In-N-Out Burger, Inc. v. NLRB, No. 17-60241 (5th Cir. 2018)Annotate this Case
The Fifth Circuit denied In-N-Out's petition for review of the Board's order finding that the company's rule prohibiting employees from wearing any type of pin or stickers on their uniforms was unlawful under the National Labor Relations Act. In this case, employees of the In-N-Out Burger in Austin wore buttons demonstrating solidarity with the "Fight for $15" campaign and managers responded by invoking the company rule. The court held that, by prohibiting employees from wearing any type of pin or stickers, In-N-Out's rule restricted its employees' section 7 rights and was therefore presumptively unlawful. The court upheld the Board's reasonable conclusion that In-N-Out failed to establish a special circumstances defense based on its public image interest. Finally, the court held that the company violated section 8(a)(1) by maintaining and enforcing the rule and by instructing an employee to remove his button, and when it responded to an employee's question about wearing the button by stating that the button was not part of the uniform. Accordingly, the court granted the Board's cross-application for enforcement.