 The substantial-evidence standard governs the Board’s findings on
_____________________
4
See generally id. § 160.
5
See id. § 160(f).
6
Bally’s Park Place, Inc. v. NLRB, 546 F.3d 318, 321 (5th Cir. 2008) (first citing
Davlan Eng’g, Inc. v. NLRB, 718 F.2d 102, 103 (4th Cir. 1983); and then citing Olin Indus.,
Winchester Repeating Arms Co. Div. v. NLRB, 191 F.2d 613, 614 (5th Cir. 1951)).
7
29 U.S.C. § 160(e); see also 5 U.S.C. § 706(2)(E); Tesla, Inc. v. NLRB, 120 F.4th
433, 439 (5th Cir. 2024) (en banc).
8
Thryv, Inc. v. NLRB, 102 F.4th 727, 737 (5th Cir. 2024) (quoting Dish Network
Corp. v. NLRB, 953 F.3d 370, 376 (5th Cir. 2020)); see also Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951).
9
Brown & Root, Inc. v. NLRB, 333 F.3d 628, 633 (5th Cir. 2003).
10
NLRB v. Arkema, Inc., 710 F.3d 308, 314 (5th Cir. 2013) (citation omitted).
7
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both coercive interrogation and the unlawful confiscation of union
materials.11
We “will affirm the Board’s legal conclusions ‘if they have a
reasonable basis in the law and are not inconsistent with the [NLRA].’”12
But as the Supreme Court has emphasized, courts must apply “traditional
tools of statutory interpretation when so assessing; we do not simply defer to
an agency’s interpretation of ‘ambiguous’ provisions of their enabling
acts.”13
IV
Apple seeks review of two Board determinations: first, that senior
manager Stephanie Gladden unlawfully interrogated an employee in violation
of the NLRA; and second, that Apple managers unlawfully removed union
materials from a breakroom table and discriminatorily enforced workplace
policies against pro-union literature.
A
We begin with the Board’s finding that Apple engaged in coercive
interrogation. The Board concluded that Apple violated Section 8(a)(1) of
the Act because Gladden “coercively interrogated” Vasquez about his
union-related activity. Apple denies that any coercion occurred. We agree
with Apple: the Board’s finding is not supported by substantial evidence.
_____________________
11
See NLRB v. McCullough Env’t Servs., Inc., 5 F.3d 923, 927–28 (5th Cir. 1993);
Poly-Am., Inc. v. NLRB, 260 F.3d 465, 481 (5th Cir. 2001).
12
Hudson Inst. of Process Rsch. Inc. v. NLRB, 117 F.4th 692, 700 (5th Cir. 2024)
(alteration in original) (citations omitted).
13
Id.
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“To determine whether an interaction between an employer and
employee constitutes a coercive interrogation, we examine ‘the totality of the
circumstances in which the interrogation occurred.’”14 The relevant inquiry
is “whether the questioning tends to be coercive, not whether the employees
are in fact coerced.”15 We consider eight factors:
(1) the background, or history of employer hostility and
discrimination; (2) the nature of the information the questioner
seeks; (3) the rank of the questioner in the company hierarchy;
(4) the place and manner of the interrogation; (5) the
truthfulness of the employee’s reply; (6) whether the employer
had a valid purpose in obtaining the information sought about
the union; (7) whether a valid purpose, if existent, was
communicated to the employee; and (8) whether the employer
assured the employee that no reprisals would be forthcoming
should he or she support the union.16
These factors are “not a mandate for formalistic analysis,” but rather
serve as “analytical guiding lights” in assessing coercion.17 Critically, “[n]o
single factor is determinative[,]” and coercion may be found even where
most factors favor the employer.18
Both Apple and the Board agree on the first and third factors. Apple
has no history of hostility or discrimination toward union activity.19 And the
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14
Renew Home Health v. NLRB, 95 F.4th 231, 243 (5th Cir. 2024) (quoting NLRB
v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1342 (5th Cir. 1980)).
15
NLRB v. Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970).
