Case in point: Apple v. NLRB, in which the 5th Circuit just handed the tech giant a full reversal, rejecting findings by the Board that the company violated the NLRA by:
1. Coercively interrogating an employee about union activity; and
2. Removing union flyers from a breakroom table.
Let's unpack why Apple won, and what it means for employers navigating union-organizing campaigns.
🔍 On the alleged "interrogation":
A manager casually asked an employee how his meeting with HR went and whether he had talked with others about pay. The employee, who admitted he lied in the conversation to keep the union campaign under wraps, claimed the manager coerced his answers. The NLRB agreed. The Fifth Circuit? Not so much. The court rightly pointed out that "casual and moderate inquiries" in public spaces, without threats or a history of anti-union animus, aren't coercion.
📄 On the flyer removals:
Apple removed unattended union flyers from a breakroom table. The NLRB said this was discriminatory. But the court found Apple consistently enforced its no-solicitation and cleanliness policies, removing all unattended written materials, from opera invites to Burger King coupons. Union flyers weren't singled out for special treatment. That was the key fact.
This case is a win for common sense. The NLRA protects employee rights. But it doesn't require employers to abandon neutral, consistently enforced policies, nor does it punish basic workplace conversations.
Employers, if you want to stay on the right side of the NLRA:
• Train managers to engage, not interrogate.• Enforce policies consistently, regardless of context or content.• Don't panic every time a flyer hits the breakroom table.
And if you're still unsure where the line is… you know where to find me.