Apple to Push for Free Speech Tests in Labor Case at Fifth Cir.

Apple Inc.’s federal court appeal of an NLRB ruling that it illegally interrogated a worker includes an effort for new legal standards that would make it more difficult for the agency to police employers’ coercive questioning of employees.

The US Court of Appeals for the Fifth Circuit will hear oral argument Tuesday over Apple’s challenge to the National Labor Relations Board’s decision. The technology giant urged the court in its brief to use US Supreme Court precedent from First Amendment cases involving criminal threats and alleged defamation to guide its review of the board’s ruling in a labor law dispute.

That change would effectively raise the bar on what’s considered unlawful interrogation under the National Labor Relations Act and also subject NLRB rulings on such violations to a more exacting standard of review in federal court.

The case stems from Apple’s illegal interrogation of a worker at its World Trade Center store in Manhattan. The company is appealing the board’s ruling in the Fifth Circuit—known for its conservative judges and hostility to federal agencies—instead of the Manhattan-based Second Circuit thanks to federal labor law’s loose jurisdictional rules for appellate review.

Apple faced a wave of organizing efforts in recent years that has lately slowed. While workers at stores in Maryland and Oklahoma voted to unionize in 2022 and a New Jersey store rejected unionization last year, other organizing campaigns haven’t reached elections, including the one at the World Trade Center store.

The NLRB last year upheld an administrative law judge’s 2023 finding that an Apple manager coercively questioned a WTC store employee about a union drive that workers were trying to keep from their supervisors.

The company and agency will argue before a panel composed of Judges Priscilla Richman, a George W. Bush appointee; Don Willett, a Trump appointee; and Dana Douglas, a Biden appointee.

Employer Free Speech

Although the First Amendment provides strong protections against government limitations on speech, Congress is permitted to adopt time, place, and manner restrictions, said Anne Lofaso, a law professor at the University of Cincinnati who teaches labor and constitutional law.

The Supreme Court recognized the NLRB’s authority to regulate coercive employer speech in its 1941 decision in NLRB v. Virginia Electric & Power Co., Lofaso said. Congress later codified the high court’s view by amending the NLRA to say employers have free speech rights except when their speech contains a threat of reprisal or promise of benefits, she said.

Apple wants the Fifth Circuit to recognize a subjective requirement for proving employer speech violates the NLRA’s prohibition on coercion. The Supreme Court’s 2023 decision in Counterman v. Colorado, which dealt with threats made on Facebook, held that prosecutors must prove in “true threat” cases that defendants subjectively understood that their statements would be viewed as threatening.

“True, Counterman did not directly address the NLRA,” Apple said in its brief. “But its reasoning derives from the First Amendment, which obviously constrains the NLRA just as it constrains any federal or state statute.”

The NLRB said in its brief that Apple wants to transform labor law’s analysis to require that interrogations are only unlawful if they contain a true threat, a term of art meaning a serious communication of the intention to visit violence on the target of the statement.

Judicial Oversight

Apple also asks the Fifth Circuit to apply a heightened standard of review to the NLRB’s holdings on coercive interrogation.

Normally, courts will uphold the board’s factual findings when they’re supported by substantial evidence. But Apple argued that the board’s decisions on unlawful interrogation shouldn’t be given deference because of the First Amendment.

The company cited the Supreme Court’s 1984 decision in Bose Corp. v. Consumers Union of the United States, Inc., which involved alleged defamation of a speaker system, to support its call for independent court review.

But the Fifth Circuit—like every other federal appellate court that’s reviewed an NLRB interrogation decision—has been applying the substantial-evidence standard since the high court handed down Bose, the NLRB said.

“Apple’s position thus amounts to the claim that not only this Court, but every court, has been applying the wrong standard for decades,” the agency said.

The company will be represented at oral argument by Michael Kenneally of Morgan, Lewis & Bockius LLP. NLRB lawyer Joel Heller will represent the agency. The Communications Workers of America, which joined the case as an intervenor, will be represented by union lawyer Matthew Holder.

The CWA is affiliated with the Washington-Baltimore News Guild, which represents employees of Bloomberg Law.

The case is Apple v. NLRB, 5th Cir., No. 24-60242, oral argument scheduled 2/25/25.