On July 7, 2025, the United States Court of Appeals for the Fifth Circuit in Apple Inc. v. NLRB (Case No. 24-60242) handed Apple a victory, declining to enforce the NLRB’s ruling that Apple had violated the National Labor Relations Act by unlawfully confiscating union literature left in an employee breakroom. In doing so, the Fifth Circuit made clear that employers can lawfully remove discarded union literature so long as the employer does so pursuant to a lawful and evenhanded housekeeping policy.
At the outset, the Firth Circuit reaffirmed the general principle that, though employees have a Section 7 right to distribute union materials in non-working areas during non-working time, employers can lawfully restrict employee distribution when those restrictions are supported by “special circumstances.” The Court noted that an employer, for example, may lawfully remove union materials pursuant to a “consistently enforced housekeeping policy” so long as the policy is “genuine and not a pretext for discrimination.”
In finding that Apple did not violate the Act when its managers removed union literature from break areas, the Fifth Circuit noted Apple’s “evenhanded” enforcement of its housekeeping policy under which Apple managers “attended personally to breakroom tidiness” and removed both union and non-union materials alike “with equal zeal.” In doing so, the Court rejected the NLRB’s attempts to use purported evidence of Apple’s occasional and isolated lapses in enforcement...
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