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

Case: 17-60241 Document: 00514543704 Page: 1 Date Filed: 07/06/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60241 FILED
July 6, 2018
Lyle W. Cayce
IN-N-OUT BURGER, INCORPORATED, Clerk
Petitioner Cross-Respondent
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Before KING, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
In April 2015, employees at an In-N-Out Burger in Austin, Texas wore
buttons demonstrating solidarity with the “Fight for $15” campaign, 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. 1
1 See generally Kate Andrias, The New Labor Law, 126 YALE L.J. 2, 47–50 (2016)
(tracing the history of the “Fight for $15” movement from its November 2012 inception among
striking fast-food workers in New York City through April 2015, when tens of thousands of
individuals participated in mass protests and strikes across the United States); Steven
Greenhouse & Jana Kasperkevic, Fight for $15 Swells into Largest Protest by Low-Wage
Workers in US History, THE GUARDIAN (Apr. 15, 2015), https://www.theguardian.com/us-
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But when managers responded by invoking a company rule that prohibits
employees from “wearing any type of pin or stickers” on their uniforms, the
employees desisted. The National Labor Relations Board (the “Board” or
“NLRB”) found the company’s rule unlawful under the National Labor
Relations Act (the “Act” or “NLRA”). In-N-Out now asks this court to set aside
the Board’s order, while the Board asks us to enforce it. For the reasons stated
below, we DENY In-N-Out’s petition for review and GRANT the Board’s cross-
application for enforcement.
I
In-N-Out Burger, Inc. owns and operates a chain of over 300 fast-food
restaurants in California, Texas, and several other western 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. The company also maintains a rule in its employee handbook
that states: “Wearing any type of pin or stickers is not permitted.” In-N-Out
strictly enforces its uniform policy and appearance rules.
On April 17, 2015, Amanda Healy, an employee at an In-N-Out
restaurant in Austin, wore a “Fight for $15” button during work. The button
was the size of a quarter and featured “$15” superimposed on an image of a
raised fist.
news/2015/apr/15/fight-for-15-minimum-wage-protests-new-york-los-angeles-atlanta-
boston.
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No manager spoke to Healy about her button that day, but when employee
David Nevels asked manager Daniel Moore if he could wear a “Fight for $15”
button, Moore responded that the button was “not part of the In-N-Out
uniform.”
The following day, Healy again wore a “Fight for $15” button. This time,
Moore questioned her about it. Healy told Moore that the button referred to a
campaign by fast-food workers pursuing “a higher minimum wage, living
wages.” Moore asked Healy if she thought store manager Nick Palmini “would
be okay” with her wearing the button. Healy replied that while she believed he
would be, it was her understanding that Palmini could not ask her to remove
the button. The conversation then ended. That same day, employee Brad
Crowder wore a “Fight for $15” button similar to Healy’s. An assistant
manager reported Crowder to Palmini, who called Crowder to his office.
Palmini asked Crowder if he was familiar with the company’s uniform policy.
Crowder replied that he was. Palmini then told Crowder that he could not add
anything to the uniform and instructed Crowder to remove the button.
Crowder complied but informed Palmini that he would be filing an unfair labor
practice charge with the National Labor Relations Board.
Notwithstanding the “no pins or stickers” 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. Those buttons read: “TEXT
‘4KIDS’ TO 20222 TO DONATE / YOUR $5 WILL HELP PREVENT CHILD
ABUSE / IN-N-OUT BURGER FOUNDATION.” The In-N-Out Foundation
buttons come in four variations, each featuring a picture of a different child.
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The Christmas and In-N-Out Foundation buttons are approximately three
times larger in diameter than the “Fight for $15” buttons.
Unfair labor practice charges were filed against In-N-Out, 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. An administrative law judge (“ALJ”) held a hearing at which Healy,
Palmini, Moore, and In-N-Out’s vice president of operations, Robert J. Lang,
Jr., testified. 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. The ALJ rejected the
company’s “special circumstances” defense, found that In-N-Out had
committed unfair labor practices by maintaining and enforcing the “no pins or
stickers” rule and by directing Crowder to remove his “Fight for $15” button,
and issued a recommended order. In-N-Out then sought further review by the
Board.