16
Renew Home Health, 95 F.4th at 243 (citation omitted).
17
UNF W., Inc. v. NLRB, 844 F.3d 451, 461 (5th Cir. 2016).
18
Tellepsen Pipeline Servs. Co. v. NLRB, 320 F.3d 554, 561 (5th Cir. 2003).
19
The absence of prior union activity is immaterial. Both the ALJ and the Board—
by adopting her recommended order—accorded that fact undue weight.
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alleged “interrogation” occurred in a public setting—on the store’s sales
floor—during a routine managerial check-in. Both factors favor Apple.
Turning to the fifth factor—“the truthfulness of the employee’s
reply”20—both sides agree that Vasquez’s denial of union involvement was
untrue. What remains in dispute is his motive for the false statement.
According to the Board, Vasquez’s “evasive” response “objectively
indicates possible fear of retaliation against the questioned employee or
others if honest and direct answers were given.”21 Apple takes a different
view, asserting that Vasquez was not fearful but strategic: he “responded
untruthfully for reasons of campaign strategy,” as the organizing committee
was “trying to keep organizing efforts under wraps for a while longer.” On
that basis, Apple argues, Vasquez’s false statement does not “objectively
indicate[] possible fear of retaliation.”22
We agree with the Board that an untruthful or evasive response may
“objectively” suggest that the questioning “tends to coerce employees.”23 It
is true that none of the cases the Board cites involved alternative, non-
retaliatory explanations for the employee’s untruthfulness. Here, however,
Vasquez admitted that he lied about his unionization efforts to preserve the
secrecy of the nascent organizing campaign.24 Still, as the Board emphasizes,
_____________________
20
Renew Home Health, 95 F.4th at 243 (internal quotation marks and citation
omitted).
21
NLRB v. Brookwood Furniture, 701 F.2d 452, 462 (5th Cir. 1983) (quotation marks
and citations omitted).
22
Id.
23
Id. at 460, 462 (emphasis added).
24
See Dow Chem. Co., Tex. Div. v. NLRB, 660 F.2d 637, 651 (5th Cir. 1981) (“That
neither Hernandez nor Gary said they felt coerced, . . . indicate[s] its noncoercive
nature.”); id. at 653 (“Elliott did not testify that he felt coerced and the question is not in
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the very fact that the campaign remained “under wraps” may itself
“objectively” indicate a coercive environment.25 Because the inquiry is
whether the questioning “tends to coerce”—not whether it actually did—
this factor weighs in the Board’s favor.26
We next consider the substance of Gladden’s questions and the
purpose behind them. The Board’s claim that inquiries about wages or union
sentiment are “quintessential example[s] of coercive interrogation” sweeps
too broadly. Indeed, “[q]uestioning of employees as to union activities is not
illegal per se.”27 The cases the Board cites involve additional coercive
elements not present here. Many featured aggressive, repeated probing by
employers—not a one-off, passing exchange between a single manager and a
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haec verba coercive. Insubstantial evidence appears in the record to support a finding, even
by inference, that Walker’s question was anything other than the type of casual or moderate
inquiry described as non-violative of [§] 8(a)(1)[.]”).
25
See Brookwood Furniture, 701 F.2d at 462 (discussing “evasive answers” during
nascent organizing drive).
26
Our sister circuit recently held that employees’ subjective impressions may
factor into the totality-of-the-circumstances inquiry “to determine how a reasonable
employee would objectively view [the] employer’s conduct.” Starbucks Corp. v. NLRB,
No. 24-1585, 2025 WL 1690140, at *3 (8th Cir. Jun. 17, 2025). We need not decide today
whether to follow suit: either way, the outcome is the same. Applying the stricter, objective
test the Board itself used, the circumstances here do not support a finding of coercively
interrogation. See post, at 13–14. And if anything, considering Vasquez’s subjective
response—not out of fear, but as a strategic choice to keep the campaign “under wraps”
before going public with flyers and wristbands just a week later—would only reinforce that
conclusion.
