Apple Inc.

373 NLRB No. 52 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Apple, Inc. and Communications Workers of America, AFL–CIO. Case 02–CA–295979 May 6, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On June 20, 2023, Administrative Law Judge Lauren Esposito issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. The General Counsel filed limited exceptions and a sup- porting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The judge concluded, among other things, that the Respondent vio- lated Sec. 8(a)(1) by interrogating an employee regarding his protected concerted activity and union sympathies. On exception, the Respondent argues that the Board should modify its longstanding objective standard for analyzing alleged unlawful interrogations to add a subjective mental- state requirement, consistent with the Supreme Court’s recent decision in Counterman v. Colorado, 600 U.S. 66 (2023) (holding that, in criminal cases involving “true threats,” to avoid chilling speech protected by the First Amendment, the government must prove that the defendant at least acted recklessly, i.e., that the defendant had a subjective understanding of the threatening character of their communications and delivered them anyway). The Respondent’s argument is without merit. Counterman is inapplicable here, as it involved a criminal prosecution, and the Supreme Court’s decision gave no indication that its principles or reasoning ex- tends to cases arising under the National Labor Relations Act. Accord- ingly, we find it appropriate to apply the Board’s longstanding objective standard, endorsed by the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620 (1969). We also find the Respondent’s reliance on Bozzuto’s Inc. v. NLRB, 927 F.3d 672 (2d Cir. 2019), denying enf. in relevant part 365 NLRB No. 146 (2017), to be misplaced. Bozzuto’s involved a brief “chance encoun- ter,” during which the respondent’s Senior Vice President asked an open union supporter a single question: “what’s going on with this Union stuff?” Id. at 687. In this case, by contrast, Senior Manager Stephanie Gladden deliberately approached employee Jordan Vasquez, questioned him regarding a meeting at which he communicated a group concern about wage rates, asked how many employees he had spoken to about wage rates, and then asked what he thought about the unionization ef- forts. Thus, Gladden’s comments involved more extensive probing, and sought more specific information regarding Vasquez’ protected con- certed activities and union sentiments, than the Senior Vice President’s “offhand” remark at issue in Bozzuto’s. Moreover, unlike the employee The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions,2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recom- mended Order of the administrative law judge as modified below and orders that the Respondent, Apple, Inc., New York, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 2(a). “(a) Post at its facility at 185 Greenwich Street, New York, New York, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecu- tive days in conspicuous places, including all places where in Bozzuto’s, Vasquez was not an open union supporter at the time of the questioning. With respect to the judge’s finding that the Respondent violated Sec. 8(a)(1) by disparately enforcing its solicitation and distribution policy, the General Counsel filed limited exceptions urging the Board to over- rule AT&T Mobility, LLC, 370 NLRB No. 121 (2021), find that unlaw- fully applied rules are unlawful to maintain, and expand the Board’s rem- edy for the unlawful application of facially lawful rules. We decline the General Counsel’s request at this time. Chairman McFerran dissented in relevant part in AT&T Mobility and adheres to the views she stated there. She nevertheless applies AT&T Mobility for institutional reasons for the purpose of determining the remedy in this case. Members Prouty and Wilcox were not members of the Board when AT&T Mobility issued. While they acknowledge that AT&T Mobility is currently governing law for the purpose of determining the remedy in this case and apply it here for institutional reasons, they would be open to reconsidering it in a fu- ture appropriate case. 3 We shall amend the judge’s remedy and modify the judge’s recom- mended Order in accordance with our decisions in Paragon Systems, 371 NLRB No. 104 (2022), and Excel Container, Inc., 325 NLRB 17 (1997). 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tices must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notices must also be posted by such electronic means within 14 days after service by the Region. If the notices to be physically posted were posted electronically more than 60 days before physical posting of the notices, the notices shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an in- tranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. The Respondent shall take rea- sonable steps to ensure that the notices are not altered, de- faced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since May 9, 2022.” Dated, Washington, D.C. May 6, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Ruth Weinreb, Esq. and Tanya Khan, Esq., for the General Coun- sel. Sumanth Bollepalli, Esq., for the Charging Party. Jason R. Stanevich, Esq. and Maura A. Mastrony, Esq. (Littler Mendelson, P.C.), of New Haven, Connecticut for the Re- spondent DECISION STATEMENT OF THE CASE LAUREN ESPOSITO, Administrative Law Judge. On September 30, 2022, the Regional Director, Region 2, issued a complaint and notice of hearing against Apple, Inc. (Apple or Respondent), based upon a charge filed on May 18, 2022, by Communications Workers of America, AFL–CIO (CWA or the Union). On Octo- ber 14, 2022, Apple filed an Answer denying the complaint’s material allegations. The complaint alleged that Apple violated Section 8(a)(1) of the Act when it selectively and disparately en- forced its Solicitation and Distribution policy at its store located at 185 Greenwich Street, New York, New York, on May 15, 2022, May 27, 2022, June 1, 2022, and on or about May 30 or 1 In addition, in her Posthearing Brief, General Counsel moves to amend the complaint to include an allegation that Apple violated Sec. 8(a)(1) of the Act by maintaining its Solicitation and Distribution policy June 2, 2022, by prohibiting the placement of union flyers on the store’s breakroom table, while permitting solicitation and distri- bution with respect to nonunion materials. The complaint further alleged that Apple violated Section 8(a)(1) by unlawfully inter- rogating employees regarding their support for the Union and protected concerted activities in or about early May 2022. Sub- sequently, on December 16, 2022, the Regional Director, Region 2, issued an Amendment to complaint to include an allegation that Apple violated Section 8(a)(1) by its confiscation of union flyers in a non-working area of the store on the above dates. Ap- ple filed an Answer to the Amendment on December 21, 2022. This case was tried before me by videoconference on January 9 and 10, 2022. During the hearing, counsel for the General Counsel (General Counsel) amended the complaint on the record to withdraw the allegations regarding incidents which allegedly occurred on May 30 or June 2, 2022.1 (Tr. 70–71.) On the entire record, including my observation of the demeanor of the wit- nesses, and after considering the briefs filed by General Counsel, Respondent, and Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Apple, a California corporation with headquarters located in Cupertino, California, and retail facilities located throughout the United States, including a store located at 185 Greenwich Street, New York, New York, is engaged in the development, manufac- ture and retail sale of consumer electronics and software. Apple admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Ap- ple also admits, and I find, that CWA is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Apple’s Retail Store and Operations at 185 Greenwich Street Apple sells and services consumer electronics devices and software at its retail store at 185 Greenwich Street, New York, New York. The store is located on two floors in the Oculus, a transportation hub in lower Manhattan across the street from the World Trade Center. (Tr. 198–199.) The store opened in August 2016, and has operated continuously since that time. (Tr. 194, 263.) For the purposes of this decision, the 185 Greenwich Street store will be referred to as the WTC store. The managerial hierarchy of the WTC store consists of four levels, and is generally organized along two lines, one for sales and one for customer service or “after-purchase support.” Tr. 195. A “Flagship Leader” or general manager is responsible for overall store operations; beginning in early April 2022 Mona Pa- tel held this position. (Tr. 195, 238–239.) Two “Store Leaders” report to the general manager of the WTC store, one responsible for sales and the other for customer service. (Tr. 195–196.) As of April 2022, the Store Leaders were Paul Distasio and Waleed Abdelal. (Tr. 196, 239, 296, 350.) Three senior managers in a manner that restricted the Sec. 7 activities of its employees. Posthearing Br. at 3, 32–37. APPLE, INC. 3 reported to each of the Store Leaders, and a number of managers reported to each senior manager. (Tr. 196.) As of April 2022, the senior managers for sales at the WTC store were Rachel Goldman and Yanell Brown, and the senior managers for cus- tomer service were Jorge Romero, Catherine Marshall, and one other individual.2 (Tr. 239–240, 264.) The managers reporting to the senior managers as of April 2022 included Aaron Sidrick and Ryan Radechel with respect to sales, and Matt Moya, Tyler Perroni, Dan Auerbach, and Priscilla with respect to customer service. (Tr. 241–243.) Jason Barilia was Apple’s market direc- tor for New York as of May 2022. (Tr. 258.) While there are approximately 20 to 25 job titles for non-man- agerial employees at an Apple store, these titles are generally grouped into four levels, contingent upon employee experience and expertise. (Tr. 196–197.) Entry-level employees, which comprise the majority of the non-managerial employees, are re- ferred to as the “specialist level.” (Tr. 197.) Directly above the “specialist” level is an “expert” level of employees. Above the “expert” level is a level referred to as “pro” or “genius,” and the highest level of non-managerial employees is referred to as the “lead” level. (Tr. 197.) Jordan Vasquez and Ian O’Hara, both of whom worked at the WTC store during the spring and summer of 2022, were called to testify by General Counsel. (Tr. 28, 115.) Vasquez testified that he sells products and services for Apple, and O’Hara stated that he worked for Apple as a technician. (Tr. 28, 115.) At the time of the hearing, Vasquez had been employed by Apple at a retail store near Houston, Texas, since September 2022, where he had begun working immediately after leaving the WTC store. (Tr. 27–28.) O’Hara began working as a technician at the WTC store on June 24, 2016, and his employment with Apple ended on November 24, 2022. (Tr. 115.) Joshua Jennison, Waleed Abdelal, Paul Distasio, Yanell Brown, and Stephanie Gladden were called to testify by Apple. Jennison was the Flagship Leader or general manager of the WTC store from its opening in 2016 through 2020, and from Jan- uary 2022 until the first week in April 2022. (Tr. 193–194.) As discussed above, Abdelal and Distasio are Store Leaders at the WTC store, and Brown was a senior manager in sales during the spring of 2022. Stephanie Gladden was a senior manager at the WTC store in sales as of May 2022, and is currently a Store Leader in Aventura, Florida. (Tr. 279, 281–282.) Both floors of the WTC store contain areas open to and visited by customers. (Tr. 198.) On the ground floor, which is dedicated to sales, customers purchase products and training is conducted. (Tr. 198.) The upper level of the store, referred to as the balcony level, is a sales floor as well, but also contains the customer 2 A third senior manager position for sales was open as of April 2022. Tr. 239. Brown left his employment with Apple in November 2022. Tr. 240, 264. 3 In particular, the parties stipulated that Vasquez accurately de- scribed the layout of the breakroom and other non-customer areas on the ground floor of the WTC store. Tr. 111-112; GC Exh. 4. 4 The Isaac device is also used by the employees to clock in and out for their shifts. Tr. 210–211, 248. 