With Charge against Apple, NLRB General Counsel Seeks to Expand Scope of Protected Concerted Activity
ABSTRACT: The NLRB has charged Apple with violating the National Labor Relations Act by maintaining and enforcing facially-neutral policies against soliciting and distributing literature in the workplace during a union organizing campaign. In this case, the General Counsel has signaled her intent to continue expansion of worker rights.
Apple was recently charged with violating the NLRA by enforcing a facially-neutral policy against solicitation and distribution in the workplace, which General Counsel Jennifer Abruzzo has alleged has the effect of violating workers’ rights to solicit union membership and distribute union literature. Furthermore, the GC alleged enforcement of the policy, along with interrogation of suspected organizing employees, was intended to chill a union organizing campaign at an Apple store. A hearing was recently held before an administrative law judge, and at the end of February, the Union (Communications Workers of America), Apple, and the GC submitted their post-hearing briefs. In its briefing, the GC signaled the long-anticipated further expansion of “protected concerted activity” under the Act. Although the Board need not adopt the GC’s arguments in their entirety, the briefs speak clearly to the GC’s enforcement priorities in the second half of President Biden’s term. The briefing also confirms the GC is intent on following through on her vocal support of workers’ rights.
It is crucial that employers and practitioners keep up with this rapidly developing area of the law. Contrary to popular misconception, the NLRA provisions related to “protected concerted activity” apply with equal force to employers without unions as they do to union shops. Although the Apple case applies in the context of a union organizing campaign, concerted activities need neither be organized nor with the aid of a union at all. In short, employers should treat any employee complaint or comment about working conditions as protected activity. The Board has also recently held that severance agreements which contain non-disparagement and confidentiality clauses may run afoul of the Act, where they potentially hinder employees’ rights to discuss working conditions. Clearly, the Board is rapidly changing the playing field. Employers should always be aware that when an administration changes from Republican to Democrat (or vice versa), NLRB policies are likely to undergo significant changes.
Section 7 of the Act protects “concerted” employee conduct for employees’ “mutual aid and protection.” The current GC has been aggressive about seeking expansion of Section 7 to include a broader range of activity, even beyond the Obama Board and other employee-friendly predecessors. This GC has been particularly focused on the remedial nature of the Act and its Depression-era origins. The importance for all employees is sharpened even further by the Board’s recent decision to expand the traditional “make whole” remedy to include reasonably foreseeable consequential damages.
The GC noted in its briefing that concerted activity includes not only an explicit group complaint, but also “when the totality of the circumstances supports a reasonable inference that the employee was seeking to initiate or prepare for a group action.” A creative employee could bend almost any workplace complaint to fit this expansive definition of “concerted activity.” Under such a definition, employers should consider most any complaint or comment about working conditions to be protected under the Act.
Factual Background and Board Charges
In May 2022, the Union filed a charge alleging Apple violated Section 8(a)(1) of the Act by maintaining and enforcing a “solicitation and distribution policy” at its World Trade Center store in New York City that violated employees’ Section 7 rights. Since 2016, Apple maintained a facially-neutral policy against solicitation for any business and distribution of any literature, regardless of content. Prohibited solicitation included “for your own hobbies or business (such as jewelry, makeup, personal training services), charitable campaigns or political causes – during work time.” Employees could not distribute literature of any kind 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.”
In January 2021, employees at the WTC store began working with the Union to form an affiliate “Apple Retail Union.” In May and June 2021, as the Union organizing campaign began heating up, employees placed Union flyers on the breakroom tables at the WTC Apple Store, in employee bathrooms, and on bulletin boards in employee common areas. By placing Union flyers in these areas, the employees violated Apple policy, and on several occasions, Apple managers allegedly removed the flyers from breakroom tables, bulletin boards, and bathrooms. Apple managers are also accused of interrogating employees who were suspected of being involved in the organizing campaign.
The GC argued that Apple violated the Act by prohibiting distribution of union literature in breakrooms and other “nonworking” areas. Exercise of Section 7 rights includes the right to communicate at the job site regarding both organizing efforts and the terms and conditions of employment. The Board has long held that since employees are most likely to interact, they need not limit union organizing discussions to off-duty hours, off-premises. However, employers may limit such discussions under “special circumstances” necessary to “maintain production or discipline.” The GC and the Board are likely to make it even more difficult for employers to reach that already lofty standard.
Finally, the GC argued that confiscation of union literature from non-working areas is presumptively a violation of the Act, unless the employer “can affirmatively demonstrate the restriction is necessary to protect its property interest.” Therefore, solicitation and distribution policies do not fall within the ambit of the watershed 2017 decision in The Boeing Co., 365 NLRB No. 154. According to the GC’s argument, “work rules prohibiting solicitation during nonworking time in work areas and distribution during nonworking time in nonworking areas are presumptively unlawful unless the employer can demonstrate the restrictions are necessary to maintain production or discipline.”
Importantly, an employer will not be protected by promulgating a blanket prohibition of solicitation or distribution. An employer may have and enforce a work rule barring employees from selling yoga pants, timeshares, or candles, or trying to rally support for a political candidate or attract religious converts. But if the rule is maintained in a manner that interferes with employees’ distribution or solicitation rights, it violates Section 7 if the employer cannot show special circumstances justify the rule. Moreover, the Board will have no problem finding a violation where an employer removes union literature but permits other non-union literature (such as coupons, event flyers, advertisements, and the like) to remain.
What should employers do in light of the Apple case and the emerging Board law which seems to favor employees?
- Evaluate workplace solicitation and distribution policies to ensure they do not unlawfully restrict Section 7 rights. A policy which prohibits distribution and solicitation “except for information related to the terms and conditions of employment” might pass muster with the Board. Such a policy, however, must still be applied in a consistent manner that does not infringe employees’ Section 7 rights.
- Avoid any rule or action that would chill union activity in nonworking areas during off-duty time. If a discussion is taking place in a breakroom during the lunch hour, managers should be trained to not go in and “break it up,” even if such discussions make others uncomfortable. Of course, employers may still enforce disciplinary rules if, say, a physical fight breaks out among co-workers.
- Remember the acronym TIPS for responding to organizing campaigns. Avoid any activity by management that could be interpreted as a Threat, Interrogation, Promise, or Surveillance related to union organizing. Whether inquiries about a campaign comprise unlawful coercive interrogation is a multi-factor analysis, but keep in mind the GC and the Board are likely to have a dim view of an employer’s questioning of an employee about the union.
- Employees are more likely to invite a union into the workplace where there are communication problems with management or uncompetitive pay and benefits. Nothing prohibits an employer from asking employees how to improve working conditions, but employers should take care not to make it seem like a “promise” to raise wages and benefits if employees vote against the union. If employers are pro-active about addressing workplace problems as they arise, unions will have less traction with employees.
- Start planning now how to respond to union activity and training managers on how to respond (or more often, refrain from taking action). The added publicity from Board actions against large companies like Apple will no doubt draw the attention of employees in all industries and companies of all sizes. Advanced planning now may help resist a charge and adverse finding by the Board, and perhaps resist the organizing campaign altogether.