27
Brookwood Furniture, 701 F.2d at 460; see also, e.g., Cooper Tire & Rubber Co. v.
NLRB, 957 F.2d 1245, 1255 (5th Cir. 1992) (“An employer with a legitimate cause may
interrogate employees on union matters without incurring section 8(a)(1) liability. An
interrogation becomes illegal when the ‘words themselves or the context in which they are
used . . . suggest an element of coercion or interference.’” (citations omitted)); Ctr. Prop.
Mgmt. v. NLRB, 807 F.2d 1264, 1270 (5th Cir. 1987) (“[Q]uestioning an employee about
union sympathies is not per se unlawful[.]”); Laredo Coca Cola Bottling Co., 613 F.2d at
1342 (“[I]nterrogation into union activities is not per se illegal[.]”).
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single employee.28 Critically, those cases often involved threats of reprisal or
arose against a backdrop of anti-union animus or prior unfair labor
practices.29 Here, by contrast, Gladden expressly reaffirmed Vasquez’s right
to discuss unionization: “This is something that you can talk about and you
can engage in.” While Gladden did ask whether Vasquez had spoken to
_____________________
28
See, e.g., Renew Home Health, 95 F.4th at 238, 244 (employer demanded to see
private text messages exchanged among employees); NLRB v. Harbison-Fischer
Manufacturing Co., 304 F.2d 738, 739 (5th Cir. 1962) (supervisor called employee at home
on a Sunday to verify names of union supporters); Brookwood Furniture, 701 F.2d at 461
(employer made a “systematic effort to ascertain the employees’ sympathies toward the
union,” including conversations with multiple employees and, in some cases, took place in
a “place of authority or ‘unnatural formality’” (citation omitted)); see also TRW-United
Greenfield Div. v. NLRB, 637 F.2d 410, 416 (5th Cir. 1981) (“[T]he Company engaged in
a systematic effort to ascertain the union sympathies of its employees[.]”); NLRB v. Pope
Maint. Corp., 573 F.2d 898, 904 (5th Cir. 1978) (finding “widespread interrogation . . . by
many, if not most, of the Company’s supervisors”).
29
See, e.g., UNF W., Inc., 844 F.3d at 462 (question about union support was
“accompanied by a threat referencing [the employee’s] economic dependence” on the
employer); Tellepsen Pipeline Servs., 320 F.3d at 561 (question about how employee planned
to vote in upcoming union election “was coupled with threats of reprisal”); McCullough
Env’t Servs., 5 F.3d at 929 (questioning about union support occurred after management
expressed anti-union views); NLRB v. Brookshire Grocery Co., 919 F.2d 359, 361, 367 (5th
Cir. 1990) (questions about whether employees had discussed wages with one another were
coercive because employer had unlawfully prohibited employees from discussing wages);
Ctr. Prop. Mgmt., 807 F.2d at 1271 (question about whether employee signed petition was
coercive because it occurred “just after [another employee’s] discharge in part for union
activities” and conveyed that the employer “would tolerate no union organizing”);
Brookwood Furniture, 701 F.2d at 462–63 (questioning in most instances was “combined
with statements which could be viewed as affirmatively warning of economic reprisals”);
Laredo Coca Cola Bottling Co., 613 F.2d at 1342 (questions about union support came after
employer had “clearly manifested its hostility toward the union”); NLRB v. Aero Corp.,
581 F.2d 511, 513–14 (5th Cir. 1978) (questions outside the work building about how many
union cards had been signed closely followed employer’s illegal surveillance of union
meeting); Sturgis Newport Bus. Forms, Inc., v. NLRB, 563 F.2d 1252, 1257 (5th Cir. 1977)
(questions about the identity of union supporters coincided with threats of plant closure
and were made against a background of company opposition to the union); Tampa Times
Co. v. NLRB, 193 F.2d 582, 583 (5th Cir. 1952) (interrogation was accompanied by
threats).