The Board’s decision largely affirmed the ALJ’s findings and conclusions.
In-N-Out Burger, Inc., 365 NLRB No. 39, 2017 WL 1103798 (Mar. 21, 2017).
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The Board adopted the ALJ’s findings that In-N-Out’s maintenance and
enforcement of the “no pins or stickers” rule and the instruction to Crowder
violated Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). In addition, the Board
found that In-N-Out committed an unfair labor practice when Moore told
Nevels that the “Fight for $15” button was not a part of the company uniform.
Based on these findings, the Board ordered In-N-Out to cease and desist from,
inter alia: “[m]aintaining and enforcing a rule that prohibits employees from
wearing, while on duty, any button or insignia apart from those it has
approved, and that makes no exception for buttons or insignia pertaining to
wages, hours, terms and conditions of employment or union or other protected
activities”; “[d]irecting employees to remove from their clothing any button or
insignia pertaining to wages, hours, terms and conditions of employment or
union or other protected activities”; and “[d]irecting employees that they may
not wear any [such] button[s] or insignia.” The Board further ordered In-N-Out
to take certain affirmative actions “necessary to effectuate the policies of the
Act,” including rescinding its “no pins or stickers” rule, removing from its files
any reference to the unlawful instructions given to Crowder and Nevels, and
posting remedial notices at its locations.
In-N-Out subsequently filed a petition for review of the Board’s order
with this court, and the Board cross-applied for enforcement. See 29 U.S.C.
§ 160(e), (f).
II
A
Judicial review of NLRB decisions and orders is limited and deferential.
This court “will affirm the Board’s legal conclusions ‘if they have a reasonable
basis in the law and are not inconsistent with the [National Labor Relations]
Act,’” Entergy Miss., Inc. v. NLRB, 810 F.3d 287, 292 (5th Cir. 2015) (quoting
Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 464 (5th Cir. 2001)), and will
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uphold the Board’s findings of fact so long as they are supported by “substantial
evidence,” Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 207–08 (5th Cir.
2014); accord 29 U.S.C. § 160(e). In recognition of the Board’s primary
responsibility for administering the Act and its expertise in labor relations, we
give significant deference to the Board’s application of the law to the facts, and
we will not disturb “plausible inferences [the Board] draws from the evidence,
even if we might reach a contrary result were we deciding the case de novo.”
Valmont Indus., 244 F.3d at 463 (quoting NLRB v. Thermon Heat Tracing
Servs., Inc., 143 F.3d 181, 185 (5th Cir. 1998)). To the extent the Board affirms
and adopts an ALJ’s findings and conclusions, we apply these same deferential
standards to the ALJ’s decision itself. See Weigand v. NLRB, 783 F.3d 889, 895
(D.C. Cir. 2015); NLRB v. KSM Indus., Inc., 682 F.3d 537, 544 (7th Cir. 2012);
Valmont Indus., 244 F.3d at 463; Standard Fittings Co. v. NLRB, 845 F.2d
1311, 1314 (5th Cir. 1988).
B
Section 7 of the National Labor Relations Act guarantees to employees
“the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the Act
enforces these rights by making it an unfair labor practice for employers to
“interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in [S]ection [7].” 29 U.S.C. § 158(a)(1).
Since the Act’s earliest days, it has been recognized that Section 7
protects the right of employees to wear items—such as buttons, pins, and
stickers—relating to terms and conditions of employment (including wages and
hours), unionization, and other protected matters. Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 801–03 (1945); id. at 802 n.7 (“[T]he right of employees
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to wear union insignia at work has long been recognized as a reasonable and
legitimate form of union activity, and the [employer]’s curtailment of that right
is clearly violative of the Act.” (quoting Republic Aviation Corp., 51 N.L.R.B.
1186, 1188 (1943))); Medco Health Solutions of Las Vegas, Inc., 364 NLRB No.
