U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

In-N-Out Loses Union Busting Appeal

In-N-Out Burger, everyone's favorite West Coast burger chain, and one with a reputation for treating employees better than its competitors, recently found itself in hot water with the NLRB over a "Fight for $15" pin worn by a couple employees. The "Fight for $15" campaign is all about food service workers banding together to fight for a $15 minimum wage.

The burger-maker appealed the NLRB order to the Fifth Circuit, while the NLRB filed a request that the appellate court enforce their order. And though the public may like the burgers, the appellate court agreed with the NLRB, and denied In-N-Out's appeal.

Details of the Appeal

Basically, In-N-Out was asking the appellate court to throw out the NLRB decision. But, as the Fifth Circuit explained, that's a high burden, given the authority vested in NLRB decisions. The court clearly explained:

"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, and will uphold the Board's findings of fact so long as they are supported by substantial evidence."

The case boiled down to In-N-Out's uniform policy, which prohibited employees from wearing buttons or stickers of any kind. In short, while the court recognized the importance of In-N-Out wanting to maintain a "public image," it noted that the board had ample reason for reaching its determination.

Interestingly, although In-N-Out does have a uniform policy that would prohibit the wearing of buttons or stickers, it also required employees to wear particular buttons during two times of the year, which undercut their argument that wearing buttons was a food safety issue and their argument that it is inconsistent with their public image of clean, uniform employee appearance.

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