In-N-Out Burger, Inc. v. Nat'l Labor Relations Bd.

894 F.3d 707 (2018) United States Court of Appeals for the Fifth Circuit 2018-07-06

Employer petition challenging Board order against its blanket button prohibition; court enforces order after examining public-image and safety justifications. (result: claimant-won)

Facts

  1. 3 Interference, restraint or coercion satisfied law
    Palmini then told Crowder that he could not add anything to the uniform and instructed Crowder to remove the button.
  2. 3 Interference, restraint or coercion satisfied law
    By prohibiting employees from "[w]earing any type of pin or stickers," In-N-Out's rule restricts its employees' Section 7 rights and is therefore presumptively unlawful.
  3. 15 Narrow insignia-restriction justification not no-evidence
    The Christmas and In-N-Out Foundation buttons are approximately three times larger in diameter than the "Fight for $15" buttons.
  4. 15 Narrow insignia-restriction justification not no-evidence
    Under Board law, an employer need not show "actual harm" in order to establish "special circumstances," but it must put forth specific, non-speculative evidence of the adverse effects it claims justify its restriction.
  5. 15 Narrow insignia-restriction justification not no-evidence
    We uphold the Board's reasonable conclusion that In-N-Out failed to establish a "special circumstances" defense based on its "public image" interest.
  6. 15 Narrow insignia-restriction justification not no-evidence
    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[ ]."