01/09/2025: Apple Employee's Complaints Were Not Concerted
An application of Meyers and Fresh & Easy.
Amazon.com Services LLC, JD-02-25, 12-CA-308502 (ALJ Decision)
Anthony Mundorff worked as a warehouse associate at Amazon's Deltona, Florida facility. He advocated for workplace safety improvements and supported union organizing efforts. In summer 2022, Mundorff contacted OSHA regarding workplace safety concerns, leading to an OSHA investigation that began on July 18.
While on light duty, Mundorff was responsible for marking defective carts. When red tags weren't available on August 13, 2022, he used an erasable marker to write "red tag" on broken carts, along with "OSHA," "Teamsters," and "ALU" (Amazon Labor Union). Amazon investigated the incident without interviewing Mundorff and issued him a final written warning on September 8, 2022.
Amazon's MyVoice platform, an internal digital communication system, operated under Terms of Use that restricted sharing of "personal" and "confidential" information. Rule 2 prohibited sharing personal/confidential information, while Rule 5 required maintaining confidentiality about posted content.
On February 8, 2023, HR Manager Gipson posted that comments violating the code of conduct or calling out associates negatively would be removed from MyVoice.
The Administrative Law Judge found:
The final warning violated labor law because Mundorff's cart markings were protected activity
MyVoice Rules 2 and 5 were unlawfully overbroad as they could restrict protected discussions of working conditions
Gipson's February 2023 post unlawfully restricted protected speech
The ALJ ordered Amazon to:
Remove Mundorff's final warning from his file
Rescind the overbroad MyVoice rules
Post notices about employees' rights at all facilities using MyVoice
Mail notices to current and former employees
Amazon had argued that writing on carts beyond "red tag" served no business purpose and that MyVoice rules protected legitimate confidentiality interests. However, the ALJ found Amazon could have used narrower rules to protect its interests without infringing on protected activities.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for determining whether protected activity was a motivating factor in adverse employment actions.
Stericycle, Inc., 372 NLRB No. 113 (2023): Established the current standard for assessing overly broad work rules
Golden State Foods Corp., 340 NLRB 382 (2003): Held that pretextual justifications for adverse actions automatically fail to meet the employer's burden of proof under Wright Line.
Constellium Rolled Products Ravenswood, LLC, 366 NLRB No. 131 (2018): Affirmed that individual actions can be protected if they are logical outgrowths of group concerns.
Apple Inc., JD(SF)-01-25, 32-CA-306609 (ALJ Decision)
Ellen Shen worked as a software engineer at Apple from 2015 to 2022 in the Applied Machine Learning Platform department. In April 2020, she had a technical disagreement with her manager and coworker about the direction of Project Alloy, a fraud prevention system. Her proposed code design was not selected, and instead the team went with her coworker Andy Wu's approach.
Over the next two years, Shen repeatedly raised concerns about this decision through various channels. In early 2022, she filed four formal complaints with Apple's Employee Relations department about management's handling of Project Alloy. These complaints were investigated and dismissed in April 2022.
In June 2022, Shen sent three mass emails to approximately 164 Apple employees about her grievances. Many recipients had no connection to Project Alloy or Shen's work. Multiple employees complained that the emails were disruptive and made them feel unsafe due to their aggressive tone. Apple managers warned Shen that such mass communications violated company policy.
Despite these warnings, in October 2022 Shen sent another mass email and Slack message to the entire AML department. Shortly after, Apple terminated her employment on November 1, 2022.
Shen filed an unfair labor practice charge with the NLRB. The General Counsel alleged Apple violated Section 8(a)(1) of the National Labor Relations Act by disciplining and terminating Shen for protected concerted activities, and through various threats and coercive statements by managers.
The Administrative Law Judge dismissed all allegations. He found Shen's complaints were individual grievances rather than protected concerted activity, as no other employees shared her concerns. Events before May 7, 2022 were time-barred by the statute of limitations. The managers' statements were legitimate warnings about disruptive behavior rather than unlawful threats. Even if Shen had engaged in protected activity, Apple proved it would have terminated her anyway for violating company policy through the mass emails after multiple warnings.
Significant Cases Cited
Meyers Industries, Inc., 281 NLRB 882 (1986): Established that activities must be concerted and intended to improve workplace conditions to qualify for protection under the NLRA.
Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014): Activity is concerted if seeking to initiate group action or bring truly group complaints
Every Woman's Place, 282 NLRB 413 (1986): Individual complaints must be "logical outgrowth" of group concerns
Stericycle, Inc., 372 NLRB No. 113 (2023): Clarified the standard for evaluating whether workplace rules are overly broad or interfere with employees' Section 7 rights.
Atlantic Steel Co., 245 NLRB 814 (1979): Outlined the factors to consider in determining whether an employee’s outburst or conduct loses the protection of the Act.
Asante, 19-RC-316663 (Regional Election Decision)
On April 21, 2023, SEIU Local 49 filed a petition to represent non-professional employees at Asante Rogue Regional Medical Center in Medford, Oregon. The proposed bargaining unit included various positions like nursing assistants, technicians, food service workers, and other support staff, totaling approximately 1,113 eligible voters.
The hospital and union entered into a Stipulated Election Agreement on May 11, 2023. An election was held on June 8-9, 2023. The results were extremely close: 440 votes against unionization, 436 votes for unionization, with 67 challenged ballots that could have affected the outcome.
Between May and September 2023, SEIU filed multiple unfair labor practice charges against Asante. The union alleged that hospital management had:
Created an impression of surveillance of union activities
Interrogated employees about union activities
Threatened reprisals for union discussions
Threatened job and benefit losses if unionization occurred
Restricted pro-union employees' access while allowing others
Selectively enforced rules against union literature
On December 23, 2024, the NLRB's Regional Office issued a consolidated complaint covering all these charges. The complaint sought a bargaining order as a remedy, arguing that Asante's conduct had made a fair election impossible.
On January 6, 2025, the Regional Director dismissed the representation petition. The dismissal was "subject to reinstatement," meaning the petition could be revived after the unfair labor practice charges are resolved. The Regional Director found that the serious nature of the alleged violations, their timing, and their widespread impact on employees made it inappropriate to proceed with the representation case while the unfair labor practice charges were pending.
In other words, the Regional Director in this case is aiming to certify SEIU as the representative through a Cemex bargaining order and dismissing the representation petition is part of doing so.
Significant Cases Cited
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): A single critical-period violation can justify a remedial bargaining order if it undermines election reliability.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Severe employer misconduct invalidating the election process justifies a bargaining order to protect employees' prior designation.
Rieth-Riley Construction Co., 371 NLRB No. 109 (2022): Merit-determination dismissals prevent elections tainted by concurrent unfair labor practices.
Lee Lumber & Materials Building Corp., 322 NLRB 175 (1996): Section 8(a)(5) violations establish a causal link between unfair labor practices and loss of majority support.