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others about wages—and how many—“casual and moderate inquiries, even
as to union preference, absent evidence indicating that the employee has
reason to consider the inquiries a threat of reprisals, [do] not constitut[e] an
unfair labor practice in violation of [§]8(a)(1).”30
Next, we consider Gladden’s role as Vasquez’s direct supervisor.
Questions posed by an “immediate supervisor” can support a finding of
coercion.31 At first glance, this factor may seem to favor the Board: Gladden
had supervisory authority over Vasquez, even if she did not hold a senior
management title. But again, the Board’s precedents involved markedly
different circumstances—supervisors who “expressed their anti-union views
to employees,”32 “failed to assure [the employees] that no reprisals would be
forthcoming,”33 or “coupled [their questions] with threats of reprisal.”34
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 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
_____________________
30
Dow Chem. Co., 660 F.2d at 650 (citation omitted).
31
See McCullough Env’t Servs., 5 F.3d at 928–29; see also Tellepsen Pipeline Servs.,
320 F.3d at 561 (finding unlawful interrogation “[e]ven though [the questioner] was a low-
level supervisor who had always treated his employees well”).
32
McCullough Env’t Servs., 5 F.3d at 929.
33
Id.
34
Tellepsen, 320 F.3d at 561.
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Gladden said anything further—he did not deny that she reaffirmed
employees’ rights to engage in union activity.
Moreover, as the Supreme Court has cautioned, “The substantiality
of evidence must take into account whatever in the record fairly detracts from
its weight.”35 Accordingly, to withstand substantial-evidence review, the
Board must account for “contradictory evidence or evidence from which
conflicting inferences could be drawn.”36 The ALJ did not do so here.
Gladden’s unrefuted testimony—that she expressly reaffirmed Vasquez’s
right to discuss unionization—“fairly detracts” from any inference of
coercion. So too does the absence of evidence that Gladden—or any other
supervisor—harbored anti-union animus or issued threats of reprisal.
Viewed in light of the full record, there is not substantial evidence to
support the Board’s finding that Apple violated the Act.37
B
We next consider the Board’s second finding: that Apple managers
acted unlawfully and discriminatorily by removing union flyers from the
breakroom table. Apple maintains that the removals did not violate the
NLRA. We agree. Once again, the Board’s conclusion lacks the support of
substantial evidence.
_____________________
35
Universal Camera Corp., 340 U.S. at 488; see also Tesla, Inc., 120 F.4th at 440
(quoting same).
36
Id. (quotation marks and citation omitted).
37
Alternatively, Apple argues that enforcing the Board’s order would infringe its
First Amendment rights and urges us to require a finding of subjective coercive intent—
consistent with other free-speech contexts—before upholding any coercive-interrogation
finding. Because we conclude that Gladden did not coercively interrogate Vasquez, we
need not reach the First Amendment question.
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As a general matter, employees are entitled to distribute union
materials during non-work time and in non-work areas.38 An “obvious
corollary” of that right is that “an employer violates section 8(a)(1) by
confiscating and destroying union material.”39 Any restriction on this right
must be justified by “special circumstances”—that is, by a showing that the
limitation is “necessary to maintain production or discipline.”40 For
example, a consistently enforced housekeeping policy may qualify—so long
as it is genuine and not a pretext for discrimination.41
Apple contends that it maintained such a policy, even if unwritten. We
agree that a consistently applied policy need not be in writing.42 Moreover,
Apple’s Solicitation and Distribution Policy—which is in writing—appears
_____________________
38
See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 492–93 (1978).
39
Poly-Am., Inc., 260 F.3d at 480; see also NLRB v. Transcon Lines, 599 F.2d 719,
721 (5th Cir. 1979) (finding violation where employer “removed [an employee’s] leaflets
from the drivers’ room”).
40
Beth Israel Hosp., 437 U.S. at 492–93.