115, 2016 WL 4582495, at *4 (Aug. 27, 2016); Armour & Co., 8 N.L.R.B. 1100,
1112 (1938). Accordingly, an employer that maintains or enforces a rule
restricting employees from displaying such items commits an unfair labor
practice in violation of Section 8(a)(1). Republic Aviation, 324 U.S. at 796, 801–
03; Boch Imports, Inc., 362 NLRB No. 83, 2015 WL 1956199, at *2 (Apr. 30,
2015) (hereinafter, “Boch Honda”), enforced, Boch Imports, Inc. v. NLRB, 826
F.3d 558 (1st Cir. 2016); Ohio Masonic Home, 205 N.L.R.B. 357, 357 (1973),
enforced, 511 F.2d 527 (6th Cir. 1975).
The Board has created a “narrow” exception to this rule, however: if an
employer can demonstrate “special circumstances sufficient to outweigh [its]
employees’ Section 7 interests and legitimize the regulation of such insignia,”
then the right of employees to wear these items “may give way.” Pac. Bell Tel.
Co., 362 NLRB No. 105, 2015 WL 3492100, at *4 (June 2, 2015), pet. for review
dismissed, No. 15-1186, 2016 WL 3040578 (D.C. Cir. May 10, 2016); E & L
Transp. Co., 331 N.L.R.B. 640, 640 n.3 (2000) (“[T]he ‘special circumstances’
exception is narrow.”). The Board has explained the “special circumstances”
exception as reflecting a “balancing” of employees’ Section 7 rights and
employers’ potentially conflicting managerial interests. Medco, 2016 WL
4582495, at *7; Nordstrom, Inc., 264 N.L.R.B. 698, 700 (1982); see also Beth Israel
Hosp. v. NLRB, 437 U.S. 483, 504–05 (1978) (explaining that activities “carried
on by employees already rightfully on the employer’s property” implicate “[t]he
employer’s management interests rather than [its] property interests,” and
that “[t]his difference is one of substance” (quoting Hudgens v. NLRB, 424 U.S.
507, 521–22 & n.10 (1976))). But the Board does not conduct an open-ended
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balancing analysis anew in every case; rather, it has developed a framework
that guides the “special circumstances” inquiry and reinforces its limited scope.
First, the Board recognizes the “special circumstances” exception in only
a limited number of situations, such as where permitting employees to display
protected items would: (1) “jeopardize employee safety”; (2) “damage
machinery or products”; (3) “exacerbate employee dissension”; or
(4) “unreasonably interfere with a public image that the employer has
established, as part of its business plan, through appearance rules for its
employees.” P.S.K. Supermarkets, Inc., 349 N.L.R.B. 34, 35 (2007) (quoting Bell-
Atl.-Pa., Inc., 339 N.L.R.B. 1084, 1086 (2003), enforced, 99 F. App’x 233 (D.C. Cir.
2004)). Second, the Board applies a presumption: a rule that infringes upon
employees’ Section 7 right to wear protected items “is presumptively invalid,”
and it is the employer’s burden to overcome that presumption. Medco, 2016 WL
4582495, at *4, 6 n.6; Guard Publ’g Co. v. NLRB, 571 F.3d 53, 61 (D.C. Cir.
2009). Third, the Board has established an evidentiary standard: to satisfy its
burden, an employer must put forth “substantial,” “non[-]speculative” evidence
of the particular “special circumstances” that it claims justify its restriction.
Medco, 2016 WL 4582495, at *6 & n.6; Am. Fed’n of Gov’t Emps., 278 N.L.R.B.
378, 385 (1986). Conjecture, conclusory assertions, and generalizations do not
suffice under this standard. Medco, 2016 WL 4582495, at *6; Healthbridge
Mgmt., LLC, 360 N.L.R.B. 937, 938 & n.5 (2014) (“The Board has consistently
held that an employer who presents only generalized speculation or subjective
belief . . . fails to establish special circumstances justifying a ban on union
insignia.”), enforced, 798 F.3d 1059 (D.C. Cir. 2015); Eckerd’s Market, Inc., 183
N.L.R.B. 337, 338 (1970) (“vague, general evidence” is insufficient). Fourth, even
if an employer demonstrates an otherwise sufficient interest in restricting its
employees’ right to wear protected items, a rule doing so is unlawful unless the
employer also shows that it is “narrowly tailored to the special circumstances
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justifying [its] maintenance.” Boch Honda, 2015 WL 1956199, at *2. Under this
rubric, wholesale or “blanket” bans are rarely, if ever, lawful. E.g., Boch
Imports, 826 F.3d at 575–76; Pac. Bell Tel. Co., 2015 WL 3492100, at *5; P.S.K.
