Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
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.
To contact the reporter on this story: Michael Rose in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the decision is available at http://www.bloomberglaw.com/public/document/NLRB_ALJ_Decision_INNOUT_BURGER_INC_No_CA156147_2016_BL_221146.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)