5 The staircase depicted in R. Exh. 22 does not lead to the breakroom, but connects the customer areas on the ground floor and the balcony. Tr. 247. service area, called the “Genius Bar,” where employees respond to customer questions and assist customers with products which are not property functioning. (Tr. 107–109, 110–111, 198.) Both of the WTC store’s two levels contain areas used only by store employees and management. The balcony level in- cludes a repair room where employees perform repair work on devices brought in by customers. (Tr. 199.) Off of the repair room is a smaller inventory area where spare computers and phones are stored for use by the customer service employees in their work, together with a few computers and desks also used by the customer service employees. (Tr. 199.) The ground floor contains three non-customer areas. (Tr. 195.) At the back of the store on the ground floor is a large inventory room where all of the store’s inventory is kept, including not only computers, phones, and iPad tablets but cleaning supplies and products. (Tr. 200.) Behind a video wall is a data room containing all of the electronics necessary for the store’s day-to-day operations, as well as a storage area for items used on an occasional basis. (Tr. 200.) The third noncustomer area, on the ground floor, includes the employee breakroom where the events at issue in the instant case took place. (Tr. 199–201.) The layout and uses of the employee breakroom and the rest of the non-customer area on the ground floor were established by video taken of the breakroom during the course of the store’s daily operations, photographs, and sche- matics, explicated by the witnesses.3 As one walks into the breakroom from the hallway, there is a silver rack immediately to the left where employees place their backpacks and belong- ings, and additional racks for clothing. (Tr. 44, 211-212; GC Exh. 4.) To the right as one enters the breakroom are shelves containing devices called “Isaacs,” used by the employees to ac- cept customer payments for products and services.4 (Tr. 45, 85- 86, 208–211, 216, 248–249; R. Exh. 22.)5 Next to the racks used for clothing are lockers for the employees' personal belongings. (Tr. 44, 211, 216–217; R. Exh. 22.) At the back of the break- room are refrigerators, and along the side is a sink, a microwave, and a coffee machine. (Tr. 45, 211–212.) In the middle of the room is a large table with chairs which employees use during non-work time, such as before and after their shifts and during breaks.6 (Tr. 45, 211–212, 216; GC Exh. 4; R. Exh. 22.) Thus, employees spend time at the breakroom table eating meals, read- ing, playing games, and conversing with one another during their lunch and break periods. Tr. 64, 128, 217-218. Managers often enter the breakroom during their shifts, and may use the area for these same purposes. Tr. 65-66, 219. As one exits the breakroom there is a large whiteboard mounted on the wall to the right.7 (Tr. 98, 107, 109–110, 204, 6 Employees at the WTC store receive an unpaid one hour lunch break and two paid 15-minute breaks per shift. Tr. 28-29, 115–116, 217. 7 Jennison testified that the whiteboard contains postings of material “either approved at Apple or at a higher level.” Tr. 204. At the time that the whiteboard was installed in 2017, Distasio and Jennison had an e- mail exchange discussing the manner in which it would be used and ap- propriate direction to employees, which included a statement that “we should never use [the whiteboard] for solicitation.” Tr. 360–362; R. Exh. 20. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 207–208, 216, 246; R. Exh. 21, 22.) If one turns left coming out of the breakroom, there are additional tables sometimes used by employees on their breaks, a small bank of lockers, and, down a hall about ten to fifteen steps, a manager’s office, which contains desks with computers.8 (Tr. 45–46, 200–203, 246, 254–255; R. Exh. 23.) If one turns right, a hallway leads out to the sales floor. (Tr. 46, 203–204, 215–216, 247–248; R. Exh. 22.) If one con- tinues straight down the hall after emerging from the breakroom, there is a table with chairs for the employees’ use, together with vending machines and the employee bathrooms. (Tr. 46, 203– 204, 247.) At all times material to the complaint’s allegations, Apple maintained the following Solicitation and Distribution Policy ap- plicable to the WTC store: Solicitation and Distribution As an Apple employee, youʼre not permitted to solicit other employees—including for your own hobbies or business (such as jewelry, makeup, personal training services), charitable campaigns or political causes—during work time. Addition- ally, you may not distribute material during work time or in a work area. Third parties are not permitted to distribute materi- als or solicit employees, vendors, or customers on Apple prop- erty at any time. Employees may not use Appleʼs bulletin boards to distribute materials or solicit employees, vendors, or customers. In addi- tion, third parties may not use any Apple system (electronic or physical) to distribute materials or solicit employees, vendors, or customers. Employees and third parties may not request or accept money, goods, or compensable services of any kind or for any cause, or buy or sell outside commercial products or services, at any time on Apple property, including during non-work time and in non-work areas. Apple facilities are generally for Apple business use only (in- cluding authorized Apple events, such as Appleʼs health and wellness fairs, product fairs, Appleʼs Employee Giving, or Di- versity Network Association activities) and may not be used for other non-Apple business activity without the prior written approval of Appleʼs Facilities Department. If youʼre approached by a third party wishing to distribute ma- terials or engage in any kind of solicitation on Apple property, you may ask them to leave. If you need any assistance, you may contact Global Security or Loss Prevention. If youʼre ap- proached by an employee who is distributing materials or en- gaging in solicitation during work time, you may ask them to stop. Alternatively, you may contact your manager or the Busi- ness Conduct Helpline (Tr. 9–10; Jt. Exh. 1.) Managers are versed in the Solicitation 8 Jennison testified that although a sign next to the door says “man- ager’s” or “leadership” office, the office is crowded with employees coming in to “check their email” or “complete paperwork,” and that the and Distribution Policy through required annual compliance or business conduct training, and employees receive notice of the Policy during “core training” after they are hired. (Tr. 224, 256– 257, 265, 298–299, 351–352.) The Policy is also available on Apple’s internal employee website, as well as its “People” or hu- man resources website. (Tr. 298–299, 351–352.) General Counsel and Apple’s witnesses both testified regard- ing the company’s practices with respect cleaning the break- room. Jennison testified that Apple engaged an outside contrac- tor which provided cleaning services in both the customer and employee-only areas of the store. (Tr. 219–220.) This contractor is responsible for emptying trash, mopping, cleaning up spills, wiping down counters, and restocking items like Kleenex and hand sanitizer. (Tr. 220.) Jennison stated that after the store closed for the night the manager was responsible for ensuring with the cleaning crew that the breakroom was clean, so that no cleaning needed to be performed in the morning before the store opened. (Tr. 231–232.) Abdelal also testified that the store was cleaned every night. (Tr. 306–307.) Vasquez and O’Hara both testified that employees using the breakroom were expected to throw out their own trash and generally clean up after them- selves. (Tr. 68, 150–151.) B. Organizing Activity at Apple’s 185 Greenwich Street Store O’Hara and Vasquez testified regarding employee organizing activities at the WTC store during 2021 and 2022. O’Hara testi- fied that he initially contacted CWA in January 2021, and over the next 2 to 3 months created an organizing committee com- prised of himself and a few other employees. (Tr. 116.) The organizing committee held virtual meetings via Zoom once or twice each week to coordinate their activities, and communicated through the encrypted messenger application Signal, which the employees installed on their personal phones. (Tr. 117.) O’Hara testified that he sent messages to the organizing committee over Signal on a daily basis. (Tr. 118.) Vasquez testified that he joined the organizing committee in January 2022, and partici- pated in the weekly Zoom meetings and Signal communications. (Tr. 29.) Vasquez testified that he communicated with the or- ganizing committee via Signal multiple times each day. (Tr. 29– 30.) In addition, Vasquez testified that he had in-person conver- sations with other WTC store employees on a daily basis regard- ing the need for higher wages. (Tr. 30.) These conversations took place at the WTC store on the sales floor and in the break- room, and also outside of work. (Tr. 30.) In late April 2022, Vasquez spoke to senior manager Rachel Goldman regarding wage rates on the sales floor at the WTC store. (Tr. 30–31.) Vasquez testified that he told Goldman that he believed that the employees’ pay was too low, and asked whether there were ways that the employees could obtain higher wage rates. (Tr. 31.) Goldman referred Vasquez to Julissa Ro- driguez of Apple’s People Team or human resources. (Tr. 31.) On May 3, 2022, Vasquez spoke to Rodriguez over WebEx, stat- ing that the Apple employees needed higher wages and more va- cation time. (Tr. 32.) Rodriguez responded that she would office door is left open. Tr. 200-201. Vasquez and O’Hara both de- scribed this office as an office for management. Tr. 45–46, 54, 58–59, 127, 146. APPLE, INC. 5 discuss these issues with her managers.9 (Tr. 32.) On May 15, 2022, the organizing committee “went public” with respect to their campaign for representation by CWA. (Tr. 30, 39.) On that date, members of the organizing committee placed flyers on the breakroom table at the WTC store for the first time, in the manner discussed below. (Tr. 40.) In addition, beginning on May 15, 2022, members of the organizing commit- tee wore red wristbands that stated “CWA” on them during their shifts, and distributed the wristbands to other employees. (Tr. 40, 82, 160, 179–180.) In June or July of 2022, Vasquez spoke about his support for the Union during a “download,” a brief meeting conducted each morning where employees discuss events at the company and their duties and objectives for the day and the week. Tr. 75, 76- 77, 101. C. The Interaction Between Jordan Vasquez and Stephanie Gladden on May 9, 2022 Jordan Vasquez and Stephanie Gladden both testified regard- ing a conversation between them which occurred on May 9, 2022. At the time of this conversation, Gladden was a senior manager at the WTC store. (Tr. 32–33, 281–282.) Vasquez was familiar with Gladden from his work at the WTC store, and typ- ically spoke to her a few times each day on the sales floor or in the breakroom. (Tr. 32–33.) Vasquez testified without contra- diction that while the two had discussed non-work-related issues such as bicycling and bars around the city, they did not socialize outside of work and were not friends. (Tr. 33, 36.) On May 9, 2022, Gladden approached Vasquez on the balcony level of the WTC store between 11 a.m. and 12 p.m. Tr. 33, 283. Vasquez testified that he could recall the time of the conversation because the store was slow before the rush of customers that typ- ically arrived during the mid-day lunch period. (Tr. 34.) Glad- den also testified that she approached Vasquez, as part of her general practice to initiate contact with all employees on the floor at the inception of her shift, in order to determine whether they needed anything and how their shift was progressing. (Tr. 283–284, 290–291.) Vasquez confirmed that it was not unusual for Gladden to approach him during a shift. (Tr. 72–73.) No one else was present at the time. (Tr. 34.) Vasquez testified that after Gladden approached him, she asked him how he was doing, and then said that she had heard about Vasquez’ meeting with Rodriguez and asked about how the meeting went. (Tr. 34.) According to Vasquez, he told Glad- den that his meeting with Rodriguez went well, and that the two had discussed the need for higher pay for the Apple employees. (Tr. 34, 73.) Gladden then asked Vasquez if he had spoken to other employees regarding the wage increase issue, and when Vasquez stated that he had done so, Gladden asked how many people he had spoken to. (Tr. 34, 73.) Vasquez stated in re- sponse that he was not keeping track of that information. (Tr. 34, 73.) According to Vasquez, Gladden then asked him what he thought about the unionization efforts at Apple. (Tr. 34–35.) 9 Goldman and Rodriguez did not testify at the hearing. 10 Vasquez testified that he did not tell Gladden about his activities with the union organizing committee because “We were trying to keep all that information under wraps [so] as to not alert managers that we were trying to form a Union.” Tr. 35. Vasquez responded that he did not have time to pay attention to that issue because he was running for Congress. (Tr. 35.) How- ever, Vasquez said he was concerned that his name had been as- sociated with the union organizing campaign at Apple, and he did not want his name associated with something that he was not a part of.10 (Tr. 35.) Gladden said that she believed that Apple would always do the right thing in the end, and Vasquez agreed. (Tr. 3.)