Hunton Employment & Labor Perspectives

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 to show discriminatory enforcement.

The Fifth Circuit also rejected the government’s argument that Apple could not rely on its housekeeping policy when it only removed flyers without allegedly removing other nearby items—such as water bottles and other trash. The Court held that Apple could legitimately draw a distinction in its housekeeping policy between discarded written materials and food without running afoul of the Act.

In reaching its decision, the Fifth Circuit expressly declined to follow out-of-circuit precedent that categorically prohibits restrictions on the distribution of union materials in non-work areas during non-work time, holding, instead, that only selective or discriminatory removal is unlawful. As the Court explained, the NLRA “only forbids selectively discarding union materials” and does not “prohibit the evenhanded enforcement of facially neutral housekeeping and non-solicitation policies.”