Daily Labor Report®

In-N-Out Burger’s Ban on ‘Fight for $15' Buttons Broke the Law (2)

July 9, 2018, 3:02 PMUpdated: July 9, 2018, 6:50 PM

In-N-Out Burger Inc. violated federal labor law when it told servers in Austin, Texas, they couldn’t wear “Fight for $15" buttons on their uniforms.

The fast-food chain didn’t show the “special circumstances” necessary to allow it to avoid federal labor law’s general requirement that employees must be permitted to wear union insignia at work, a federal appeals court said. The July 6 ruling reaffirms that the exception to the general requirement is “narrow” and that employers typically will find themselves on the wrong side of the law if they try to block workers from displaying their support for unionization or union activity while on the clock.

“We respectfully disagree with the decision reached by the Fifth Circuit Court of Appeals and we fully intend on petitioning the decision to the Supreme Court of the United States,” In-N-Out Burger Executive Vice President Arnie Wensinger told Bloomberg Law in an emailed statement. “We believe that providing a consistent uniform is important to the overall sparkling-clean environment of our restaurants and we also believe our customers would agree that In-N-Out Burger should be able to choose what our Associates wear as a uniform.”

“Regardless of this decision, we will continue to treat our Associates like family with starting pay well above minimum wage along with the some of the best benefits in our industry,” Wensinger said.

In-N-Out argued its “no pins or stickers” rule was needed to protect the “public image” it sought to create by consistently presenting its workers in clean white uniforms “unadorned” by any personal additions. But the evidence supported the National Labor Relations Board’s finding that the company’s longtime adherence to that rule alone didn’t establish special circumstances excusing it from the board’s general prohibition against blanket rules banning union insignia, the U.S. Court of Appeals for the Fifth Circuit said.

And In-N-Out’s practice of requiring servers to wear company-supplied buttons on their uniforms during the Christmas season and during April to support the chain’s nonprofit foundation for the prevention of child abuse further undercut its argument, Judge James E. Graves Jr. said. Those buttons are roughly three times the size of the pro-$15-minimum-wage buttons workers in Austin were told they couldn’t wear, Graves said.

The court also rejected the company’s argument that the “Fight for $15" buttons presented a food safety risk. In-N-Out contended that the buttons were so small that they could fall into a customers food without an employee noticing. But as the NLRB found, the company’s rule banned all buttons “other than its own,” without mentioning anything about worker or customer safety, the court said.

“The Board also noted that In-N-Out’s managers did not make ‘any effort to examine’ the ‘Fight for $15' buttons for safety issues before restricting employees from wearing them,” Graves said.

The National Labor Relations Act has long been read as giving workers the right to wear items pertaining to their hours, wages, or other job conditions, their union support, and other protected matters, the judge said. Any employer rule that infringes upon that right is presumed by the NLRB to be invalid, he said.

To overcome that presumption, an employer must establish with substantial, nonspeculative evidence that special circumstances exist and that the exception the company crafted is narrowly tailored to those special circumstances. The NLRB didn’t abuse its discretion in finding In-N-Out failed to make the necessary showing, Graves said.

Judges Carolyn Dineen King and Jennifer Walker Elrod joined the opinion.

“We do not have a comment on the Fifth Circuit’s ruling,” the NLRB’s Office of Congressional and Public Affairs told Bloomberg Law in a July 9 email.

General counsel for the board represented the NLRB. Littler Mendelson P.C. represented In-N-Out.

The case is In-N-Out Burger, Inc. v. NLRB, 2018 BL 240701, 5th Cir., No. 17-60241, 7/6/18.

(Updated with additional reporting)

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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