41
See, e.g., Page Avjet, Inc., 278 NLRB 444, 450 (1986); N. Am. Refractories Co.,
331 NLRB 1640, at *6 (2000); Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177, at *14
(Aug. 27, 2018) (describing North American Refractories as “holding that an employer may
lawfully maintain and enforce housekeeping rules that result in the confiscation from
nonworking areas of prounion literature left behind following break periods” and finding
that the respondent “specifically targeted union literature for removal”), enforced in
relevant part, 803 F. App’x 876 (6th Cir. 2020); Mitchellace, Inc., 321 NLRB 191, 197–98
(1996) (holding that “[t]he mere fact of a supervisor removing union literature from a break
area does not constitute a violation of the Act”—at least “where the supervisor routinely
helps keep the break area clean” and where the company also permitted personal messages
on the bulletin board).
42
See Page Avjet, 278 NLRB at 445, 450 (finding there was “no existing written
policy on solicitation or distribution” but the employer still did not violate Section 7 by
“cleaning up the break area at the conclusion of an employee break” because “[e]mployees
do not have the right to clutter break areas with union literature”).
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in the record. The question, then, is not whether these policies exist—but
how they are enforced.43
In reviewing the record, we may not “displace the Board’s choice
between two fairly conflicting views, even though [we] would justifiably have
made a different choice had the matter been before [us] de novo.”44
1
The Board advances its own reading of the evidence.
First, it contends that Apple lacked a bona fide housekeeping policy
and instead “targeted union flyers.” One employee, reflecting on her “six
years and five months” at Apple, recalled “two specific instances” in which
Shake Shack or Burger King coupons were left in the breakroom for several
days before being removed. She also recalled seeing newspapers left out
“more than ten times” during her tenure—typically for a “couple of days”
before they were cleared. Vasquez, for his part, recalled seeing Shake Shack
coupons “once,” around the time the restaurant opened, and occasionally
seeing newspapers on the breakroom table.
Second, even assuming Apple maintained policies on cleanliness and
written materials, the Board contends that managers enforced those policies
selectively. On the three days at issue, managers removed only union flyers—
and did so within minutes of their placement, often while employees were
still in the breakroom. Moreover, they removed the flyers without checking
_____________________
43
See Cellco P’ship v. NLRB, 892 F.3d 1256, 1262 (D.C. Cir. 2018) (noting that the
“only legitimate question” is “whether the company applied [its] policy reasonably
consistently”); cf. NLRB v. McGahey, 233 F.2d 406, 413 (5th Cir. 1956) (“[A]s we have so
often said: management is for management. Neither Board nor Court can second-guess it
or give it gentle guidance by over-the-shoulder supervision.”).
44
Universal Camera Corp., 340 U.S. at 488.
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whether other items—like food containers or water bottles—had also been
left behind and should likewise be cleared. The managers also photographed
and shredded the flyers—departures from typical cleanliness and
housekeeping practices. Indeed, one Apple manager acknowledged that he
had never shredded discarded material before.
In the Board’s view, these findings were enough to conclude that
Apple unlawfully confiscated union materials.
2
Apple tells a different story: that it applied its policies evenhandedly
and removed all manner of written materials—not just union-related ones.
The record supports that account. Apple managers cleared a variety of non-
union items from the breakroom, including restaurant menus, coupons, and
promotional or personal flyers. In some cases, employees who left such items
behind were informed that doing so violated the Solicitation and Distribution
Policy.
For example, when one employee left flyers inviting colleagues to his
debut opera performance in Brooklyn, a manager explained that such
materials weren’t permitted in the breakroom because they violated the
Solicitation and Distribution Policy and contributed to a “cluttered”
environment in an already “busy” space. In another instance, an employee
posted flyers on a breakroom whiteboard advertising a folk music event in
which she was performing. A manager removed the flyers and “ha[d] that
conversation with her just around the [non-solicitation] policy
and . . . different ways she could potentially talk to the team if she wanted to
about it.”
Most telling of all, 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
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managers explaining that they violated company policy and Apple’s
“standards in the space.” At that point, the manager had not yet seen any
union flyers in the breakroom. Five days later—on the same day managers
first removed union flyers—Vasquez brought up the party flyers during a
conversation with the store leader. The store leader responded that he had
“addressed” the earlier flyers with the departing employee, who “was also
made aware of” the policy.