(Tr. 284–285). Gladden testified that she told Vasquez that unionization was something that he could talk about and en- gage in, and asked why he was upset given that union activity was permitted. (Tr. 285.) According to Gladden, Vasquez re- sponded that he did not have time to engage in union activity because he was running for Congress. (Tr. 285.) Gladden testi- fied that she then asked Vasquez how his knee was healing after a recent injury, and whether he was able to stand during his shift, and Vasquez thanked her for inquiring but stated that he was feeling better. (Tr. 289.) Gladden stated that Vasquez raised the topic of union activity, and denied asking Vasquez questions re- garding who, if any, of his co-workers may have supported the union. (Tr. 285–286.) Gladden also testified that Vasquez did not discuss “pay inequities” or “his views towards his compen- sation” as an Apple employee, and that she did not ask Vasquez any questions regarding “his compensation or [the] compensa- tion of his colleagues.” (Tr. 290.) Gladden testified that the sales floor was busy at the time of their conversation. Tr. 289. Vasquez testified that after his conversation with Gladden, he went to the back area off of the sales floor and spoke with O’Hara, telling O’Hara that Gladden had asked about his thoughts regarding unionization. (Tr. 36, 118–119.) O’Hara en- couraged Vasquez to specifically identify Gladden in the organ- izing committee’s group chat to inform the committee. (Tr. 119.) Vasquez then sent a message to the organizing committee via Signal, stating “They just had a union feeler convo with me I’ll explain when I get a chance.”11 (Tr. 36–38, 80–81, 120; GC Exh. 2.) About 15 minutes later, O’Hara responded on Signal, stating, “Stephanie [G]ladden was the manager who tried to talk to you about unions, correct?” (Tr. 37, 120–121, 122; GC Exh. 2.) Vasquez did not respond to O’Hara’s message. (Tr. 158–159.) Vasquez testified that as he was leaving work that day he ap- proached Goldman outside the store, and told Goldman that a manager was asking him what he thought about unions. (Tr. 38– 39.) Vasquez asked Goldman if she knew why he was being questioned. (Tr. 39.) Goldman said that she did not know why it was happening but could look into it, and then asked Vasquez who had questioned him. (Tr. 39.) Vasquez said that he did not want to disclose who had questioned him, but was only checking to see whether Goldman knew anything about the issue. (Tr. 29.) Goldman reiterated that she would look into it. (Tr. 39.) D. The Events of May 15, 2022 As discussed above, May 15, 2022 was the date that the or- ganizing committee “went public” with respect to the union or- ganizing campaign at the WTC store. That was the first date that 11 Vasquez is identified in this series of Signal messages as “Clemen- tine Vasquez,” his legal name since late December 2021. Tr. 27, 37, 121–122; GC Exh. 2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Vasquez and O’Hara distributed union flyers, both outside the store and inside the breakroom. (Tr. 40–41.) In addition to the testimony of Vasquez and O’Hara, General Counsel introduced into evidence as General Counsel’s Exhibit 4 a video of the breakroom at the WTC store filmed on May 15, 2022. (Tr. 42, 59.) The video begins at 7 a.m. and runs continuously through 9 p.m., with time stamps beginning at 0 for 7 a.m. (Tr. 43; GC Exh. 4.) In the discussion that follows, references to the video time stamps from General Counsel’s Exhibit 4 will be denoted in parentheses. The flyers Vasquez and O’Hara placed on the breakroom table on May 15, 2022, attached hereto as Appendix B, contained the logo of the Apple Retail Union CWA, and stated “Higher Pay, Better Benefits, More Representation.” (Tr. 40–42, 122–124; GC Exh. 3.) Two QR codes appeared on opposite sides of the Apple Retail Union CWA logo. Explanatory text for one of the QR codes stated, “Read our store’s Vision Statement here,” and explanatory text for the other QR code stated, “Add your name to join the movement.” (GC Exh. 3.) WTC store employees could scan these QR codes with their phones, and be directed to a mission statement prepared by the organizing committee and union cards which appeared on the Union’s website, respec- tively. (Tr. 63, 161–163; GC Exh. 3.) On May 15, 2022, Vasquez first entered the breakroom at ap- proximately 7:37 a.m., prior to the 8 a.m. start of his shift.12 (Tr. 40-41, 47 (37:42).) Vasquez walked around the breakroom table and placed two flyers next to one another, face up, on the break- room table. (Tr. 49 (37:53).) Seconds later, O’Hara entered the breakroom, wearing a pink baseball cap. (Tr. 49 (38:02).) O’Hara proceeded to place two union flyers on the breakroom table, face up, on the side of the table opposite to the flyers Vasquez had placed. (Tr. 50 (38:28).) Store Leader Waleed Ab- delal was in the breakroom next to Vasquez during this time. (Tr. 50.) Approximately 10 minutes later, Abdelal entered the break- room again for a few seconds, then manager Matt Moya entered, took a photograph of the union flyers on the table, and left.13 (Tr. 51, 124-125 (49:55, 50:02, 50:53-51:17).) About an hour later, Abdelal entered the breakroom, removed all of the union flyers from the table, and exited the breakroom, turning left. (Tr. 53- 55 (1:51:08-1:51:24).) During their lunch break from 3 p.m. to 4 p.m., Vasquez and O’Hara replaced the union flyers that Abdelal had taken from the breakroom table earlier. (Tr. 55 (5:05:39-5:06:08).) A minute later, Moya entered and exited after viewing the breakroom ta- ble. (Tr. 55–56, 126 (5:07:45-5:07:58).) A few minutes later, Vasquez and O’Hara left the breakroom to eat lunch at the tables and chairs located in the hallway. (Tr. 56-58 (5:11:05-5:11:08).) Seconds later, Moya returned, removed the union flyers Vasquez and O’Hara had place on the breakroom table, and exited the 12 Vasquez identified himself as the individual who appears on Gen- eral Counsel’s Exhibit 4 wearing a red beanie hat. Tr. 47. The parties stipulated that Vasquez accurately identified O’Hara and the various managers depicted in the video. Tr. 111–112; GC Exh. 4. 13 Vasquez testified that prior to May 15, 2022, he had never seen any manager take a photograph of anything on the breakroom table. Tr. 52. Abdelal testified that one of the managers “took photos as part of just letting us know something was in the break room.” Tr. 326. Abdelal testified that it was not unusual for “our leaders, or team” to take breakroom. (Tr. 58, 127 (5:11:15-5:11:33).) From their table in the hallway, Vasquez and O’Hara saw Moya turn down the hall- way in the direction of the management office.14 (Tr. 58–59, 127–128.) About an hour later, O’Hara entered the breakroom and placed union flyers on the table again. (Tr. 83–84, 171 (6:01:27- 6:02:05). ) The video shows O’Hara briefly conversing with someone immediately after placing the union flyers on the table (6:02:05-6:02:17, 6:02:31-6:02:54). Vasquez then entered the room and spoke to O’Hara (6:03:02-6:03:10). O’Hara then picked up the flyers and, after exchanging a few words with the same individual,15 placed them in his bag. (Tr. 84-85, 171 (6:03:15-6:03:48).) O’Hara testified that he could not recall why he removed the union flyers from the table at that time. (Tr. 172, 173.) Abdelal addressed the removal of union flyers from the break- room table on May 15, 2022, during his testimony. Abdelal tes- tified that on May 15, 2022, “a number of” managers had told him that there were union flyers on the breakroom table. (Tr. 309–310.) Abdelal told the managers that if the union flyers were left behind, the managers should just remove them, but the managers “were very nervous” and “uncomfortable,” “[b]ecause of the type of material,” “union literature,” which they had never encountered before. (Tr. 310, 311, 331.) According to Abdelal, “throughout the entire day this was an ongoing conversation with multiple leaders about their concern about removing the litera- ture.” (Tr. 331–334.) Abdelal stated that the managers “really struggled,” so he “just went in and took them and threw them out” himself. (Tr. 310, 311.) Abdelal testified that he told the other managers that if union flyers were discovered in the future, “we would clean it up like anything else,” to the extent that they were “abandoned.” (Tr. 312.) During the afternoon of May 15, 2022, Vasquez approached Abdelal outside of the store, having heard that Abdelal had re- moved the union flyers from the breakroom table earlier. (Tr. 59–60.) Vasquez asked Abdelal why he had removed the union flyers that day, and Abdelal stated that Apple has a no-solicita- tion policy that prohibited Vasquez from distributing the union flyers. (Tr. 60, 312.) Abdelal testified that he also discussed Apple’s cleanliness standards with Vasquez. (Tr. 312.) Vasquez stated in response that he and O’Hara were employees, and that they were placing the union flyers on the breakroom table during non-work time, but Abdelal stated that Vasquez was nevertheless prohibited from doing so. (Tr. 60.) Abdelal testified that Vasquez also contended that Abdelal was implementing the pol- icy selectively because Apple had previously distributed Shake Shack coupons to the employees, and Abdelal stated that Apple had issued specific vouchers for the employees to use at Shake Shack. (Tr. 312–313.) According to Abdelal, Vasquez also photographs of the breakroom “to celebrate, you know, someone did a really great job” as well as “calling out when standards have been unac- ceptable and we would share a photo of it.” Tr. 341. 14 Abdelal testified that he “may have” told Moya to shred the union flyer on May 15, 2022. Tr. 326, 327–329. Moya did not testify at the hearing. 15 Both Vasquez and O’Hara testified that they were unable to identify this person on the video. Tr. 85, 173. APPLE, INC. 7 mentioned that employee Andrew Goebel had distributed flyers for his going-away party, and Abdelal told Vasquez that he had discussed the policy with Goebel in that context. (Tr. 313.) Ab- delal also told Vasquez that he could send Vasquez the policy if he wanted to review it, and Vasquez asked Abdelal to do so. (Tr. 60–61.) Abdelal sent Vasquez the policy by text later that day. (Tr. 61; Jt. Exh. 1.) After reviewing the no-solicitation policy, Vasquez asked to discuss it with Abdelal the next day on the sales floor. (Tr. 61.) Vasquez told Abdelal that he had reviewed the policy and did not believe that he and O’Hara had violated it, because they dis- tributed the union flyers during non-work time and in a non-work area. (Tr. 61–62.) Abdelal stated that Vasquez needed to respect the policy, which prohibited distribution of union flyers as he and O’Hara had done. (Tr. 62.) Abdelal also suggested that Vasquez speak to Rodriguez again regarding the issue. (Tr. 62, 312.) A few days later, Vasquez spoke with Rodriguez by phone. (Tr. 62.) Vasquez described the situation to Rodriguez, and said that after reviewing the no-solicitation policy he did not believe that he had violated it. (Tr. 62.) Rodriguez said that the employ- ees were not permitted to distribute third-party material such as Girl Scout cookies. (Tr. 62–63.) Vasquez stated that he and O’Hara were not third parties, but Apple employees. (Tr. 63.) Vasquez testified that after May 15, 2022, he did not leave any other union flyers in the breakroom, because multiple Apple managers had informed him that it constituted a violation of company policy. (Tr. 63–64.) E. The Events of May 27, 2022 O’Hara testified that on May 27, 2022, he distributed union flyers by placing them in the center of the breakroom table before his shift began at 11:30 a.m. and during his lunch break after 4 p.m. (Tr. 130–131, 132–133.) O’Hara stated that he placed be- tween four and six flyers on the table before his shift, and three flyers during his lunch break. (Tr. 131, 132–133.) Other em- ployees were present in the breakroom when O’Hara placed the flyers on the table at these times. (Tr. 132–133.) In addition to the union flyers placed on the breakroom table previously, O’Hara placed a new union flyer on the table on May 27, 2022, which stated as follows: WHAT OUR UNION IS FIGHTING FOR: INCLUSION & EQUITY: Establish a concrete and actional program committed to diversifying store leadership through in- clusion and promotion of BIPOC, LGBTQ, and colleagues with disabilities. Reward multilingual employees monetarily for their leveraged contributions that are taken for granted. We’re all valuable and want fair representation. CAREER DEVELOPMENT: Protected, regularly sched- uled training and coaching time for current roles. Make inter- nal promotion the primary method for filling open positions. Establish clear and achievable career advancement paths. Em- ployee oversight when hiring for senior-level store positions. …And much more. (Tr. 134–135; GC Exh. 6.) The flyer also contained the Apple Retail Union CWA insignia, and a QR code with explanatory text stating, “Read the full Vision Statement here!” After placing the union flyers on the breakroom table during his lunch break, O’Hara remained in the breakroom speaking with a colleague. (Tr. 132–133.) A few minutes later, while O’Hara remained in the breakroom, senior manager Yanell Brown entered the breakroom and removed the flyers, without speaking to anyone. (Tr. 133–134.) Using his phone, O’Hara took a video of Brown removing the union flyers. (Tr. 135–136, 137–138; GC Exh. 7.) Brown testified that he did not realize what the union flyers were at the time that he removed them. (Tr. 271.) Brown stated that, “I just kind of saw them laying on the table and was kind of throwing out things as I would normally do and saw they were on the table,” in that “it falls into the same no solicitation policy as everything else.” (Tr. 271.) Brown testified that before pick- ing up the union flyer he asked the employee sitting closest to the flyer whether it belonged to them, and the employee shrugged, so Brown picked up the flyer to throw it out. (Tr. 271– 272.) Brown testified that after picking up the union flyer he threw it out in the manager’s office. (Tr. 275–276.) F. The events of June 1, 2022 O’Hara distributed union flyers in the breakroom again on June 1, 2022, before his shift began at 11:30 a.m. and during his lunch break. (Tr. 138.) General Counsel introduced a videotape of the breakroom on June 1, 2022, as General Counsel’s Exhibit 8; references to the videotape time stamp will be indicated in pa- renthesis. (Tr. 146–147.) Before beginning his shift, O’Hara and another Apple employee and organizing committee member placed four union flyers on the breakroom table. (Tr. 139–140 (3:05:39–3:06:28).) About 5 minutes later, senior manager Ryan Radechal entered and left the breakroom, only to return a few minutes later. (Tr. 140–141 (3:10:12–3:10:56, 3:11:23– 3:13:13).) Immediately thereafter, senior manager Jorge Romero entered the breakroom and removed the union flyers O’Hara and his co-worker had placed on the table. (Tr. 141–142 (3:13:31-3:13:49).) Later that day, at about 4:45 p.m. during his lunch break, O’Hara and a coworker placed additional union flyers on the breakroom table. (Tr. 142–143 (7:25:05-7:25:39).) O’Hara then left the breakroom and went to the tables near the vending ma- chines to eat his lunch. (Tr. 143–144.) About 15 minutes later, Romero entered the breakroom, removed the union flyers from the table, and exited after briefly speaking with an employee seated at the breakroom table. (Tr. 144–145 (7:40:19-7:41:05).) After leaving the breakroom with the flyers, Romero walked by the tables where O’Hara was eating lunch, and O’Hara saw him walk into the manager’s office. (Tr. 145–146.) About an hour later, Romero walked by the area where O’Hara was taking his lunch break. (Tr. 147.) O’Hara got Romero’s attention, and asked him to stop removing the union flyers. (Tr. 147.) Romero said that he could not stop removing the flyers, because they were promotional materials. (Tr. 147.) O’Hara stated that the union flyers were not promotional, and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 that employees were permitted to have them in the breakroom. (Tr. 147–148.) When Romero contended again that the flyers were promotional and not permitted, O’Hara pulled up the em- ployee rights page of the National Labor Relations Board’s pub- lic website, and showed Romero a statement that employees were allowed to have union materials in nonwork areas. (Tr. 148.) Romero continued to insist that the union flyers were pro- motional materials, and stated that he would keep removing them. (Tr. 148.) O’Hara then asked Romero what he did with the union flyers after removing them, and Romero responded that he shredded them. (Tr. 148–149.) O’Hara then asked whether the employees could have a bulletin board or a cork board to post union flyers and materials; Romero responded that they could look into it and see whether something could be de- signed.16 (Tr. 148–149. O’Hara testified that after June 1, 2022 he did not distribute union flyers again, because managers kept removing them. (Tr. 149.) Decision and Analysis A. Credibility Resolutions Evaluating certain issues of fact in this case requires an as- sessment of witness credibility. Credibility determinations in- volve consideration of the witness’ testimony in context, includ- ing factors such as witness demeanor, “the weight of the respec- tive evidence, established or admitted facts, inherent probabili- ties, and reasonable inferences drawn from the record as a whole.” Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001), enf’d. 56 Fed.Appx. 516 (D.C. Cir. 2003); see also Hill & Dales General Hospital, 360 NLRB 611, 615 (2014). Corroboration and the relative reliability of conflicting testimony are also significant. See, e.g., Precoat Metals, 341 NLRB 1137, 1150 (2004) (lack of specific recollection, general denials, and comparative vague- ness insufficient to rebut more detailed positive testimony). It is not uncommon in making credibility resolutions to find that some but not all of a particular witness’ testimony is reliable. See, e.g., Farm Fresh Co., Target One, LLC, 361 NLRB 848, 860 (2014). In addition, the Board has developed general evidentiary prin- ciples for evaluating witness testimony and documentary evi- dence. For example, the Board has determined that the testi- mony of an employer Respondent’s current employee which is contrary to the Respondent’s contentions may be considered par- ticularly reliable, in that it is potentially adverse to the em- ployee’s own pecuniary interests. Covanta Bristol, Inc., 356 NRLB 246, 253 (2010); Flexsteel Industries, 316 NLRB 745 (1995), aff’d, 83 F.3d 419 (5th Cir. 1996). It is also well-settled that an administrative law judge may draw an adverse inference from a party’s failure to call a witness who would reasonably be assumed to corroborate that party’s version of events, particu- larly where the witness is the party’s agent. Chipotle Services, LLC, 363 NLRB 336, 336 fn. 1, 349 (2015), enf’d. 849 F.3d 1161 (8th Cir. 2017); Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006). Adverse inferences may also be drawn based upon a party’s failure to introduce into evidence documents 16 Romero did not testify at the hearing. containing information directly bearing on a material issue. See Metro-West Ambulance Service, Inc., 360 NLRB 1029, 1030 fn. 13 (2014). In making credibility resolutions here, I have considered the demeanor of the witnesses, the context of their testimony, cor- roboration via other testimony or documentary evidence or lack thereof, the internal consistency of their accounts, and the wit- nesses’ apparent interests, if any. As a general matter, any cred- ibility resolutions I have made are discussed and incorporated into my analysis herein. I generally credit the testimony of Jordan Vasquez and Ian O’Hara. Both Vasquez and O’Hara provided specific, detailed testimony, and did not speculate regarding circumstances not within their own personal knowledge. See, e.g., (Tr. 101–102). I note that Vasquez in particular made a discernable effort to thoroughly explicate the topics he discussed, even during his cross-examination. See (Tr. 77–79). Vasquez and O’Hara’s tes- timony regarding the physical layout and uses of the non-em- ployee areas of the WTC store was consistent with photographs, videos, and schematics introduced into evidence by both General Counsel and Apple. Their testimony regarding the removal of union flyers from the breakroom table on the dates in question was also confirmed by video created by Apple in the normal course of the WTC store’s operations and, in the case of O’Hara, by video he created himself using his iPhone. In addition, Vasquez’ testimony directly contradicted the tes- timony of Apple’s witnesses regarding his conversation with Stephanie Gladden—which forms the basis for the allegation that Apple unlawfully interrogated employees in violation of Section 8(a)(1)—and with respect to the parameters and enforce- ment of Apple’s Solicitation and Distribution Policy and house- keeping procedures. Thus, as a current employee of Apple, Vasquez’ testimony, may be considered particularly reliable in that it is potentially adverse to his own pecuniary interests. Co- vanta Bristol, Inc., 356 NRLB at 253; Flexsteel Industries, 316 NLRB at 745. The testimony of Apple’s witnesses regarding the store layout and operations was similarly credible. However, I find that their explications of Apple’s housekeeping and cleanliness standards, and their accounts of the application of those standards and of Apple’s Solicitation and Distribution Policy, to be of varying re- liability. I further find that their explanations for their conduct in connection with the removal of union flyers from the break- room table to be implausible or contradicted by other, more pro- bative evidence, in the manner discussed below. B. The Alleged Interrogation The complaint alleges that in or about early May 2021, Apple unlawfully interrogated employees regarding their Union sym- pathies and protected concerted activities, in violation of Section 8(a)(1) of the Act. General Counsel contends in support of this allegation that Stephanie Gladden, who was then a senior man- ager at the WTC store, interrogated Vasquez regarding his sup- port for the Union and protected concerted activities on the bal- cony level sales floor on May 9, 2022. Apple contends that Glad- den did not interrogate Vasquez during their conversation, and APPLE, INC. 9 that her remarks were not coercive. For all of the following rea- sons, the evidence establishes that Gladden coercively interro- gated Vasquez during their conversation on May 9, 2022. For many years, the Board has determined whether an em- ployer has coercively interrogated an employee by evaluating if “under all the circumstances, the interrogation reasonably tends to restrain, coerce, or interfere with the rights granted under the Act.” NCRNC, LLC d/b/a Northeast Center for Rehabilitation, 372 NLRB No. 35, at p. 10 (2022), quoting Rossmore House, 269 NLRB 1176, 1177–1178, aff’d. 760 F. 2d 1006 (1985). In order to determine whether a particular interrogation is coercive in nature, the Board considers the background to the specific in- teraction, the nature of the information sought, the identity of the questioner, the place and method of questioning, and the truth- fulness of the employee’s response. NCRNC, LLC d/b/a North- east Center for Rehabilitation, 372 NLRB No. 35, at p. 10; see also Relco Locomotives, 359 NLRB 1145, fn. 1, 1156 (2013), aff’d. 361 NLRB 911 (2014); Westwood Health Care Center, 330 NLRB 935, 939 (2000). It is well-settled that such factors “are not to be mechanically applied,” but serve as a framework for assessing “the totality of the circumstances” for analyzing the statements’ potentially coercive impact. Westwood Health Care Center, 330 NLRB at 939, quoting Rossmore House, 269 NLRB at 1178, fn. 20, and Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998). As an initial matter, I credit Vasquez’ account of the May 9, 2022, conversation as opposed to Gladden’s. As discussed above, Vasquez provided a specific, detailed account of the events that he addressed during his testimony, and evinced a good-faith effort to create an accurate record. Furthermore, as a current employee of Apple who testified in a manner adverse to his own pecuniary interest by contradicting Apple’s own wit- nesses, Vasquez’ testimony is considered particularly reliable pursuant to the Board caselaw discussed above. Thus, I credit Vasquez’ testimony that after Gladden greeted him she told him that she had heard about his meeting with hu- man resources representative Julissa Rodriguez, and asked how it went. Although Gladden denied asking Vasquez “questions related to his compensation or compensation of his colleagues,” during her testimony, she was not asked and did not testify re- garding whether she and/or Vasquez addressed Vasquez’ meet- ing with Rodriguez, which had taken place on May 3, 2022, only days earlier. (Tr. 289–290.) As a result, Vasquez’ testimony that Gladden questioned him regarding his meeting with Rodriguez is effectively unrebutted. I further credit Vasquez’ testimony that after he described his meeting with Rodriguez, Gladden asked him whether he had spoken to other employees regarding a wage increase, and asked how many employees he had spoken to. According to Vasquez’ uncontradicted testimony, his discus- sions with both senior manager Rachel Goldman and Rodriguez were not directed toward obtaining a wage for himself alone. In- stead, Vasquez was contending that the pay for the WTC store Apple employees was too low, and requesting information re- garding how the employees as a group could obtain an increase in their wage rates. I thus credit Vasquez’ testimony that after asking Vasquez how the meeting with Rodriguez went, Gladden asked Vasquez for information regarding the parameters of the group of employees dissatisfied with their wage rates, whose concerns Vasquez had just presented to Rodriguez. The Board has found that employer questioning regarding employee discus- sions of wages may constitute an unlawful interrogation. See Spectrum Juvenile Justice Services, 368 NLRB No. 102 at p. 1, fn. 1, and at p. 8–10 (2019) (questioning regarding petition sub- mitted by employees contending that pay rates were inadequate, and addressing other terms and conditions of employment, un- lawful); Chipotle Services, 363 NLRB 336, 338, 339–340, 346 (2015) (service manager’s questions regarding which employees were discussing wages and how employees had learned of one anothers’ specific wage rates constituted an unlawful interroga- tion). I further credit Vasquez’ testimony that after Gladden ques- tioned him regarding his meeting with Rodriguez and interac- tions with other employees, she asked Vasquez what he thought about the unionization efforts at Apple. In addition to the general credibility considerations addressed above, Vasquez’ depiction of the manner in which the May 9, 2022, conversation unfolded was the more inherently plausible. Specifically, Vasquez and Gladden both testified that Vasquez stated during their conver- sation that he was concerned that his name had been associated with the union organizing campaign, because he was not in- volved. (Tr. 35, 284–285.) However, I find it unlikely that, as Gladden claimed, Vasquez immediately responded to her initial, innocuous question regarding how his day was going by making such an assertion. (Tr. 284–285.) At the time of their conversa- tion, Vasquez had been a member of the union organizing com- mittee for approximately 4 months, and had spoken to Goldman and Rodriguez regarding how the employees could obtain higher wages and more vacation time. However, the union organizing committee had yet to “go public” with respect to its activities, which did not occur until May 15. Given this context, a scenario where Vasquez spontaneously raised the issue with Gladden to convey his disquiet with being associated with the Union only makes sense if one presumes that Vasquez was attempting to “gaslight” Gladden in some way by preemptively denying in- volvement in the Union campaign. Thus, crediting Gladden’s account requires accepting a contorted set of circumstances and motivation on Vasquez’ part. Vasquez’ contention that Glad- den’s initial questioning regarding his meeting with Rodriguez and the wage