Supermarkets, 349 N.L.R.B. at 34–35.
When reviewing a Board decision involving the “special circumstances”
test, courts must give considerable deference to this framework and to the
Board’s application of it to the evidence in the record. As the Supreme Court
has held in the context of Board rules governing the right of employees to
engage in union-related solicitation and distribution on the job, “[t]he judicial
role is narrow: [t]he rule which the Board adopts is judicially reviewable for
consistency with the Act, and for rationality, but if it satisfies those criteria,
the Board’s application of the rule, if supported by substantial evidence on
the record as a whole, must be enforced.” Beth Israel Hosp., 437 U.S. at 492–
93, 501; accord Republic Aviation, 324 U.S. at 803–05; see also Boch Imports,
826 F.3d at 570 & n.7.
III
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. In-N-Out contends, however, that its unique “public
image” interest and its concern with maintaining food safety constitute “special
circumstances” sufficient to overcome this presumption and justify the “no pins
or stickers” rule.
A
We first consider In-N-Out’s “public image” argument. To establish
“special circumstances” based on a purported “public image” interest, In-N-Out
was required to put forth substantial, non-speculative evidence that the
wearing of protected items by employees would “unreasonably interfere” with
a “public image” that the company “has established, as part of its business
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plan, through appearance rules for its employees,” and then show that its “no
pins or stickers” rule was “narrowly tailored” to those particular
circumstances. See, e.g., Boch Imports, 826 F.3d at 571; P.S.K. Supermarkets,
349 N.L.R.B. at 35.
In-N-Out claims that its business plan has long been focused on fostering
a “particularized public image,” the “key component” of which “is that the
customer experience should be consistent from one store to another.” According
to In-N-Out, the “core components” of this “consistent image” are: (1) a menu
that has remained essentially unchanged since 1948; (2) a “sparkling clean
environment” in which customers can see their food being prepared in kitchens
surrounded by glass; (3) excellent customer service; (4) a business model in
which all stores are owned by the company itself rather than by franchisees;
and (5) employee uniforms consisting of “a limited number of specific identified
elements,” to which nothing can be added.
The Board “assum[ed]” that In-N-Out had “tried to create a business
identity based on these factors” but concluded that most of these “core
components” were “irrelevant” to the company’s “special circumstances”
defense. In particular, the Board found that In-N-Out failed to demonstrate a
connection between the “no pins or stickers” rule and the company’s asserted
interests in preserving a consistent menu and ownership structure, ensuring
excellent customer service, and maintaining a “sparkling clean” environment
in its restaurants. The record amply supports the Board’s determination in this
respect.
The Board then evaluated In-N-Out’s assertion that its interest in
maintaining consistent, unadorned employee uniforms as part of its public
image justified the “no pins or stickers” rule. At the outset, the Board correctly
observed that In-N-Out had not established “special circumstances” based
solely on the longstanding nature of its uniform and appearance policies, its
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strict adherence to those policies, or the fact that customers were likely to see
any buttons worn by In-N-Out employees. The scope of the “public image”
exception is exceedingly narrow, and it is well established that none of the
following considerations, standing alone, justifies a rule restricting employees
from wearing items protected by Section 7: an employer’s requirement that
employees wear uniforms or adhere to a dress code; 2 an employer’s status as a
retailer or service provider; 3 the fact that employees interact with the public
or that customers may be exposed to employees displaying protected items; 4 or
the possibility that an employer’s customers might be offended by the items’
content or message. 5
2Pac. Bell Tel. Co., 2015 WL 3492100, at *4 (“The requirement that employees wear
a uniform is not alone a special circumstance justifying a button prohibition.”); P.S.K.
Supermarkets, 349 N.L.R.B. at 35 (same); Woonsocket Health Ctr., 245 N.L.R.B. 652, 659 (1979)
(“The mere fact that an employer has a dress code . . . is not a special circumstance . . . .”).