Further underscoring Apple’s evenhanded enforcement, the
company 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.
3
Having reviewed the full record, we conclude that Apple’s account is
more than just a “fairly conflicting” view of the evidence.45 And considering
“the record . . . as a whole”—including evidence that “fairly detracts” from
the Board’s findings—we hold that substantial evidence does not support the
conclusion that Apple unlawfully confiscated union materials.46
Our holding rests on three grounds:
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45
Universal Camera Corp., 340 U.S. at 488.
46
Tesla, Inc., 120 F.4th at 440 (first quoting 29 U.S.C. § 160(e)–(f); and then
quoting Universal Camera Corp., 340 U.S. at 488); see also Tri-State Health Serv., Inc. v.
NLRB, 374 F.3d 347, 352 (5th Cir. 2004) (“[T]he Board ‘is not free to prescribe what
inferences from the evidence it will accept and reject, but must draw all those inferences
that the evidence fairly demands.’” (quoting Allentown Mack Sales & Serv., Inc. v. NLRB,
522 U.S. 359, 378 (1998))).
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First, our review is not confined to the handful of days when managers
removed the union flyers.47 Apple introduced substantial evidence that
managers “attended personally to breakroom tidiness” on multiple
occasions. This supports the existence of a general housekeeping policy. In
addition, evidence that rank-and-file employees also cleared items from the
breakroom table lends further credence to a shared workplace norm of
cleanliness.
Looking to the full record—not just the three days in question—Apple
appears to have enforced its policies “with equal zeal” across all written
materials.48 There is no evidence—let alone substantial evidence—that
Apple “changed its policy regarding distributions in the break room ‘as a
reaction to and countermeasure against the union campaign.’”49 Indeed,
Apple applied the same policies to restaurant menus, personal invitations,
and promotional flyers for local events—including one instance just days
before managers removed the union flyers. That managers photographed the
flyers on one occasion suggests an effort to “proceed[] carefully” with
conduct that might otherwise appear adverse to union activity.50 Nor is the
shredding of union flyers meaningfully different from discarding other
_____________________
47
See N. Am. Refractories Co., 331 NLRB 1640, at *6; see also id. at *4 (describing a
“typical day” and noting that magazines were sometimes left on the table on days unrelated
to the removal of union leaflets, as part of broader testimony on general cleanliness
practices).
48
Id. at *6.
49
Intertape Polymer Corp. v. NLRB, 801 F.3d 224, 232 (4th Cir. 2015) (citation
omitted).
50
See Cellco P’ship, 892 F.3d at 1261.
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written materials—as Apple managers have done before. Whether shredded
or trashed, the result is the same: the materials are gone.51
The Board’s countervailing evidence—two instances involving
coupons and a handful of newspapers left out over more than six years—does
not rise to the level of substantial evidence. Nor is it “indicative of a
discriminatory purpose by” Apple.52 Indeed, as the Board itself has
previously recognized, “[t]hat the evidence . . . shows that there were
occasions when some lunch trash, a magazine or two, or, even a newspaper
were not immediately removed from the lunchroom, following a break, is not
indicative of a discriminatory purpose by [an employer] in picking up
leaflets . . . due to the disarray.”53 Isolated lapses in clearing written materials
from a breakroom—without more—do not support a finding of
discriminatory intent in removing union literature. We see no reason to
depart from that conclusion today.
_____________________
51
Cf. Poly-Am., Inc., 260 F.3d at 482 (treating “t[earing] up union flyers and
[throwing] them in the trash” as equivalent to “destroy[ing]” and “discard[ing]” union
materials); Fed.-Mogul Corp. v. NLRB, 566 F.2d 1245, 1253 (5th Cir. 1978) (holding that
burning a union card did not violate the Act absent evidence that it “was designed to hurt
Emerson or his property, or to influence or to affect the election”).