issue segued into her question regarding what Vasquez thought of the union campaign is substantially more plausible. Vasquez’ subsequent response that he was concerned that he was being associated with the Union when he was not in fact a part of the organizing efforts is also more believable in that context. Thus, Vasquez provided a more reliable account of their conversation, and I therefore conclude that Gladden asked Vasquez what he thought about the union organizing efforts at Apple. It is well-settled that supervisory questioning regarding employees’ thoughts or sentiments involving a union may con- stitute an unlawful interrogation. See, e.g., Kumho Tires Geor- gia, 370 NLRB No. 32 at p. 5 (2020) (supervisor unlawfully in- terrogated employee by asking him “how he felt about the Un- ion”); Relco Locomotives, 359 NLRB at 1156 (supervisor unlaw- fully interrogated employee by asking him what he thought about the union). In addition, Vasquez’ account of his conversation with Glad- den is corroborated by his statement to O’Hara that Gladden had DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 asked about his thoughts regarding the Union, as well as by Vasquez’ Signal message to the organizing committee stating, “They just had a union feeler convo with me I’ll explain when I get a chance.” (Tr. 36–38, 118–120; GC Exh. 2.) At the hearing, Vasquez was cross-examined regarding the conversation with Gladden and his subsequent message to the organizing commit- tee, as well as the extent of his public identification as a Union supporter, one of the factors considered as part of the totality of the circumstances analysis. (Tr. 72–74, 74–80, 80–81.) As a result, Vasquez’ statements to O’Hara and the committee consti- tute prior consistent statements admissible pursuant to Federal Rule of Evidence 801(d)(1)(B),17 and support Vasquez’ account of his conversation with Gladden. See Pagerly Detective Agency, 273 NLRB 494, fn. 1 (1984) (ALJ erred by excluding employee’s testimony regarding his immediate recounting of president’s request that he provide a list of employees supporting the union). Finally, during her direct examination, Gladden testified that she did question Vasquez about union activity, asking him, “if you’re allowed to do these things, why does it upset you?” to be associated with the Union, given that “This is something that you can talk about and you can engage in.” (Tr. 285.) Vasquez’ ac- count of their conversation did not include these statements. Nonetheless, this question is simply a variation on supervisory queries regarding employee “thoughts” and “feelings” about a union or union representation which the Board has found to be impermissible. Kumho Tires Georgia, 370 NLRB No. 32 at p. 5; Relco Locomotives, 359 NLRB at 1156; see also Dayton Hud- son Corp., 316 NLRB 477, 483 (1995) (manager’s questioning of employee as to “why he wanted the Union, and what signifi- cance it had” unlawful interrogation); Research Management Corp., 302 NLRB 627, 648 (1991) (manager unlawfully interro- gated employee by asking him “why he supported the Union and what good did he feel the Union would do”); Nice-Pak Products, Inc., 248 NLRB 1278, 1286–1287 (1980) (supervisor’s question- ing of employees as to “why [they] thought the employees needed a union” and “why [they] really wanted a union” unlaw- ful interrogation). Apple argues that Gladden’s remarks are comparable to the “offhand and somewhat innocuous” comments at issue in Boz- zuto’s Inc. v. NLRB, which the Second Circuit, contrary to the Board, found did not constitute a coercive interrogation. 927 F.3d 672, 685, 686–687 (2019), denying enforcement of Boz- zutto’s, Inc., 365 NLRB No. 146 (2017). However, the circum- stances of that case are inapposite in this respect. In Bozzuto’s Inc., a fleeting, chance encounter between an employee and a Senior Vice President resulted in a two-sentence interaction, where the Senior Vice President asked, “what’s going on with this Union stuff?” and the employee responded, “I’m not going to talk about it with you.” 927 F.3d at 676. In the instant case, by contrast, Gladden deliberately approached Vasquez, 17 Rule 801(d)(1)(B) provides that statements consistent with a wit- ness’ testimony which are offered “to rebut an express or implied charge that the declarant recently fabricated [them] or acted from a recent im- proper influence or motive in so testifying,” or “to rehabilitate the de- clarant’s credibility as a witness when attacked on another ground,” do not constitute inadmissible hearsay. questioned Vasquez regarding his meeting with Rodriguez and the number of employees he had spoken to regarding wage rates, and then asked Vasquez what he thought about the unionization efforts at Apple. Thus, Gladden’s comments involved more ex- tensive probing, and sought more specific information regarding Vasquez’ protected concerted activities and Union sentiments, than the Senior Vice President’s “offhand” remark at issue in Bozzutto’s Inc. Other factors comprising the totality of the circumstances analysis further support the conclusion that Gladden’s interroga- tion of Vasquez was coercive. As a senior manager, Gladden reported directly to Store Leaders Abdelal and Distasio, and was Vasquez’ direct supervisor on the sales floor during that portion of his shift. See Kumho Tires Georgia, 370 NLRB No. 32 at p. 5 (interrogation coercive where questioner was employee’s “di- rect supervisor”); Spectrum Juvenile Justice Systems, 368 NLRB No. 102 at p. 11 (questioning by employee’s shift supervisor co- ercive). I do credit Gladden’s testimony, which was confirmed by Vasquez, that she approached Vasquez in connection with her general practice of briefly speaking with each employee on the sales floor at the beginning of her shift.18 (Tr. 72–73, 284.) However, Vasquez’ testimony that despite their casual ex- changes he and Gladden did not have a friendship or personal relationship was not contradicted. See, e.g., Bozzuto’s, Inc., 365 NLRB No. 146 at p. 2, fn. 6, quoting Management Consulting, Inc., 349 NLRB 249, 250 fn. 6 (2007) (supervisory remarks po- tentially coercive regardless of supervisor’s “friendship” with employee and “regardless of whether the remark was well in- tended”). Furthermore, Gladden’s regular interactions with sales floor employees to identify herself and initiate contact at the be- ginning of her shift do not obviate the coercive nature of ques- tioning regarding Union and protected concerted activity. There was no collective bargaining relationship or certification of a un- ion as collective bargaining representative in effect for the em- ployees at the WTC store at the time. Indeed, as of May 9, 2022, the Union organizing committee had yet to make its campaign public, and while Vasquez had spoken to Goldman and Rodri- guez regarding the employees’ desire for higher wages and more vacation time, at the time of his conversation with Gladden he was not an open union supporter. See Bozzuto’s, Inc., 365 NLRB No. 146 at p. 2–3 (employee’s “leading role in the organizing campaign” irrelevant where evidence demonstrated that em- ployee was endeavoring to “keep a low profile when engaged in union activity” “at the time of the interrogation”) (emphasis in original). Finally, the evidence establishes that Vasquez equivocated in response to Gladden’s questions, by stating that he had not kept track of the number of employees with whom he had discussed the wage rate issue, and by denying any association or involve- ment with the Union. Vasquez testified that he did so in order to prevent the WTC store managers from learning that the 18 I note as well that the conversation between Gladden and Vasquez took place on the sales floor, and Vasquez was not called into a manage- ment office or otherwise subjected to circumstances creating “an atmos- phere of unnatural formality.” Westwood Health Care Center, 330 NLRB at 939, quoting Bourne v. NLRB, 332 F.2d 47, 48 (2nd Cir. 1964). This factor therefore militates against a finding that Gladden’s question- ing was coercive. APPLE, INC. 11 employees were attempting to form a Union. It is well-settled that an employee’s evasive or untruthful response to supervisory questioning supports a determination that the questioning was coercive in nature. See Kumho Tires Georgia, 370 NLRB No. 32 at p. 5 (employee’s “reluctance to answer” supervisor’s ques- tions evinces their coercive nature); Chipotle Services, 363 NLRB at 346; Relco Locomotives, 359 NLRB at 1156 (em- ployee’s untruthful answer to supervisor’s query regarding his union sentiments “because he feared for his job” indicative of coercion). In this respect, I note that while there is no historical backdrop of “employer hostility or discrimination” at issue here, a factor which would militate against a conclusion that Glad- den’s questioning was coercive, there was no labor union recog- nized or certified as collective bargaining representative. Fur- thermore, Vasquez and the rest of the organizing committee were sufficiently concerned with the ramifications if management be- came aware of the Union organizing campaign that Vasquez re- sponded to Gladden’s questioning untruthfully. Westwood Health Care Center, 330 NLRB at 939. Such evidence contra- dicts Apple’s argument that Gladden’s reassurance to Vasquez that “Apple would always do the right thing at the end,” amelio- rated the coercive effect of her questioning, as does Vasquez’ immediate reporting of the incident to O’Hara and to the organ- izing committee as a “union feeler convo.” (Tr. 35, 36–38; GC Exh. 2; see Posthearing Br. at 26–27.) For all of the foregoing reasons, the evidence establishes that Gladden coercively interrogated Vasquez on May 9, 2022, in vi- olation of Section 8(a)(1) of the Act. C. Alleged Violations Based Upon the Removal of Union flyers from the Breakroom Table 1. The complaint’s allegations and General Counsel’s Posthearing Motion to Amend The complaint alleges two distinct violations of Section 8(a)(1) of the Act based upon Apple’s removal of union flyers from the table in its employee breakroom on May 15, 2022, May 27, 2022, and June 1, 2022. First, the complaint alleges that Ap- ple’s removal of the union flyers constituted a disparate enforce- ment of its Solicitation and Distribution Policy, in that Apple permitted solicitation and distribution in the breakroom with re- spect to non-Union materials. The Complaint further alleges that Apple unlawfully confiscated union flyers in a nonworking area of the WTC store. In her posthearing brief, General Counsel moves to amend the complaint to include an allegation that at all material times Apple maintained its Solicitation and Distribution Policy in a manner which restricted its employees’ Section 7 activities, in violation of Section 8(a)(1) of the Act. (GC Posthearing Br. at 3, 35–37.) Section 102.17 of the Board’s Rules and Regulations provides that amendments to a complaint may be made “upon such terms as may be deemed just” via a motion to an Administrative Law 19 The unfair labor practice charge filed by the Union on May 18, 2022, alleged that Apple “has and continues to maintain an overly broad no-solicitation policy intended to discourage employees from engaging in union activity.” GC Exh. 1(a). Judge at the hearing and until the case is transferred to the Board. In order to determine whether an ALJ has properly exercised their discretion with respect to a motion to amend the complaint, the Board considers “(1) whether there was surprise or lack of notice, (2) whether there was a valid excuse for the delay in mov- ing to amend, and (3) whether the matter was fully litigated.” See, e.g., Rogan Bros. Sanitation, Inc., 362 NLRB 547, 549 fn. 8 (2015), enf’d. 651 Fed. Appx. 34 (2nd Cir. 2016), citing Stage- hands Referral Service, LLC, 347 NLRB 1167, 1171-1172 (2006); see also CAB Associates, 340 NLRB 1391, 1397-1398 (2003). Because Apple was provided with no notice regarding the amendment now advanced by General Counsel, and General Counsel has provided no explanation for the delay in moving to amend, General Counsel’s motion is denied. Apple was not provided with any notice that General Counsel would be alleging as a discrete violation of Section 8(a)(1) that it maintained its Solicitation and Distribution Policy in a manner which restricted the Section 7 rights of its employees prior to the submission of the parties’ posthearing briefs. As discussed above, as of the issuance of the December 16, 2022 Amendment to the complaint, Apple was apprised that General Counsel was contending that its conduct with respect to the distribution of un- ion flyers at the WTC store violated Section 8(a)(1) in two dis- tinct ways: (i) that it selectively and disparately enforced its So- licitation and Distribution Policy by prohibiting the placement of union flyers on the store’s breakroom table, while permitting so- licitation and distribution with respect to nonunion materials; and (ii) that it unlawfully confiscated union flyers in a non-work area. These were the extant allegations with respect to Apple’s conduct involving the union flyers throughout the entirety of the hearing, during the presentation of both the General Counsel’s case and Apple’s. General Counsel amended the complaint in this matter twice—once on December 16, 2022 and again on the record at the hearing. But although the Solicitation and Distri- bution Policy has been at issue since the unfair labor practice charge in this case was filed on May 18, 2022,19 General Counsel never, prior to submitting a posthearing brief, sought to include in the complaint an allegation that the Policy was maintained in a manner that restricted employees’ Section 7 rights. See Oncor Electric Delivery Co., 364 NLRB 677, 684-685 (2016), re- manded in part on other grounds 887 F.3d 488 (D.C. Cir. 2018) (motion to amend made on the final day of hearing denied where General Counsel was aware of the facts underlying the allegation “prior to the beginning of the trial”). The timing of General Counsel’s motion to amend is even more mystifying given the parties’ opening statements in the case. During her opening statement on the 1st day of the hearing, General Counsel explicitly argued that the Board’s decision in AT&T Mobility, LLC—which eliminated the remedy of revision or rescission of an otherwise lawful policy that was unlawfully “applied to restrict” employee Section 7 activity—should be overruled in that respect.20 370 NLRB No. 121 at p. 7 (2021). 