In-N-Out Burger Inc. won’t get a chance to convince the U.S. Supreme Court that it should be allowed to ban workers from wearing buttons supporting a union-backed campaign for higher minimum wages and stronger workplace rights.
The high court Feb. 25 declined to hear In-N-Out’s challenge to a U.S. Court of Appeals for the Fifth Circuit ruling that it violated labor law by telling a worker to remove his “Fight for $15" button. The Fifth Circuit ruled that the burger chain’s concerns about food safety and its unique public image can’t justify restricting workers’ rights to communicate and take actions to improve their employment conditions via a ban on buttons.
“Today’s decision affirms that no company can just unilaterally decide to take away our right to speak out and join together in a union,” Alondra Becerra, a Fight for $15 leader and In-N-Out employee in Los Angeles, told Bloomberg Law in an e-mailed statement. “It’s a victory for workers everywhere who are fighting to win our unions and make the economy more equal that the Supreme Court is not going to take up In-N-Out’s case.”
In-N-Out isn’t a franchised business, though it’s similarly been targeted by union organizers and workers over labor issues at its restaurants. The company didn’t immediately respond to a request for comment.
New Free Speech Argument Fails for Now
The National Labor Relations Board made the original finding in the case that it’s a violation of federal labor laws to ask workers to remove the buttons or refrain from wearing them.
In asking for high court review, the company made a novel argument to extend the free speech rights of corporate entities. In an argument not raised at the Fifth Circuit, In-N-Out said that outlawing its ban on Fight for $15 buttons is a First Amendment violation because it’s tantamount to the government forcing it to endorse a pro-union stance.
It cited the Supreme Court’s Janus v. AFSCME decision, which held that the First Amendment is violated if the government compels nonunion employees to pay a partial fee to the public unions that represent their workplaces.
In-N-Out’s attorneys said the change in the law that resulted from Janus is extraordinary enough to merit consideration of their argument, but the high court declined to take up the case. That may indicate that the justices believe it’s more appropriate to allow lower district and appellate courts to begin defining the boundaries and contours of Janus before they decide to clarify the decision again.
Management attorneys who filed a “friend-of-the-court” brief arguing for the court to review the question said they’re still hopeful the justices will eventually weigh in.
“It is of course impossible to know precisely why the Supreme Court” declines to hear any “given case,” Corbin Barthold, litigation counsel at the Washington Legal Foundation, a conservative organization that advocates for free-market principles, told Bloomberg Law in a Feb 25 e-mail.
The NLRB’s and Fifth’s Circuit’s decisions “wrongly elevated employees’ statutory right to organize above employers’ constitutional right to be free of compelled speech,” Barthold said. “WLF is optimistic that the Court will take up this issue in a future case.”
Grant Alexander, a partner who represents employers at law firm Alston & Bird, agreed that the high court’s passing on the case doesn’t necessarily mean that the justices think the issue is entirely settled. “Sometimes they’re looking for cases that’ll be good or better platforms to change the law or announce more clearly their view of the law,” Alexander told Bloomberg Law Feb. 25.
“The problem in this case is that In-N-Out said we can’t have buttons because we’re about a clean look, but they make employees wear things on their uniforms at least twice a year, so the court below said you can’t have it both ways,” he said. “If you had an employer with a stronger special circumstance as to why employees can’t wear buttons, then you might see the same impetus behind Janus” be used for a ruling that employers have a free speech right to ban certain pins.
The case is In-N-Out Burger, Inc. v. NLRB, U.S., No. 18-340, cert. denied 2/25/19.
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(Updated with additional reporting.)