July 7, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • Apple Inc. v. NLRB, 24-60242, appeal from order of NLRB
    • Willett, J. (Richman, Willett, Douglas), Douglas, J., concurring; labor law
    • Reversing NLRB order that Apple violated the National Labor Relations Act at an Apple retail store by coercively interrogating an employee and by removing unionization literature from a break room.
    • This Fifth Circuit case arises from unionization efforts at an Apple retail store in New York. The National Labor Relations Board (NLRB), adopting an administrative law judge’s findings, held that Apple violated the National Labor Relations Act (NLRA) by coercively interrogating an employee and unlawfully removing union flyers from a breakroom. However, the Fifth Circuit reversed, finding that substantial evidence did not support either of the NLRB’s conclusions. The court held that the alleged coercive interrogation lacked indicia of coercion under the “totality of the circumstances” test, and that Apple’s policy enforcement regarding flyer removal was content-neutral and consistent.
    • The interrogation at issue involved a conversation between senior manager Stephanie Gladden and employee Jordan Vasquez on the store’s public sales floor. Gladden asked about Vasquez’s meeting with HR and, allegedly, about his views on unionization. Vasquez testified he was evasive because the organizing committee was keeping its efforts secret. The NLRB interpreted his evasion as evidence of a coercive atmosphere. The Fifth Circuit disagreed, emphasizing that Apple lacked a history of anti-union behavior, that Gladden’s inquiry was brief and non-threatening, and that she explicitly reaffirmed employees’ rights to unionize. The court found no substantial evidence of coercion.
    • The second issue concerned Apple’s removal of union flyers left unattended in the employee breakroom. The Board held this was an unfair labor practice, arguing that Apple selectively targeted union materials. Apple countered that it consistently enforced a general cleanliness policy and its written Solicitation and Distribution Policy against all unattended materials, regardless of content. The Fifth Circuit found Apple’s position supported by the record: it had previously removed flyers for personal events, restaurant menus, and other non-union items and had addressed employees who left such items behind.
    • The court also rejected the Board’s arguments that the selective enforcement claim was supported by isolated instances of Shake Shack coupons or newspapers being left undisturbed. These sporadic lapses did not prove discriminatory enforcement, especially in light of Apple’s consistent removal of various non-union materials, including just days before the union flyers were posted. The court concluded that Apple applied its policies evenly and that its actions did not reflect anti-union animus or constitute unlawful interference.
    • Judge Douglas concurred, agreeing that reversal is appropriate but writing separately to clarify that Apple’s removal of union flyers was based on its non-solicitation policy, not its general housekeeping policy. Although Apple initially cited both policies, the evidence—including testimony from multiple managers—shows that the non-solicitation policy was the primary basis for removing the flyers. Because the flyers were not removed under the housekeeping policy, there is no need to consider whether that policy was selectively enforced. The key issue is whether Apple selectively enforced its non-solicitation policy, and Judge Douglas concurs with the majority that substantial evidence does not support the Board’s finding of such selective enforcement.

Unpublished opinions

  • U.S. v. Hill, 25-20042, c/w 25-20053, appeal from S.D. Tex.
    • per curiam (Stewart, Willett, Wilson), habeas corpus
    • Dismissing for lack of appellate jurisdiction purported denial of sec. 2255 petition, and dismissing as frivolous appeal from denial of motion for bail pending disposition of 2255 petition.
  • Whittington v. Harris County, 24-20172, appeal from S.D. Tex.
    • per curiam (Dennis, Oldham, Douglas), Oldham, J., dubitante; employment discrimination, municipal liability, appellate jurisdiction
    • Affirming in part and reversing in part summary judgment in favor of county on employee’s employment discrimination claims.
    • Judge Oldham files a dubitante opinion, expressing his doubt that a notice of appeal was timely filed and that the Court has appellate jurisdiction.
  • Paloma Resources, L.L.C. v. Axis Insurance Co., 22-20228, appeal from S.D. Tex.
    • Richman, J. (Stewart, Dennis, Richman), insurance
    • Vacating partial summary judgment in favor of insurer on applicability of intellectual property exclusion; and affirming summary judgment in favor of insurer on lack of duty to indemnify insured for expenses to defend insured’s employee.
  • U.S. v. Watson, 24-40439, appeal from E.D. Tex.
    • per curiam (Richman, Douglas, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sarabia-Garcia, 24-40743, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.