3 Medco, 2016 WL 4582495, at *8 & n.13; Ark Las Vegas Rest. Corp., 335 N.L.R.B. 1284,
1284 n.1 (2001) (“[S]tatus as a retail employer does not, standing alone, constitute a special
circumstance justifying the proscription of union insignia.”), enforced in relevant part and
remanded, 334 F.3d 99 (D.C. Cir. 2003); Albertson’s, Inc., 351 N.L.R.B. 254, 257 (2007).
4 N.L.R.B. v. Floridan Hotel of Tampa, Inc., 318 F.2d 545, 547 (5th Cir. 1963) (“[T]he
fact that the employees involved come in contact with hotel customers does not constitute
such ‘special circumstances’ as to deprive them of their right, under the Act, to wear union
buttons at work.”); P.S.K. Supermarkets, 349 N.L.R.B. at 35 (“The Board has consistently held
that customer exposure to union insignia, standing alone, is not a special circumstance which
permits an employer to prohibit display of such insignia.”); Meijer, Inc., 318 N.L.R.B. 50, 50
(1995), enforced, 130 F.3d 1209 (6th Cir. 1997).
5 Casino Pauma, 362 NLRB No. 52, 2015 WL 1457679, at *2 (Mar. 31, 2015) (rejecting
argument that a rule prohibiting employees from wearing “any badges, emblems, buttons or
pins on their uniforms” was justified by the employer’s concern that the messages on such
items “might offend its customers”); Howard Johnson Motor Lodge, 261 N.L.R.B. 866, 868 n.6
(1982) (“The lawfulness of the exercise by employees of their rights under the Act, including
union button wearing, does not turn upon the pleasure or displeasure of an employer’s
customers.”), enforced, Howard Johnson Co. v. NLRB, 702 F.2d 1 (1st Cir. 1983); Nordstrom,
Inc., 264 N.L.R.B. at 701–02 (finding that an employer’s “fears regarding the creation of
controversy on the part of the buying public” were insufficient to justify a ban on protected
items).
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The Board also found 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. See
Meijer, Inc., 318 N.L.R.B. 50, 50, 56 (1995) (employer’s contention that
“uniformity and neatness” justified its ban on union insignia was “undercut by
the fact that [it] permit[ted] or encourage[d] its employees to wear a variety of
authorized pins and badges”), enforced, 130 F.3d 1209 (6th Cir. 1997); see also
Mt. Clemens Gen. Hosp. v. NLRB, 328 F.3d 837, 847–48 (6th Cir. 2003)
(hospital’s claim that allowing nurses to wear buttons objecting to forced
overtime would interfere with patient care was undercut by evidence that the
hospital had allowed similar buttons with different messages).
In-N-Out contends that the Christmas and In-N-Out Foundation buttons
do not undermine its “public image” argument because they are “part of the
uniform.” But this assertion hurts rather than helps the company’s case. If the
employee uniform—which In-N-Out describes as an integral component of its
overall public image—changes several times each year, then either the
company’s interest in maintaining a “consistent” public image is not as great
as it suggests, or, alternatively, the uniform does not play as critical a role in
maintaining that public image as In-N-Out claims. As the Board observed, the
Christmas and In-N-Out Foundation buttons are appreciably larger and
“significantly more conspicuous” than the “Fight for $15” buttons. Since the
addition of larger, more noticeable buttons to employee uniforms does not
interfere with In-N-Out’s public image, the Board permissibly concluded that
allowing employees to wear smaller buttons protected by Section 7, such as the
“Fight for $15” buttons, would not unreasonably interfere with the company’s
public image. See Boch Imports, 826 F.3d at 574; Nordstrom, 264 N.L.R.B. at 702.
Under Board law, an employer need not show “actual harm” in order to
establish “special circumstances,” but it must put forth specific, non-
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speculative evidence of the adverse effects it claims justify its restriction. See
Medco Health, 2016 WL 4582495, at *6. In-N-Out did not satisfy this burden.
Particularly when judged in light of the blanket nature of the ban, the Board
was entitled to reject the evidence adduced by In-N-Out as speculative and
conclusory. See Beth Israel Hosp., 437 U.S. at 504 (“The Board [is], of course,
free to draw an inference from [the] facts in light of its experience, the validity
of which ‘depends upon the rationality between what is proved and what is
inferred.’” (quoting Republic Aviation, 324 U.S. at 805)).
