Why it matters
The U.S. Court of Appeals, Fifth Circuit, affirmed a ruling from the National Labor Relations Board (NLRB or Board) that a ban on pins violated Section 8(a)(1) of the National Labor Relations Act (NLRA), and held that In-N-Out Burger failed to overcome the presumption that a blanket ban on insignia is unlawful under the statute. The fast-food chain required employees to adhere to a dress code that included a prohibition on wearing “any type of pin or stickers.” In April 2015, a worker at a Texas location wore a “Fight for $15” pin and was instructed to remove it. He filed a charge with the NLRB, which agreed that the dress code violated the NLRA. The federal appellate panel affirmed, finding that the public image exception relied on by the employer was “exceedingly narrow” and that the employer’s interest in maintaining a unique public image did not constitute “special circumstances” sufficient to justify the no-pin rule. The court noted that the fact In-N-Out Burger requires employees to wear company-issued buttons twice a year didn’t help its case.
Detailed discussion
To demonstrate solidarity with the “Fight for $15” campaign—a national movement advocating for a $15-per-hour minimum wage, the right to form a union without intimidation and other improvements for low-wage workers—an employee at an Austin, TX, In-N-Out Burger wore a “Fight for $15” button to work.
The next day, another worker also wore the button and was called into the manager’s office, where he was instructed to remove the button. The employee filed an unfair labor practice charge with the NLRB. An administrative law judge (ALJ) determined the employer violated the NLRA, and on appeal, the Board affirmed.
In-N-Out appealed again, this time to the Fifth Circuit. The employer explained that the company strictly enforces its uniform and appearance rules to promote a consistent public image across its 300 locations, including a nine-element uniform and a prohibition found in the employee handbook that states, “Wearing any type of pin or stickers is not permitted.”
Notwithstanding this rule, however, the employer required employees to wear company-issued buttons twice a year. During the Christmas season, employees must wear buttons stating “Merry Christmas/In-N-Out Hamburgers/No Delay.” In April, workers 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.
The employer argued that its interest in maintaining a unique public image and its concern with ensuring food safety constituted “special circumstances” sufficient to justify the no-pin rule. But the Fifth Circuit was not persuaded.
“Since the Act’s earliest days, it has been recognized that Section 7 protects the right of employees to wear items—such as buttons, pins, and stickers—relating to terms and conditions of employment (including wages and hours), unionization, and other protected matters,” the federal appellate panel wrote. “Accordingly, an employer that maintains or enforces a rule restricting employees from displaying such items commits an unfair labor practice in violation of Section 8(a)(1).”
The Board has created a “narrow” exception to this rule if an employer can demonstrate “special circumstances sufficient to outweigh [its] employees’ Section 7 interests and legitimize the regulation of such insignia, then the right of employees to wear these items ‘may give way.’” The “special circumstances” exception is applied only in a limited number of situations, including where it would “unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.”
In addition, a rule that infringes on employees’ Section 7 right to wear protected items is presumptively invalid, the panel noted, and it is the employer’s burden to overcome that presumption. In-N-Out Burger was unable to overcome this presumption and demonstrate the “special circumstances” required, the court found.
“In-N-Out failed to demonstrate a connection between the ‘no pins or stickers’ rule and the company’s asserted interests in preserving a consistent menu and ownership structure, ensuring excellent customer service, and maintaining a ‘sparkling clean’ environment in its restaurants,” the court said. Further, “In-N-Out’s requirement that its employees wear the Christmas and In-N-Out Foundation buttons undercut its claim that ‘special circumstances’ required employee uniforms to be button-free.”
“If the employee uniform—which In-N-Out describes as an integral component of its overall public image—changes several times each year, then either the company’s interest in maintaining a ‘consistent’ public image is not as great as it suggests, or, alternatively, the uniform does not play as critical a role in maintaining that public image as In-N-Out claims,” the panel wrote. “As the Board observed, the Christmas and In-N-Out Foundation buttons are appreciably larger and ‘significantly more conspicuous’ than the ‘Fight for $15’ buttons. Since the addition of larger, more noticeable buttons to employee uniforms does not interfere with In-N-Out’s public image, the Board permissibly concluded that allowing employees to wear smaller buttons protected by Section 7, such as the ‘Fight for $15’ buttons, would not unreasonably interfere with the company’s public image.”
Nor did In-N-Out’s argument about maintaining food safety sway the Fifth Circuit. “In-N-Out’s ‘no pins or stickers’ rule banned all buttons other than its own, ‘without regard to their safety.’ Accordingly, even if In-N-Out had demonstrated a genuine basis for its food safety concerns—which it did not—it failed to show that its rule was ‘narrowly tailored’ to that concern,” the court said.
“With respect to the ‘Fight for $15’ buttons, the ALJ examined those buttons, as well as the company-issued buttons, and ‘[d]iscern[ed] no apparent, significant difference in safety.’ 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, which indicates that the company’s food safety argument is a ‘post hoc invention[].’”
The panel affirmed the NLRB’s order.
To read the opinion in In-N-Out Burger, Inc. v. NLRB, click here.
