The Fight for $15 and the NLRB

In-N-Out Burger, Incorporated (In-N-Out) found itself on the wrong side of National Labor Relations Board (NLRB) unfair labor practice proceedings for prohibiting its employees from "wearing any type of pin or stickers" on their uniforms. The Fifth Circuit, in In-N-Out Burger, Incorporated v. National Labor Relations Board (No. 17-60241, decided July 6, 2018), upheld a NLRB finding that In-N-Out violated Section 8(a)1 of the National Labor Relations Act by prohibiting its employees from wearing a "Fight for $15" button and for maintaining an overly broad uniform policy.

In-N-Out has a strict uniform policy and attempts to maintain consistency with respect to its public image. The company generally only allowed company sponsored buttons and insignia to be worn as part of the In-N-Out uniform, and company buttons usually were distributed only twice a year; at Christmas and in spring for its promotion of the In-N-Out Foundation.

In this case, an In-N-Out employee filed an unfair labor practice charge with the NLRB after being informed by his supervisor to remove a button which included the phrase "Fight for $15". The button was the size of a quarter and featured "$15" superimposed on the image of a raised fist.

The right to wear items, such as buttons, pins and stickers, relating to the terms and conditions of employment has long been recognized as a basic employee right under Section 7 of the National Labor Relations Act. The NLRB presumes that a rule infringing upon an employee’s Section 7 right to wear buttons is invalid.

Nevertheless, a "narrow" exception to the general rule exists if "special circumstances" are present. To establish special circumstances justifying an exception from the general rule, an employer has to be able to demonstrate that wearing the button would: (1) jeopardize employee safety; (2) damage machinery or products; (3) exacerbate employee dissension; or (4) unreasonably interfere with the public image that the employer has established as part of its business plan through appearance rules for employees. Only in these cases can an employer establish that its rule or policy is sufficiently narrowly tailored to restrict wearing badges that refer or relate to terms and conditions of employment. 

In-N-Out's policy obviously conflicted with the rights of employees to communicate with each other and the public regarding terms and conditions of employment. In-N-Out argued that two "special circumstances" necessitated its no-button policy. The company's business plan has long been focused on fostering a "particularized public image". In-N-Out emphasized that customer experiences should be consistent from one store to the other, which includes requiring employees in all stores across the country to be consistently dressed. 

In-N-Out also attempted to justify its no-button policy as a "special circumstance" necessitated by safety. It claimed that the small size of the Fight for $15 button and its less than sturdy pin mechanism would create a hazard if the buttons fell into the food items purchased by customers. 

The Board ultimately rejected both arguments, finding that In-N-Out failed to demonstrate a connection between the company's no-button policy and its efforts to advance its articulated interests. The NLRB said In-N-Out failed also to offer specific, non-speculative evidence of the adverse effects the company claimed justified the policy.

The Fifth Circuit decision is particularly instructive because it traces NLRB precedent concerning the wearing of badges and stickers by employees. It noted similar cases where buttons or badges could not be prohibited through an employer's policy, such as in a hospital setting. The Fifth Circuit also, however, distinguished several cases.  In one such case, an employer prevented the wearing of badges to minimize employee dissension as a result of competing union claims in the workplace. Additionally, where an employer was creating a "theater-like" atmosphere and the uniforms rose to the level of costumes, the employer had a ensuing right to prevent the employees from wearing buttons or stickers which compromised the uniform/costume.

The lesson for employers in this case is that, barring special circumstances, employees may wear buttons communicating a message if the message relates to terms and conditions of employment, even if the message is political. This is particularly true in the fast food and service industries where the fight for $15 is largely being fought. Employers need to recognize that if they enforce a no-button policy, they must demonstrate that special circumstances exist and prove that a no button policy is sufficiently and narrowly crafted to address those special circumstances. The most compelling of the special circumstances, of course, would be employee safety and damage to company property (buttons may get caught in machinery), or dissension among employees. 

The battle in this arena is most often fought in the health care sector where unions are becoming increasingly active. Health care personnel frequently are addressing staffing ratios, overtime requirements and other employment policies which are tied to patient care. It is in this area where we see conflicting NLRB decisions.  Nevertheless, the pathway to a successful resolution on the employer's part is to have a narrowly-tailored policy focusing specifically on the traditional special circumstances permitted by the NLRB. 

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