In-N-Out asserts that the Board’s decision impermissibly conflicts with
its previous decision in Starwood Hotels & Resorts Worldwide, Inc., 348 N.L.R.B.
372 (2006) (hereinafter, “W San Diego”). We disagree. In W San Diego, the
Board found that an employer did not violate the Act by enforcing a ban on
“uniform adornments” against an employee in public areas of a hotel; however,
the Board’s decision was closely tethered to the “special atmosphere” that the
employer was trying to create through the use of its employee uniforms. Id. at
373. Specifically, the employer “market[ed] itself as providing an alternate
hotel experience referred to as ‘Wonderland’ where guests can fulfill their
‘fantasies and desires’ and get ‘whatever [they] want whenever [they] want it.’”
Id. at 372. In distinguishing W San Diego from the present case, the Board
reasoned that In-N-Out “does not claim that it is trying to turn a fast food
hamburger restaurant into ‘Wonderland.’ Instead, it argues that its business
plan involves creating a public image of a very clean restaurant where all
employees dress alike.” Moreover, while the employer in W San Diego
“essentially was doing theater [by] creating a make-believe environment the
same as actors on a stage,” the Board explained that In-N-Out “is not calling
upon its employees to be actors[,] . . . is not making itself a stage upon which
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to conjure an alternate reality[,] . . . [and] is not casting its employees for parts
in a ‘Wonderland.’” 6
This explanation is more than adequate to distinguish W San Diego from
the present case. The Board may not contravene its own precedents without
sufficient explanation, but “where [it] has not departed from a ‘uniform rule,’
the Board need not give a detailed rationale” for taking a different approach or
reaching a different result. Macy’s, Inc. v. NLRB, 824 F.3d 557, 567 (5th Cir.
2016). Far from establishing an invariable rule, the Board’s decision in W San
Diego turned on “narrow factual circumstances.” Boch Honda, 2015 WL
1956199, at *2 n.6. In-N-Out “must do more than point to a single . . . deviant
precedent” like W San Diego to show that the Board impermissibly departed
from its own precedents without adequate reasoning. NLRB v. Sunnyland
Packing Co., 557 F.2d 1157, 1160–61 (5th Cir. 1977); see also Boch Imports,
826 F.3d at 572–75 (rejecting employer’s reliance on W San Diego).
Nor are we persuaded by In-N-Out’s argument that Davison-Paxon Co.
v. NLRB, 462 F.2d 364 (5th Cir. 1972), requires us to set aside the Board’s
order. In that case, this court denied enforcement of a Board order finding that
a retail department store had violated the Act by prohibiting employees from
wearing a particular union campaign button. Id. at 364–65, 372. The court in
Davison-Paxon stated that the issue before it was whether “the wearing of the
button in question on [the] selling floor was protected activity under Section 7
of the Act.” 462 F.2d at 366. That is not the issue here, however. In-N-Out’s
rule plainly restricts employees from wearing items protected by Section 7,
including the “Fight for $15” buttons. But even if Davison-Paxon were
6 The Board adopted this discussion of W San Diego from the ALJ’s decision. Two
Board members disavowed the ALJ’s discussion of “the scope of what might constitute a
legitimate public image justification in circumstances outside the boundaries of this case,”
(emphasis added) but, contrary to In-N-Out’s assertion, they did not disavow the grounds on
which the ALJ distinguished W San Diego from this particular case.
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applicable to this case, we would find it distinguishable. As the court
emphasized, its decision turned on “undisputed evidence” of “animosity”
between rival employee factions and other evidence of “conflicts and tensions,”
all of which supported the employer’s claim that if the button in question had
not been banned, a conflict might have “erupt[ed] on the sales floor.” Id. at 369
(stating that this consideration “clearly distinguishes the instant situation
from previous cases”). Here, by contrast, there is no evidence that the “no pins
or stickers” rule was necessary to prevent an explosion of employee conflict at
In-N-Out’s restaurants.
We uphold the Board’s reasonable conclusion that In-N-Out failed to
establish a “special circumstances” defense based on its “public image”
interest.