20 “In addition, General Counsel will be requesting the administrative law judge here to overturn AT&T Mobility. . . And order a remedy that would include Respondent rescinding its solicitation and distribution policy, and upon restoration of this policy, disclaim that Respondent will DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 As the Board discusses at length in AT&T Mobility, LLC, the re- vision or rescission remedy was premised upon the theory that the application of a lawful rule to restrict Section 7 activity en- genders a conclusion that the rule itself was unlawful to maintain – a theory that the Board in AT&T Mobility, LLC rejected. 370 NLRB No. 121 at p. 1–2, 5–7. Yet at no time during the hearing did General Counsel move to amend the complaint to include an allegation that Apple maintained its Solicitation and Distribution Policy in a manner which restricted its employees’ Section 7 ac- tivity. Apple specifically addressed the rescission and revision remedy and the import of AT&T Mobility, LLC in its posthearing brief, presumably based upon General Counsel’s remarks in her opening statement. (R. Posthearing Br. at 45–47.) However, Apple was never on notice that an allegation that it had main- tained its Solicitation and Distribution Policy in a manner which restricted employees’ Section 7 rights was at issue. With regard to the second component of the analysis, General Counsel has provided no “valid excuse” for the delay in moving to amend the complaint to include an allegation that Apple un- lawfully maintained its Solicitation and Distribution Policy in a manner which restricted employee Section 7 activity. General Counsel provides no explanation whatsoever in her posthearing brief for why such a motion to amend the complaint was not made before the record closed, particularly when one motion to amend was made prior to the hearing’s opening and another was made on the record. While General Counsel claims that the pro- posed amendment is based upon the testimony of Apple’s wit- nesses regarding the enforcement of Solicitation and Distribu- tion Policy, she points to no new information revealed by such testimony which would excuse the failure to move to amend the complaint before the hearing concluded. General Counsel’s fail- ure to provide any explanation or mitigating circumstances mil- itates against granting a motion to amend raised in a posthearing brief. See Graphic Communications Conference/Teamsters Lo- cal 137(C), 359 NLRB 265, 266 (2012) (motion to amend raised in posthearing brief denied where General Counsel “offers no explanation as to why he did not raise the motion before the rec- ord closed”); Oncor Electric Delivery Co., 364 NLRB at 685 (motion to amend made on the final day of trial denied where “General Counsel offered no reason for why the motion to amend was not made earlier”). General Counsel argues that the motion to amend should be granted because it merely articulates a “new theory” for a viola- tion of Section 8(a)(1) based upon the record evidence adduced at trial, citing Hawaiian Dredging Construction Co. and Parexel International, LLC. (GC Posthearing Br. at 35–36); Hawaiian Dredging Construction Co., 362 NLRB 81 (2015), remanded on other grounds 857 F.3d 877 (D.C. Cir. 2017), vacated 368 NLRB No. 7 (2019); Parexel International, LLC, 356 NLRB 516 (2011). However, both of those cases involved violations of Sec- tion 8(a)(3) grounded in basic allegations of retaliation for union and/or protected concerted activity. See Hawaiian Dredging Construction Co., 362 NLRB at 82, fn. 6 (Wright Line theory encompassed by allegation that Respondent discharged employ- ees “because [they] were members of the Union” in violation of modify the policy against employees for engaging in activities protected by Section 7 of the Act.” Tr. 15. Section 8(a)(3)); Parexel International, LLC, 356 NLRB at 517 (“preemptive strike theory” sufficiently related to complaint al- legations that employee “engaged in concerted activities with other employees. . .by discussing wages” and was subsequently discharged by Respondent “to discourage employees from en- gaging in these or other concerted activities”). Here, by contrast, the violation raised by the motion to amend—the bof a Solicita- tion and Distribution Policy in a manner which restricted em- ployee Section 7 activity—is distinct from the alleged confisca- tion of union flyers and disparate enforcement of the Policy de- scribed in the amended complaint. Thus, the violation raised by the proposed amendment is not a theory amenable to being en- compassed by or subsumed in the Amended–’s extant allega- tions. Furthermore, the standard applied by the Board in cases such as Parexel International, LLC to find and remedy a viola- tion not explicitly alleged in a complaint is different from the analysis articulated in Stagehands Referral Service, LLC and similar cases for determining whether an ALJ abused their dis- cretion in granting a motion to amend. See CAB Associates, 340 NLRB at 1398 (Board may find and remedy a violation not spe- cifically alleged “if the issue is closely connected to the subject matter of the complaint and has been fully litigated”); Parexel International, LLC, 356 NLRB at 517 (same). For all of the foregoing reasons, Apple was not provided with notice of the proposed amendment prior to the submission of posthearing briefs, and General Counsel has not articulated any explanation for the failure to move to amend the complaint at an earlier time. As a result, General Counsel’s motion to amend the complaint to include an allegation that Apple maintained its So- licitation and Distribution Policy in a manner that restricted em- ployee Section 7 activity is denied. 2. The Legal Framework It is well-established that employees are permitted to engage in solicitation and to distribute union literature during non-work- ing time and in nonworking areas, absent a showing of “special circumstances” necessary for the employer to “maintain produc- tion or discipline.” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797, 801, 805 (1945); Shamrock Foods Co., 366 NLRB No. 117 at p. 2, 23 (2018). The Board has stated that, “Interference with employee circulation of protected material in nonworking areas during off-duty periods is presumptively a violation of the Act unless the employer can affirmatively demonstrate the re- striction is necessary to protect its proper interest.” Waste Man- agement of Arizona, Inc., 345 NLRB 1339 fn. 2, 1346 (2005), quoting Champion International Corp., 303 NLRB 102, 105 (1991). In order to overcome the presumption that a rule restrict- ing such employee activities is unlawful, an employer “must show a compelling and legitimate business reason necessitating” the restrictions it has imposed. Waste Management of Arizona, Inc., 345 NLRB at 1346, citing Midland Transportation, 304 NLRB 4, 5 (1991); see also Mercedes-Benz U.S. International, Inc. (MBUSI), 361 NLRB 1018, 1028 (2014) (employer bears the burden of establishing “special circumstances warranting an exception to the rule that employees not on working time have APPLE, INC. 13 the right to distribute union literature to other such employees in a mixed use area”).21 Consonant with the foregoing, the confiscation of union liter- ature from non-work areas generally constitutes a violation of Section 8(a)(1) of the Act absent such a showing of special cir- cumstances. See, Valley Health System, LLC d/b/a Desert Springs Hospital Medical Center, 369 NLRB No. 16 at p. 2, 16 (2020); Shamrock Foods Co., 366 NLRB No. 117 at p. 2, 23 (2018), enf’d. 775 Fed.Appx. 752 (D.C. Cir. 2019). Indeed, the Board has held that it is unlawful for an employer to confiscate union literature even if the employer could under the circum- stances legally prohibit its distribution. Shamrock Foods Co., 366 NLRB No. 117 at p. 23, citing Manorcare Health Services- Easton, 356 NLRB 202, 204–205 (2010). Finally, it is well-settled that the disparate or discriminatory enforcement of a facially permissible no-solicitation or no-dis- tribution policy, in order to prohibit the dissemination of union literature while the distribution of other materials is permitted, also violates Section 8(a)(1) of the Act. See, e.g., Novelis Corp., 364 NLRB 1452, 1453, fn. 10, 1489; Intertape Polymer Corp., 360 NLRB 957, 958 (2014); Ozburn-Hessey Logistics, LLC, 357 NLRB 1632, fn. 5, 1638 (2011). 3. The Removal of union flyers from the Breakroom Table The evidence establishes that Apple managers repeatedly re- moved Union literature from the table in the employee break- room on the ground floor of the WTC store. Specifically, wit- ness testimony and Apple’s continuous video of the breakroom establishes that Store Leader Waleed Abdelal and manager Matt Moya removed union flyers on May 15, 2022. (Tr. 53–55, 58, 127; GC Exh. 4 at 1:50:27-1:50:35, 1:51:08-1:51:24, 5:11:15- 5:11:33.) Such evidence further demonstrates that Union litera- ture was removed from the breakroom table on June 1, 2022, by senior manager Jorge Romero. (Tr. 144–145; GC Exh. 8 at 7:40:19-7:41:05.) Finally, the evidence establishes that on May 27, 2022, Senior Manager Yanell Brown removed flyers from the breakroom table, as depicted in a video recording made by O’Hara. (Tr. 135–138; GC Exh. 7.) There is no general conten- tion that the employee breakroom is a work area, that Vasquez and O’Hara were on work time when they placed union flyers on the breakroom table, or that any other employees in the break- room were on work time. As a result, Apple is required to establish special circum- stances that justify its removal or confiscation of union flyers 21 “Mixed-use areas” are areas inside a facility used for both work and non-work related purposes. See, e.g., Novelis Corp., 364 NLRB 1452, 1453, fn. 10 (2016); DHL Express, Inc., 357 NLRB 1742 fn. 1 (2011). 22 The Board noted in North American Refractories Co. that no excep- tions were filed to the ALJ’s recommended dismissal of the allegation in that case that the respondent employer enforced its housekeeping and distribution rules in a disparate or discriminatory manner. 331 NLRB at 1640, fn. 1. As a result, that issue was never considered by the Board, and based solely upon the Board’s decision in that case the ALJ’s find- ings on the issue would lack precedential value. However, in Ozburn- Hessey Logistics, LLC, the Board in its decision specifically referred to North American Refractories Co. as “holding that an employer may law- fully maintain and enforce housekeeping rules that result in the confis- cation from nonworking areas of prounion literature left behind follow- ing break periods.” 366 NLRB No. 177 at p. 11 (2018), enf. granted and from the breakroom table. Apple advances two general ration- ales to support its removal of union literature from the break- room table—its Solicitation and Distribution Policy and its housekeeping or cleanliness standards. For the following rea- sons, I find that the evidence does not substantiate either of these contentions. Apple begins by arguing that its breakroom table is analogous to a bulletin board, so that its uses could lawfully be restricted to prohibit all nonbusiness-related matters, including the posting of union materials. (R. Posthearing Brief at 32–33.) This conten- tion is not persuasive. While a bulletin board is generally estab- lished and maintained by an employer for the express purpose of communication with employees, a breakroom table is not. Thus, caselaw cited by Apple which permits an employer to restrict the use of a bulletin board is irrelevant. See, e.g., Honeywell, Inc., 262 NLRB 1402 (1982), enf’d, 722 F.2d 405 (8th Cir. 1983). In support of this argument Apple discusses Shamrock Foods Co., where the ALJ, affirmed by the Board, found that the respondent employer could lawfully remove union literature from an infor- mation counter the employer maintained in its employee break- room. 366 NLRB No. 117 at p. 1, fn. 3, 23–24. However, in analogizing the information counter in that case to a bulletin board, the ALJ found that the information counter was “used by the Company for displaying or distributing health and fitness in- formation.” Shamrock Foods Co., 366 NLRB No. 117 at p. 23– 24. The breakroom table at issue here, by contrast, was not used by Apple to provide company-generated information to employ- ees; indeed, immediately outside the breakroom was a bulletin board maintained by Apple specifically for that purpose. There is no dispute that the breakroom table was used by the employees for non-business activities, such as eating meals, playing games, and casual conversation, during employees’ non-work time such as lunch and breaks. Thus, Apple’s argument that the breakroom table constituted some sort of “Apple system (electronic or phys- ical)” which could not be used “to distribute materials or solicit employees” pursuant to its Solicitation and Distribution Policy is not compelling. (Jt. Exh. 1; R. Posthearing Brief at 32–33.) Apple next argues that its housekeeping and cleanliness stand- ards applicable at the WTC store permitted the removal of union flyers from the breakroom table, pursuant to Page Avjet and North American Refractories Co.22 Page Avjet, 278 NLRB 444, 450 (1986) and North American Refractories Co., 331 NLRB 1640, fn. 1, 1641, 1642–1643 (2000); see also Mitchellace, Inc., denied in part on other grounds 803 Fed.Appx.876 (6th Cir. 2000). As a result, North American Refractories Co. will be addressed herein. In Enloe Medical Center, 345 NLRB 874, 881 (2005), also cited by Apple, the ALJ, citing Page Avjet, Inc. and North American Refractories Co., stated that “Employers may prohibit the leaving of materials in non- work areas.” However, the Board in Enloe Medical Center stated that it was “unnecessary to pass on the judge’s finding that employers may pro- hibit the leaving of materials, including union literature, in nonwork ar- eas” given its conclusion that the employer violated Sec. 8(a)(1) by ex- plicitly prohibiting employees from placing union literature in the break- room. 345 NLRB at 877-878, fn. 15. Thus, Enloe Medical Center is not precedential authority for the proposition that, as the Board described the ALJ’s finding, “employers may prohibit the leaving of materials in non- work areas.” 