Want Fries with that NLRA Violation?

Darrell VanDeusen
Darrell VanDeusen

The Court of Appeals for the Fifth Circuit recently enforced a decision of the National Labor Relations Board (NLRB) that In-N-Out Burger in Austin, Texas violated labor laws with its “no pins or stickers” rule, when it stopped employees wearing buttons supporting the “Fight for $15” campaign – a movement advocating for a $15 per hour minimum wage.  In-N-Out Burger, Inc. v. NLRB, No. 17-60241, 2018 U.S. App. LEXIS 18472 (5th Cir. July 6, 2018).

In April 2015, employees at the Austin location started wearing the buttons in support of an increased minimum wage for fast food workers.  But the company’s policy, which it claims to strictly enforce, is that “[w]earing any type of pin or stickers is not permitted.”   Well, sort of.  You see, the company also requires its employees to wear company-issued buttons twice a year.

The court noted that “[d]uring the Christmas season, employees are required to wear buttons stating ‘MERRY CHRISTMAS / IN-N-OUT HAMBURGERS / NO DELAY.’ During the month of April, employees must wear buttons soliciting donations to the In-N-Out Foundation, a nonprofit organization established by the company’s owners that focuses on preventing child abuse and neglect. Those buttons read: ‘TEXT ‘4KIDS’ TO 20222 TO DONATE / YOUR $5 WILL HELP PREVENT CHILD ABUSE / IN-N-OUT BURGER FOUNDATION.’ The In-N-Out Foundation buttons come in four variations, each featuring a picture of a different child. The Christmas and In-N-Out Foundation buttons are approximately three times larger in diameter than the ‘Fight for $15’ buttons.”

Unfair labor practice charges were filed with the NLRB, a complaint was issued and an ALJ heard the case.  At the hearing, a company witness testified that its interest in maintaining a unique public image and its concern with ensuring food safety constituted “special circumstances” to justify the rule. The ALJ did not buy that claim and rejected the “special circumstances” defense. In-N-Out Burger, Inc., 365 NLRB No. 39 (Mar. 21, 2017).  The Fifth Circuit held likewise.

The food safety risk argument was perhaps the most interesting.  In-N-Out argued that the buttons were so small that they could fall into a customer’s food without an employee noticing. The NLRB had noted that the rule banned all buttons “other than its own,” without mentioning anything about worker or customer safety, the court said, finding that defense hard to swallow.  Judge Graves wrote that “[t]he 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.”

This case is a good reminder to employers that the NLRA historically has been read to permit employees the right to wear items pertaining to their hours, wages, or other job conditions, their union support, and other protected matters.  The presumption is that a work rule restricting that right presumptively violates the Act.

An employer can overcome that presumption only with substantial, non-speculative evidence of special circumstances that exist and that the restriction is narrowly tailored to those special circumstances.  In this case, the NLRB did not abuse its discretion when it found In-N-Out failed to overcome the presumption of an illegal restriction.

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