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By Michael Rose
July 11 — In-N-Out Burger Inc. unlawfully maintained a policy barring employees from wearing pins on their uniforms expressing support for the national “Fight for $15” campaign among fast-food workers and must rescind it, a National Labor Relations Board administrative law judge found ( In-N-Out Burger Inc., 2016 BL 221146, N.L.R.B. A.L.J., No. 16-CA-156147, 7/11/16 ).
The California-based burger chain, which has a cult-like following, maintained a policy on employee attire prohibiting the wearing of pins and buttons other than a company-provided name tag, Judge Keltner W. Locke wrote.
But In-N-Out didn't prove that its ban on employees wearing “Fight for $15” pins didn't fall under a number of “special circumstances” under which an employer may institute such a ban under the National Labor Relations Act, the July 11 decision said.
The decision shows that the NLRB has a high bar when it comes to the “special circumstances” exception to bans on union insignia. It's also not the first time that the board has found in favor of workers involved in the Fight for $15, the nationwide effort to raise wages in the fast-food industry, backed primarily by the Service Employees International Union.
Representatives of In-N-Out Burger didn't respond to Bloomberg BNA's request for comment on the decision, nor did an attorney representing it.
The case centered around one of the chain's outlets in Austin, Texas.
“The Board has found that special circumstances warranted an exception to the general rule where the wearing of union insignia would jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or, unreasonably interfere with a public image that the employer has established as part of its business plan,” Locke wrote.
In-N-Out argued that pins supporting the Fight for $15 would interfere with its business plan of “creating a public image of a very clean restaurant where all employees dress alike,” Locke said, but this didn't rise to the level of a “special circumstance” that would allow the ban on union insignia.
For one thing, In-N-Out management required employees to wear its own buttons during the holiday season in conjunction with a Christmas promotion, the decision said.
The employer argued that the Fight for $15 pin was an “individualized” button, but it failed to prove how allowing such a button “would have a negative impact on its ability to achieve its mission,” Locke found.
The ALJ recommended that the board order In-N-Out to rescind its prohibition on wearing pins or buttons from its employee handbook, and to notify employees who received the handbook that it had done so. He also recommended that the board order the employer to post a notice for workers at its Austin location stating that it had done so.
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Text of the decision is available at http://www.bloomberglaw.com/public/document/NLRB_ALJ_Decision_INNOUT_BURGER_INC_No_CA156147_2016_BL_221146.
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