345 NLRB at 877. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 321 NLRB 191, 198–199 (1996).23 However, I find that these cases are inapposite given the record evidence here. First of all, the evidence does not establish that prior to May 15, 2022, Apple maintained a coherent housekeeping or cleanliness policy with respect to the employee breakroom table at the WTC store. No such written policy was introduced into evidence by Apple. See North American Refractories Co., 331 NLRB at 1641 (“Com- pany policy concerning housekeeping. . . contained in the em- ployee handbook” and “addressed frequently by management of- ficials at employee meetings”). Furthermore, the general con- tentions made by Apple’s managers regarding its purported housekeeping and cleanliness policy were belied by video of the breakroom introduced into evidence. General Counsel and Apple both introduced into evidence continuous video created by Apple of the employee breakroom at the WTC store during the store’s operating hours. General Counsel introduced video taken on May 15, 2022 (GC Exh. 4), and on June 1, 2022 (GC Exh. 8), while Apple introduced video taken on May 29, 2022 (R. Exh. 24), May 30, 2022 (R. Exh. 29), and June 2, 2022 (R. Exh. 30). (See Tr. 344–346, 375–376.) As an evidentiary matter, the May 15, 2022 video is substantially more probative with respect to the application of Apple’s Solic- itation and Distribution Policy, and its housekeeping and clean- liness standards, at the time its managers removed the Union lit- erature from the employee breakroom table. As discussed above, May 15, 2022 was the day that the Union “went public” with respect to the organizing campaign, and the 1st day that the em- ployees placed flyers on the breakroom table. Furthermore, the initial unfair labor practice charge in the instant case, alleging that Apple maintained an overly broad no-solicitation policy, was filed on May 18, 2022. (GC Exh. 1(a-b).) Therefore, the May 29 and 30, 2022, and June 1 and 2, 2022 videos were all recorded after at least two incidents where Vasquez and O’Hara placed union literature on the breakroom table which was re- moved by Apple managers, and after the initial charge in this case was filed.24 Given these considerations, it is important to note that the May 15, 2022 breakroom video in evidence as General Counsel’s Ex- hibit 4 corroborates the testimony of Vasquez and O’Hara, and not Apple’s witnesses, with respect to Apple’s purported house- keeping and cleanliness policy or standards. Specifically, the May 15, 2022 video shows at its very inception approximately 23 The ALJ in Mitchellace, Inc. cited to Steelcase, Inc. for the propo- sition that “The mere fact of a supervisor removing union literature from a break area does not constitute a violation of the Act – or rather, does not where the supervisor routinely helps keep the break area clean.” Mitchellace, Inc., 321 NLRB at 198, citing Steelcase, Inc., 316 NLRB 1140, 1143–1144 (1995). However, the Board in Steelcase, Inc. stated that it had affirmed the ALJ’s holding in that case that a supervisor’s removal of union newsletters from tables in the employee breakroom was not unlawful “In the absence of exceptions.” 316 NLRB at 1140, fn. 2. As a result, Steelcase, Inc. lacks precedential import in this respect. 24 General Counsel introduced into evidence photographs taken by Vasquez of items on the breakroom table in the Apple store in Texas where he is currently employed. Tr. 66–68; GC Exh. 5. I do not find that these photographs are probative with respect to the application of Apple’s Solicitation and Distribution Policy and housekeeping and cleanliness standards at the WTC store. Apple also elicited testimony regarding the application of its Solicitation and Distribution Policy and three bottles and several other items on the breakroom table. GC Exh. 4 (0:00:00-0:00:10). While several managers, including Abdelal and Radechal, enter and exit the breakroom almost im- mediately after the recording begins, none of them remove these items from the breakroom table.25 See Tr. 51; GC Exh. 4 (0:0:10-0:0:15, 0:49:55-0:50:00 (Abdelal), 0:01:40-0:04:10, 0:49:33-0:49:42 (Radechal)). Some of the items are removed by a member of the cleaning contractor staff about 45 minutes after the video begins at 7 a.m., but others are not removed by the cleaning staff until over six hours later.26 (GC Exh. 4 (0:47:58- 0:49:05, 7:15:04-7:15-54).) Furthermore, about two hours after the video begins a basket of fruit is placed on the breakroom ta- ble, and is not removed until seven hours later, well after it is completely empty. (See GC Exh. 4 (1:43:54, 8:48:31-8:48:42).) The May 15, 2022 video does not show any of the several man- agers who enter and exit the breakroom cleaning, tidying, or or- ganizing the breakroom in any way. (See, e.g., GC Exh. 4 (38:28, 5:07:45-5:07:58).) Thus, the most probative video evidence conclusively contra- dicts the testimony of Apple’s witnesses regarding the purport- edly critical nature of cleanliness and organization in the em- ployee breakroom, and regarding the managers’ role in maintain- ing Apple’s vaunted standards of housekeeping. For example, Jennison testified that Apple managers were “popping and out” of the breakroom “throughout the day” “whenever you have a spare minute” to check on its “condition,” and ensure that it was “really organized and clean.” (Tr. 229, 231.) Abdelal testified that the managers’ cleaning and organization of the breakroom was “part of our values our DNA,” and “like breathing. We just literally do it all the time…you would just go there and you would clean up as you saw things.” (Tr. 302, 307.) Abdelal fur- ther stated, “I intentionally make sure that the team always sees me picking up trash” in “the back of the house.” (Tr. 302–303.) Brown claimed during his testimony that Apple managers “want to make sure like we’re cleaning up really proactively.” (Tr. 272.) Jennison also testified that at the end of the day managers “reset the break room back to clean,” so that the “next morning the place looks like it did when it opened for the very first time.” (Tr. 231–232.) Abdelal echoed this testimony, stating that it “would be incredibly unlikely in our space to find anything left behind, especially overnight” given the housekeeping and clean- liness standards in effect at the WTC store. (Tr. 306–307.) The housekeeping and cleanliness standards at other stores, which I also find irrelevant to the events at the WTC store. Tr. 299–304, 352–353. Fi- nally, Apple adduced testimony regarding the application of its Solicita- tion and Distribution Policy in areas of the WTC store open to customers, and with respect to customers waiting on the sidewalk to be admitted to the store. Tr. 255–228, 304–306, 352–357. I find that such evidence is not relevant with respect to the enforcement of the Policy in areas of the store accessible only to employees. 25 Abdelal and Radechal have been identified in these portions of GC Exh. 4 based upon identifications made by Vasquez while viewing this Exhibit during his testimony. Tr. 51, 53–54; GC Exh. 4 (0:49:43- 0:49:55, 1:47:16, 1:51:08-1:51:24). The parties stipulated that Vasquez accurately identified the various managers depicted in GC Exh. 4. Tr. 111–112. 26 As a result, some of these items are still on the breakroom table when Abdelal first removes the union flyers. See GC Exh. 4 (1:51:07- 1:51:23). APPLE, INC. 15 video evidence from May 15, 2022 flatly belies all of this testi- mony. Instead, the video corroborates Vasquez and O’Hara’s testimony regarding items left on the breakroom table through- out one of their shifts, and from 1 day to the next. Even the videos taken after the Union began to openly cam- paign and the instant charge was filed contradict Apple’s wit- nesses with respect to the application of its purported housekeep- ing and cleanliness policy. In the four videos taken after the charge in the instant case was filed, three of which Apple intro- duced into evidence, over approximately 38 hours of video Ap- ple points to only a single instance where a manager removes items from the breakroom table.27 (R. Exh. 24 (5:49:25); Tr. 174-177); see generally (GC Exh. 8; R. Exh. 24, 29, 30). As in the May 15, 2022 video, video from June 1, 2022, does not show any of the Apple managers who enter the breakroom cleaning or organizing. ()See GC Exh. 8 (3:10:12-3:10:56, 3:11:23- 3:13:13). Thus, the video evidence contradicts the testimony of Apple’s managers to the effect that managers cleaned and orga- nized the breakroom and the breakroom table on any sort of a consistent basis pursuant to a housekeeping or cleanliness stand- ard then in effect. Furthermore, the videos conclusively demon- strate that when Apple managers removed union flyers from the breakroom table, they did not do so as part of some overall effort to clean or organize the breakroom. Instead, they entered the breakroom, removed the union flyers from the table, and left without performing any other cleaning, organization, or overall “sweep.”28 Other specific circumstances at issue in the cases discussed above involving the legitimate removal of union literature pur- suant to an employer’s housekeeping policy or standard of clean- liness also render them inapposite. For example, in North Amer- ican Refractories Co. and Page Avjet, Inc., the record established that leaflets were left not only on breakroom tables after break times concluded, but “remained on the counters, microwaves, re- frigerator and floor” engendering “employee Complaints due to the disarray.” North American Refractories Co., 331 NLRB at 1641, 1643; Page Avjet, Inc., 278 NLRB at 450 (union literature “scattered on the floor” of the breakroom as well as “left on the tables”). Here, by contrast, the video evidence confirms Vasquez and O’Hara’s testimony that they placed four Union flyers neatly on the breakroom table only. Nor is there any evi- dence that other Apple employees complained about the Union flyers, or about some state of disorganization that the flyers cre- ated. Furthermore, there is no evidence here that Apple 27 The other evidence referred to by Apple in its Posthearing Brief consists of employees cleaning up after themselves after using the break- room table, which is consistent with Vasquez and O’Hara’s testimony, or periods where the breakroom table is clean. R. Posthearing Brief at 43–44; Tr. 68, 150–151. 28 Such a finding is consistent with Abdelal’s testimony regarding his own removal of the Union flyers on May 15, 2022. Although Abdelal testified that he told the other managers that they should “clean [Union flyers] up like anything else” if they were “abandoned,” he stated that on May 15, 2022, he specifically “went in and took them and threw them out,” as opposed to removing the union flyers as part of an overall effort to clean and organize the breakroom. Tr. 310–312. 