Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
KING, ELROD, and GRAVES, Circuit Judges.
E. GRAVES, JR., Circuit Judge:
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. 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.
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.
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. 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
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.
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. The Christmas and In-N-Out Foundation buttons are
approximately three times larger in diameter than the
"Fight for $15" buttons.
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.
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). 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.
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).
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 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 ...