B
In-N-Out also argues that it demonstrated “special circumstances” based
on its concern with maintaining food safety. See W San Diego, 348 N.L.R.B. at
375 (“Health and safety concerns may constitute special circumstances
justifying restrictions on employees’ right to wear union insignia.”). In
particular, In-N-Out alleges that the “Fight for $15” buttons threatened to
compromise food safety because they were “quite small” and “very lightweight,”
such that an employee might not have noticed if one fell into a customer’s food
while the employee was working. In-N-Out contrasts this with its company-
issued buttons, which it claims are not only “significantly larger” but also
feature a “far sturdier” pin mechanism.
As the Board explained in rejecting the company’s food safety argument,
In-N-Out’s “no pins or stickers” rule banned all buttons other than its own,
“without regard to their safety.” Accordingly, even if In-N-Out had
demonstrated a genuine basis for its food safety concerns—which it did not—
it failed to show that its rule was “narrowly tailored” to that concern. See Boch
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Imports, 826 F.3d at 575–76. With respect to the “Fight for $15” buttons, the
ALJ examined those buttons, as well as the company-issued buttons, and
“[d]iscern[ed] no apparent, significant difference in safety.” 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[].” Id. at 576 (quoting Boch Honda, 2015 WL 1956199, at
*3 n.7).
The Board’s conclusion that In-N-Out failed to establish “special
circumstances” based on its purported food safety concern is reasonable and
supported by substantial evidence.
C
The Board properly rejected In-N-Out’s “special circumstances” defense.
Accordingly, we uphold the Board’s findings that the company violated Section
8(a)(1) of the Act by maintaining and enforcing the “no pins or stickers” rule,
and by instructing Crowder to remove his “Fight for $15” button. We also
uphold the Board’s finding that In-N-Out violated Section 8(a)(1) when Moore
responded to Nevels’ question about wearing a “Fight for $15” button by stating
that the button was not a part of the uniform. As the Board explained, “an
employee would reasonably infer from that statement that he was being told
he could not wear the button.” See Comcast Cablevision of Phila., L.P., 313
N.L.R.B. 220, 220 & n.3 (1993) (employer violated Section 8(a)(1) by telling
employees that the union buttons they were wearing violated the company’s
uniform policy and “ask[ing], apparently rhetorically, if they thought they
should nevertheless wear them”); cf. NLRB v. Gissel Packing Co., 395 U.S. 575,
617 (1969) (when assessing employer statements made to employees, one
“must take into account the economic dependence of the employees on their
employers, and the necessary tendency of the former, because of that
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relationship, to pick up intended implications of the latter that might be more
readily dismissed by a more disinterested ear”).
In-N-Out suggests that the Board’s order is overbroad because it would
require the company to allow buttons and pins of “any size” and “any
construction[]” into its kitchens and dining rooms. Neither In-N-Out’s
exceptions to the ALJ’s decision nor its supporting brief to the Board discussed
this objection. Consequently, under Section 10(e) of the Act, we cannot review
it. 29 U.S.C. § 160(e) (“No objection that has not been urged before the
Board . . . shall be considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary circumstances.”);
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665–66 (1982) (“[T]he
Court of Appeals lacks jurisdiction to review objections that were not urged
before the Board . . . .”); see also Marshall Field & Co. v. NLRB, 318 U.S. 253,
256 (1943); Hallmark Phoenix 3, L.L.C. v. NLRB, 820 F.3d 696, 713 (5th Cir.
2016). 7
IV
For these reasons, we DENY In-N-Out’s petition for review and GRANT
the Board’s cross-application for enforcement.
7 Furthermore, because In-N-Out raised this argument for the first time in its reply
brief, it is waived. Flex Frac Logistics, 746 F.3d at 208. Assuming we could address this
argument on the merits, we would reject it. The Board’s exercise of remedial authority under
Section 10(c) of the Act, 29 U.S.C. § 160(c), is entitled to “the greatest deference,” ABF Freight
Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994), and In-N-Out has not shown that the Board’s
“order is a patent attempt to achieve ends other than those which can fairly be said to
effectuate the policies of the Act.” NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344,
346–47 (1953) (quoting Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)).
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