52
N. Am. Refractories, 331 NLRB 1640, at *6; see also Stern Produce Co. v. NLRB,
97 F.4th 1, 15 (D.C. Cir. 2024) (“An ‘isolated and marginal deviation’ from an employer’s
policy ‘fails to show that the policy was not applied in a neutral manner.’” (citation
omitted)); Mitchellace, Inc., 321 NLRB 191, 199 (1996) (“As for Scott letting a newspaper
remain on one of the tables, that is not inconsistent with Scott discarding as unacceptably
messy florescent-yellow sheets of paper that had been on the breaktables throughout the
entire shift.”).
53
N. Am. Refractories Co., 331 NLRB 1640, at *6 (emphasis added); see also Page
Avjet, 278 NLRB at 450 (finding no violation when a “Supervisor [] on one occasion, after
an employee break ended in the breakroom, picked up the union literature which was
scattered on the floor and left on the tables”); Stern Produce, 97 F.4th at 15.
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The Board’s claim that Apple removed the flyers without considering
whether nearby items—such as water bottles or a fruit basket—were
abandoned disregards the key distinction between written materials and food.
As Apple notes, food items—particularly when employees are present in the
breakroom—“likely belonged to particular employees or the company itself”
or were actively being consumed mid-break. Such items are “not comparable
to flyers left unattended on the table.” The flyers—like other unattended
written materials before them—were removed pursuant to Apple’s generally
applicable housekeeping and non-solicitation policies, regardless of whether or
not someone was currently using them.
Second, the Board’s attempt to distinguish cases involving the post-
break removal of flyers is unconvincing. As the Board itself acknowledged,
“the breakroom was constantly busy with employees on non-work time[,]”
and “there was no set conclusion to break periods, such that an empty
breakroom would permit managers to determine whether or not materials
which remained there were ‘abandoned.’” Given those conditions, Apple
could not have enforced its policies without running afoul of the very after-
break-removal rule the Board appears to endorse. Imposing such a
prohibition—especially where employee breaks have no formal endpoint—
would defy common sense.54
_____________________
54
Although the concurrence joins our analysis of the non-solicitation policy, it
would resolve the flyer-removal issue solely on that ground—declining to consider Apple’s
housekeeping policy. Expressing doubt about the consistency of Apple’s housekeeping
enforcement, the concurrence invokes “the general principle that under the NLRA
employees have a right to distribute union material on non-work time and in non-work
areas,” reasoning that “union flyers in a non-work area” could belong to employees who
“were presently taking their break.” Post, at 25. As explained above, however, Apple
justifiably relied on—and evenhandedly enforced—both its non-solicitation and
housekeeping policies. While we understand the concurrence’s concern, the Board’s
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Third, our precedent only forbids “selectively discarding union
materials.”55 The Board’s reliance on out-of-circuit decisions—which
categorically prohibit employers from “confiscat[ing] union literature left for
distribution to employees in nonwork areas during nonwork time”56—is
misplaced. Those decisions do not bind us, and we decline to extend federal
labor law to prohibit the evenhanded enforcement of facially neutral
housekeeping and non-solicitation policies.57
This is not a case in which an employer singled out union material for
removal.58 Rather, it involves an employer that consistently removed all
unattended written materials from the breakroom—regardless of their
content. Because Apple’s evenhanded enforcement of its policies amounts to
more than a “fairly conflicting view” of the evidence,59 we are not “left to
the sheer acceptance of the Board’s conclusions.”60 Substantial evidence
does not support the Board’s finding, and Apple did not unlawfully
confiscate union materials.
_____________________
proposed approach—requiring managers to track the precise endpoint of each employee’s
break before removing unattended materials—would impose an impracticable burden that
is ill-suited to the rhythms of a hectic retail environment where breaks begin and end fluidly.
55
Poly-Am., Inc., 260 F.3d at 483.
56
Intertape Polymer Corp., 801 F.3d at 232 (quotation marks and citation omitted).
57
See Shamrock Foods Co., 366 NLRB No. 117, slip op. at 2, 23 (June 22, 2018)
(finding a violation where union materials were confiscated directly from employees, but
affirming that employers may reserve breakroom counters exclusively for company
information), enforced 779 F. App’x 752 (D.C. Cir. 2019)).
