‘Fight for $15’ Pins Could Not Be Banned from Uniforms

 

By Jeffrey Rhodes September 26, 2018
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In-N-Out Burger committed an unfair labor practice when it maintained a policy requiring clean uniforms without any pins or stickers supporting any causes, which it used to prohibit employees from wearing "Fight for $15" buttons, the 5th U.S. Circuit Court of Appeals ruled.

The "Fight for $15" campaign is 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.

In-N-Out Burger Inc. owns and operates a chain of more than 300 fast-food restaurants in California, Texas and several other states. In-N-Out requires its employees to follow a detailed appearance code and to wear a uniform consisting of nine elements: white pants, a white shirt, white socks, black shoes, a black belt, a red apron, a gold apron pin, a company-issued name tag and a hat.

In-N-Out strictly enforces its uniform policy and appearance rules. The company also maintains a rule in its employee handbook that states "Wearing any type of pin or stickers is not permitted." Despite this rule, In-N-Out requires its employees to wear company-issued buttons twice a year.

During 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.

In April 2015, employees at an In-N-Out restaurant in Austin, Texas, wore buttons demonstrating solidarity with the "Fight for $15" campaign. Each button was the size of a quarter and featured "$15" superimposed on an image of a raised fist.

Managers responded by invoking the company rule prohibiting pins or stickers on employee uniforms. A manager told one employee that he could not add anything to the uniform and instructed him to remove the button. The employee complied but informed the manager that he would be filing an unfair labor practice charge with the National Labor Relations Board (NLRB).

The charge was filed, and, following an investigation, the NLRB's general counsel issued a complaint alleging that the company's no-pins-or-stickers rule violated the National Labor Relations Act (NLRA). In-N-Out sought to demonstrate that its interest in maintaining a unique public image and its concern with ensuring food safety constituted special circumstances sufficient to justify the rule.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

The NLRB found that In-N-Out had committed unfair labor practices by maintaining and enforcing the no-pins-or-stickers rule and by directing an employee to remove his "Fight for $15" button. The NLRB ordered In-N-Out to stop maintaining and enforcing a no-pins-or-stickers rule without any exception for buttons or insignia pertaining to wages, hours, terms and conditions of employment, or union or other protected activities. The NLRB further ordered In-N-Out to rescind its rule, remove from its files any reference to the unlawful instructions given to its employees and post remedial notices at its locations.

In-N-Out subsequently filed a petition for review with the 5th Circuit, and the board cross-applied for enforcement. The 5th Circuit ruled that In-N-Out's public-image argument failed to demonstrate a connection between the rule and the company's interests in preserving a consistent menu and ownership structure, ensuring excellent customer service, and maintaining a "sparkling clean" environment.

The court found that it was not enough that In-N-Out is a retailer, that employees interact with the public, or that customers may be exposed to employees displaying protected items and might be offended by the items' content or message.

The court agreed with the NLRB that 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. In-N-Out also could not assert safety concerns when it never tried to examine the union pins to determine whether they created any safety risk to customers or their food.

In-N-Out Burger, Inc. v. National Labor Relations Board, 5th Cir., No. 17-60241 (July 6, 2018).

Professional Pointer: Employer policies that prohibit expressive buttons or insignia generally violate the NLRA when applied to union buttons or insignia. Such policies are permitted only when applied without exception to all expressive buttons or insignia and when supported by strong reasons such as a distinctive public image or proven risks to customer safety.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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