When You Already Lost Before the Campaign Began: Some Thoughts About Consistency in the Workplace

Consistency: The Single Most Important Word in Labor Relations Right Now

A recent decision in Apple, Inc. v. NLRB affirms that employers can lawfully remove union flyers, as long as the removal is governed by a uniformly enforced policy. 

Fisher Phillips, a nationally recognized management-side labor and employment law firm known for its deep expertise in workplace policy, recently highlighted the Fifth Circuit’s ruling in this article. 

This latest ruling reaffirms what’s been a throughline in labor law for decades: employers don’t win because they act; they win because they can prove they acted the same way every time. 

This particular case involved the employer, Apple, removing union flyers that employees had placed on breakroom tables. Managers at the location saw the flyers and discarded them within minutes. 

Some of you might be wondering why this would even be an issue. I've been asked more than once, "Don't I have the right to throw away anything I don't want in my breakroom?"

Yet, the union filed an unfair labor practice charge (ULP) against Apple, citing discrimination. 

The Most Powerful Union-Prevention Tool You Already Have

The location had a solicitation and distribution policy; a formal, written rule. 

Here's the catch: alone, that policy probably would have been insufficient. 

Apple had a longstanding practice of keeping the store “grand opening ready." It was that, their attorneys argued, that proved no discrimination had taken place. Apple's attorneys were able to demonstrate to the court that there was an expectation that shared spaces be kept clean and free of clutter. It was an unwritten practice, but that didn't matter. They could show that the policy had been uniformly enforced in the past. Managers had previously removed non-union items including opera performance flyers, folk music event advertisements, and even a going-away party notice just days before the union materials appeared. 

Had Apple not enforced their policy all along, the court likely would have found that they did, in fact, discriminate. The key takeaway that surfaces time and time again in these cases is that the burden isn’t on the union to prove discrimination. It’s on the employer to prove consistency.

If you always keep your shared spaces clear of non-work-related materials, you can legally discard union propaganda. If not, it may be illegal for you to throw those flyers away. 

The same is true for other activities at your workplace. 

In this blog post, I noted: "if you've always permitted employees to distribute literature (e.g., fundraisers, bake sales, sports pools, or event flyers), you'll most likely have to let the union do the same. If, in the past, you've allowed outsiders to come in and give presentations to employees (e.g., an insurance broker presenting open enrollment details, a blood drive, charity, college or military recruiters) it's possible you'll have to allow the union to do so as well. 'Fair is fair,' the law will say. If you don't like it, but never prevented it before, you may not have a choice."

Consistency Builds Credibility and Protects Your Workplace

For employers, the ability to demonstrate that the rules of your workplace apply to everyone in the same way, every time, can turn out to be your greatest strength. That steadiness is what the courts look for, and it is what employees notice. When your policies are applied evenly, you protect yourself legally and you set a standard of fairness that employees can recognize.

So, even if things are quiet right now, you may want to take a moment to check your employee handbook. Have a conversation about the benefits vs. potential costs of allowing those third-party vendors present to your employees. Determine if you feel comfortable allowing the union to be on premises. 

Take a look at how you're applying discipline. I know many companies are guilty of allowing "innocent acts" slide. For some reason, Girl Scout cookies come up a lot in the conversation. 

Solicitation flyers placed by various employees
on break room tables.

The story goes: someone uses the company's communication network (email) to sell Girl Scout cookies on behalf of their daughter's troop. It is against written policy, but not wanting to feel like monsters (I mean, who wants to pick on a Girl Scout???) management "lets it slide". The email sender is never confronted. No written documentation is filed that indicates any action was taken. It happens again, this time from a different employee who wants to sell candy bars for his kid's little league team. Then, one more time. This employee wants to know if anyone is interested in purchasing used ski equipment. Yes, that is a real example I encountered. Each time, it was ignored. 

Dismissed. 

I think you know where this is headed...

That company could be in violation of the law if they then disallow an employee from using email to communicate their pro-union views to others, or invite them to a union-sponsored event. 

Create Practices Now That You Can Rely On Later

Written rules are important, but practices are crucial. Unions and employees have legal rights. A little awareness goes a long way. 

When you enforce your rules the same way every time, you give yourself solid ground to stand on. You also send a clear message that your workplace is fair, predictable, and steady. That’s something employees respect, and it puts you in the best position if a campaign ever comes your way.