05/07/2024: Apple Engaged in Illegal Interrogation of Union Activist

It also illegally confiscated union materials.

Apple Inc., 373 NLRB No. 52, 02-CA-295979 (Published Board Decision)

The Board found that Apple violated Section 8(a)(1) by:

1. Coercively interrogating an employee (Jordan Vasquez) regarding his protected concerted activity and union sympathies. The protected concerted activities were Vasquez's involvement in the union organizing committee, his discussions with management about employee compensation and benefits, and the open display of union support.

2. Confiscating union flyers from the employee breakroom, a non-working area. The Board has stated that,“Interference with employee circulation of protected material in nonworking areas during off-duty periods is presumptively a violation of the Act unless the employer can affirmatively demonstrate the restriction is necessary to protect its proper interest.” (Waste Management of Arizona, Inc.) Apple’s argument that it needed to remove the literature to maintain its “housekeeping and cleanliness standards” was rejected as that is not a “proper interest.”

3. Selectively and disparately enforcing its Solicitation and Distribution Policy by prohibiting the placement of union flyers on the employee breakroom table while permitting solicitation and distribution of non-union materials. (Ozburn-Hessey Logistics, LLC.)

Apple urged the Board to modify its longstanding approach to analyzing whether interrogations are illegal by including a requirement that there be a showing that the person being interrogated actually felt coerced by the interrogation. At present, all that needs to be shown is that the interrogation would reasonably tend to coerce a worker being subject to it. The Board declined to make any such modification, citing NLRB v. Gissel Packing Co.

The most interesting thing about the decision is that the Board also declined the General Counsel's request to overrule AT&T Mobility, LLC, regarding the remedy for unlawfully applied but facially lawful rules. Prior to AT&T Mobility, any time an employer applied a work rule against protected activity, the Board required the employer to rescind that rule going forward. This was the case regardless of how the rule was written, i.e. even if the rule was written in a way that was legal and would not be read as applying to protected activity. After AT&T Mobility, these kinds of rules — facially legal rules that were applied against protected activity — did not have to be rescinded going forward.

The logic behind the holding in AT&T Mobility is clear enough. Why should a rule that is legal have to be rescinded just because the employer applied it in an illegal way? You can just require the employer to cease and desist from applying the rule in that way. You don’t need to make them actually rescind the rule entirely.

On the other hand, one goal of Board remedies is to make sure that workers are not afraid to exercise their rights going forward. Allowing a rule that was applied against protected activity to remain in place may not achieve this goal even if there is an order to cease and desist from applying it in an illegal way. After all, workers will have just seen their employer apply the rule against protected activity and may conclude that, since the rule still exists, it could be applied against protected activity again.