58
See Valley Health Sys., LLC, 369 NLRB No. 16, slip op. at 2, 16 (Jan. 30, 2020)
(finding an NLRA violation where union materials were confiscated “not for any general
housekeeping reasons but for the express purpose of precluding employees from receiving
the union’s messaging”).
59
See Universal Camera Corp., 340 U.S. at 488.
60
NLRB v. Mini–Togs, Inc., 980 F.2d 1027, 1032 (5th Cir. 1993).
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V
Apple did not engage in coercive interrogation, nor did it unlawfully
confiscate union literature. Because substantial evidence does not support
the Board’s conclusions, we grant the petition for review and REVERSE.
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Dana M. Douglas, Circuit Judge, concurring:
I agree that reversal is warranted. I write separately, however, because
I would reverse the Board’s finding that Apple unlawfully removed and
discriminated against union literature based solely on Apple’s consistent
enforcement of its non-solicitation policy.
Although Apple argued before the Board that both its general
housekeeping policy and non-solicitation policy were the impetus for the
flyers’ removal, the record points overwhelmingly to the non-solicitation
policy as the managers’ motivation for confiscating the flyers. To be sure,
store leader Waleed Abdelal, testified that he discussed cleanliness standards
with Vasquez; but Abdelal also testified that he told Vasquez that the non-
solicitation policy prohibited the distribution of union flyers. Abdelal further
offered to send Vasquez the policy that he believed prohibited Vasquez’s
conduct. The policy Abdelal sent to Vasquez was the non-solicitation policy,
not Apple’s general housekeeping policy. Similarly, Yanell Brown, a former
manager at the store, testified that he removed the flyers because they “f[ell]
into the . . . no solicitation policy.” Though Brown discussed the cleanliness
standards during his testimony, he specified that “when it comes to flyers
and any sort of promotion of things, [managers] would . . . throw those things
out,” harkening to Apple’s prohibition on solicitation. Likewise, O’Hara
testified that when he asked manager Jorge Romero to stop removing the
union flyers, Romero stated that he could not stop because the flyers were
promotional materials.
Thus, we need not reach the Board’s alternative finding that the
general housekeeping policy was selectively enforced against union flyers
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because the flyers were not removed pursuant that policy.1 Instead, the
Board’s finding that Apple unlawfully confiscated union literature turns on
whether the company selectively enforced its non-solicitation policy. And I
agree with the majority opinion that substantial evidence does not support
the Board’s finding of selective enforcement as to that policy. As explained
by the majority opinion, the record includes several examples of Apple’s
prohibiting the distribution of materials, other than union flyers, pursuant to
its non-solicitation policy. See ante, at 17, 19. Accordingly, I concur.
_____________________
1
Apple’s argument that it did not unlawfully enforce its general housekeeping
policy against union literature relies heavily on the difference between written materials
and food items, such as those that were left on the table when the union flyers were
confiscated. See ante, at 21. But the general housekeeping policy, as described by Apple,
does not appear to recognize a distinction between food items and written materials. See
Pet’r’s Br., at 23 (asserting that the general housekeeping policy required that the World
Trade Center Apple Store be “grand opening ready every day, every minute,” which
means that “store leaders make a point of picking up trash in view of other team members
to convey ownership over, and pride in, the workplace”). And though Apple argues that
the food items on the table “likely belonged to particular employees,” ante, at 21, the same
could be said of union flyers in a non-work area while employees were presently taking their
break, given the general principle that under the NLRA employees have a right to
distribute union material on non-work time and in non-work areas. See Beth Israel Hosp. v.
NLRB, 437 U.S. 483, 492–93 (1978); see also Page Avjet, Inc., 278 NLRB 444, 450 (1986)
(finding that the employer did not violate Section 7 of the NLRA by “cleaning up the break
area at the conclusion of an employee break” because “union literature in the break area
assumes the same character as any other material once the break has ended and employees
have returned to work”) (emphasis added).
25