29 Apple’s contention that leaving newspapers on the breakroom table while removing union flyers does not constitute disparate enforcement specifically informed employees that they were permitted to dis- tribute union flyers in nonwork areas during breaks, or that the employees did so. See North American Refractories Co., 331 NLRB at 1641, 1642–1643; see also Page Avjet, Inc., 278 NLRB at 450. In addition, in Page Avjet, Inc. the alleged violation was based upon a supervisor’s admission that “on the one occasion he did pick up the union literature and place it on a table outside the break area.” 278 NLRB at 450. Here, by contrast, Apple managers repeatedly returned to the breakroom throughout the day and specifically removed union flyers on multiple occasions, discarding and/or shredding them. Nor did Apple managers per- mit the union flyers to remain on the table for an entire shift, but removed them as soon as they were discovered. See Mitchellace, Inc., 321 NLRB at 199 (supervisor left union notices on break area tables “for more than 10 hours, including through two break periods and the lunch period”). As discussed herein, after re- moving Union flyers, Apple managers did not place them in an- other area where employees could possibly encounter them, but threw them away or shredded them. Thus, the evidence estab- lishes that the managers at the WTC store “specifically targeted union literature for removal” in an unlawful manner. Ozburn- Hessey Logistics, LLC, 366 NLRB No. 177 at p. 11. For all of the foregoing reasons, the evidence establishes that Apple’s Solicitation and Distribution Policy did not permit Ap- ple to lawfully remove union flyers from the employee break- room table, nor did its housekeeping and cleanliness standards. Thus, the evidence does not substantiate any “special circum- stances” justifying Apple’s removal of union flyers from the em- ployee breakroom table. As a result, I find that the confiscation of union flyers from the employee breakroom on May 15, 2022, May 27, 2022, and June 1, 2022, violated Section 8(a)(1) of the Act. The evidence further establishes that Apple enforced its So- licitation and Distribution Policy and its housekeeping and cleanliness standards in a discriminatory manner to prohibit the distribution of the union flyers. I credit Vasquez and O’Hara’s testimony that they had seen coupons for Shake Shack and Burger King, as well as newspapers,29 in the breakroom, and that such materials had remained on the breakroom table for an entire shift and were sometimes present at the beginning of their shift the following day. (Tr. 64–65, 92–93, 94–96, 149–150, 165– 166, 166–167.) Apple argues in its posthearing brief that Vasquez and O’Hara only described approximately nine inci- dents where coupons or newspapers were left on the breakroom of its Solicitation and Distribution Policy pursuant to St. Luke’s Memo- rial Hospital, 342 NLRB 1040 (2004), is not persuasive. R. Posthearing Brief at 39–40. In St. Luke’s Memorial Hospital, the Board found that local newspapers provided by the respondent employer in a cafeteria which was “open to the general public” “for the convenience of the caf- eteria patrons” did not constitute “sufficient evidence of discrimination” with respect to respondent’s enforcement of its No-Solicitation/No-Dis- tribution Policy to prohibit the distribution of union literature and deny access to union representatives. 342 NLRB at 1041–1042, 1045. Here, the employee breakroom was not open to the public, and there is no evi- dence that the newspapers in question were provided by Apple for the convenience of employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 table at the WTC store. (R. Posthearing Brief at 37–38.) How- ever, when arguing that its Solicitation and Distribution Policy was consistently applied and enforced, Apple’s witnesses only identified four to five specific incidents where coupons and menus from restaurants were removed from the breakroom table at the WTC store. (R. Posthearing Brief at 42–43.) Jennison and Abdelal testified without contradiction regarding two specific in- cidents where they informed employees that they were not per- mitted to leave flyers in the breakroom advertising their own per- formance and a going-away party.30 (Tr. 234–235, 307–308.) However, I am cognizant that these witnesses were not credible when recounting their activities in connection with Apple’s pur- ported housekeeping and cleanliness policy. Thus, on balance, the evidence establishes that the Solicitation and Distribution Policy was not consistently applied with respect to the employee breakroom at the WTC store. The unprecedented manner in which Apple’s managers effec- tuated the Solicitation and Distribution Policy in removing the Union flyers also indicates that this did not constitute an even- handed, non-discriminatory application of the Policy. Abdelal testified that after the other WTC store managers informed him about the Union flyers on May 15, 2022, he removed them pur- suant to the Solicitation and Distribution Policy and housekeep- ing standards, instructing the managers that “abandoned” Union flyers should be cleaned up “like anything else.” (Tr. 310–312.) However, nothing in the May 15, 2022 breakroom video, or any of the other record evidence, indicates that Abdelal took any measures to determine whether the union flyers were “aban- doned.” Abdelal simply entered the breakroom, took the flyers, and left. (GC Exh. 4 (1:51:07-1:51:23).) Nor does any evidence indicate that Moya, Brown, or Romero made any attempt to de- termine whether the Union flyers they removed from the break- room table on May 15, 2022, May 27, 2022, or June 1, 2022, were “abandoned.”31 Instead, managers entered a breakroom containing multiple employees engaged in non-work activities and removed union flyers from around those employees. In ad- dition, the breakroom videos establish that, as Jennison testified, the breakroom was constantly busy with employees on non-work time eating, conversing, reading, and playing games. As Jen- nison testified, “the break room it’s busy all hours, 6:30 in the morning, 10:30 at night and so, you know, it’s just kind of this ongoing, just kind of never ends.” (Tr. 231.) Thus, while the store was open there was no set conclusion to break periods, such that an empty breakroom would permit managers to determine whether or not materials which remained there were “aban- doned.” As a result, the managers’ removal of union flyers be- fore the day ended inevitably prevented other employees from 30 Distasio’s testimony in this regard, discussed by Apple in its Posthearing Brief, involved discussions on the sales floor as opposed to a non-customer area, at stores other than the WTC Store. Tr. 352–353. 31 Brown claimed during his testimony that he did not realize on May 27, 2022, that the items he removed from the breakroom table were union flyers, testimony that I do not credit given the fact that the Union’s cam- paign had “gone public” 12 days earlier and Abdelal’s testimony regard- ing the degree of consternation that the union flyers had caused among the WTC store’s managers. Tr. 271; see Tr. 310, 311, 331–334. Brown further contended that he spoke to an employee seated at the breakroom table to determine whether the union flyer was the employee’s before viewing them. Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177 at p. 3, 10–11. In addition, the breakroom videos establish that Moya photo- graphed the union flyers on May 15, 2022, an action that Vasquez testified he had never witnessed previously. Abdelal’s testimony that photographing the breakroom was not unusual “to celebrate. . .someone did a really great job,” “let us know some- thing was in the breakroom," or draw attention to “when stand- ards have been unacceptable” is not corroborated and simply in- credible. (Tr. 326, 341.) Given the lack of evidence to establish that photographing items on the breakroom table constituted a routine practice, I find Moya’s photographing of the union flyers constitutes a distinct change in the manner in which Apple’s So- licitation and Distribution Policy was applied or enforced, spe- cific to materials involving the Union. The evidence further es- tablishes that the unprecedented shredding of union flyers re- moved from the breakroom table constitutes an additional depar- ture from Apple’s typical practices with respect to the Solicita- tion and Distribution Policy, as per Jennison’s testimony. (Tr. 148–149, 252.) In this respect, I discredit as implausible Ab- delal’s claim, after testifying that he “may have” told Moya to shred the union flyers Moya removed from the breakroom table on May 15, 2022,32 that other materials which violated the Policy were sometimes shredded as opposed to simply discarded. (Tr. 326–329.) In fact, Abdelal provided no coherent explanation for how he determined which materials should be shredded as op- posed to thrown out, stating that materials which were “federal per legal anything that we need to get rid of” were shredded, and that the managers did “Whatever we felt needed to be done” with respect to shredding as opposed to discarding items. (Tr. 328.) Thus, the evidence establishes that the shredding of the union flyers, as directed by Store Leader Abdelal, constituted a depar- ture from the typical application of Apple’s Solicitation and Dis- tribution Policy. For all of the foregoing reasons, the evidence establishes that Apple enforced its Solicitation and Distribution Policy in a dis- parate or discriminatory manner by removing union flyers from the table in its employee breakroom at the WTC store on May 15, 2022, May 27, 2022, and June 1, 2022, in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent Apple, Inc. is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, AFL–CIO (“the Union”) is a labor organization within the meaning of Section 2(5) of the Act. removing it. Tr. 271–272. Given Brown’s unreliable claim that he did not realize that he was removing Union flyers from the breakroom table, I credit O’Hara’s testimony that Brown did not in fact speak to the em- ployee seated at the breakroom table before removing the flyer, conduct also not evinced by O’Hara’s video of the incident. Tr. 133–134, 271– 272; GC Exh. 7. I note that in O’Hara’s video, the seated employee is wearing earbuds and is not interacting with Brown. 32 I further credit in this respect that O’Hara’s unrebutted testimony that Romero stated that he had shredded the union flyers he removed from the breakroom table on June 1, 2022. APPLE, INC. 17 3. On May 9, 2022, Apple coercively interrogated employees regarding their protected concerted activity and their union sym- pathies, in violation of Section 8(a)(1) of the Act. 4. On May 15, 2022, May 27, 2022, and June 1, 2022, Apple confiscated union flyers in its employee breakroom, a non-work- ing area, in violation of Section 8(a)(1) of the Act. 5. By prohibiting the placement of union flyers on the em- ployee breakroom table on May 15, 2022, May 27, 2022, and June 1, 2022, while permitting solicitation and distribution with respect to nonunion materials, Apple selectively and disparately enforced its Solicitation and Distribution Policy, in violation of Section 8(a)(1) of the Act. 6. The unfair labor practices described above affect com- merce within the meaning of Section 2(6) and (7) of the Act. The Remedy Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the Act’s policies. Respondent shall post an appropriate information notice, as described in the attached Appendix. This notice shall be posted in the Respondent’s facility at 185 Greenwich Street, New York, New York, wherever notices to employees are regularly posted, for 60 days, without anything covering the notice or defacing its contents. In addition to the physical posting of paper notices, notices shall be distributed electronically, posted on an intranet or an internet site, and/or other electronic means, to the extent Respondent customarily communicates with its employees in such a manner. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed its 185 Greenwich Street facility, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by Respondent at any time since May 1, 2022. General Counsel requests as part of the remedy that I order Respondent to rescind or revise its Solicitation and Distribution Policy, which was applied in a manner that restricted its employ- ees in the exercise of their Section 7 rights. As discussed in de- tail above, such a remedy was eliminated by the Board in AT&T Mobility, LLC, 370 NLRB No. 121 (2021). As an Administra- tive Law Judge, I am required to apply existing Board precedent that has not been overruled by the Board itself or by the Supreme Court. See Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984). Thus, General Counsel’s request for an order requiring that Respond- ent revise or rescind its Solicitation and Distribution Policy is denied. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended33 ORDER Apple, Inc., its officers, agents, successors and assigns shall 1. Cease and desist from (a) Coercively interrogating employees regarding their 33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended protected concerted activities and union sympathies. (b) Confiscating union flyers from its employee breakroom, a non-working area. (c) Selectively and disparately enforcing its Solicitation and Distribution Policy by prohibiting the placement of union flyers on the employee breakroom table, while permitting solicitation and distribution with respect to nonunion materials. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Within 14 days after service by the Region, post at its fa- cility at 185 Greenwich Street, New York, New York, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- utive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If Respondent has gone out of business or closed the 185 Greenwich Street fa- cility, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by Respondent at any time since May 1, 2022. (b) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. Dated, Washington, D.C. June 20, 2023 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT coercively interrogate you regarding your pro- tected concerted activities and your sympathies or sentiments with respect to Communications Workers of America, AFL–CIO (the Union) WE WILL NOT confiscate union flyers in our employee Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 breakroom, a nonworking area. WE WILL NOT selectively and disparately enforce our Solicita- tion and Distribution Policy by prohibiting the placement of un- ion flyers on the employee breakroom table, while permitting so- licitation and distribution with respect to nonunion materials. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act. APPLE, INC. The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case 02-CA-295979 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.