IN-N-OUT BURGER, INC.,

Docket Number:16-CA-156147
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

In-N-Out Burger, Inc. and Mid-South Organizing Committee. Cases 16–CA–156147 and 16–CA– 163251

March 21, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On July 11, 2016, Administrative Law Judge Keltner

W. Locke issued the attached decision. The Respondent filed exceptions, a supporting brief, an answering brief, and a reply. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions in part, to reverse them in part,2 to

amend the remedy, and to adopt the recommended Order as modified and set forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

2 We adopt the judge’s findings that the Respondent violated Sec. 8(a)(1) of the Act by maintaining a rule prohibiting employees from wearing unauthorized buttons or insignia and by instructing employee Brad Crowder to remove his “Fight for Fifteen” button. Contrary to the judge, we find that the Respondent also violated Sec. 8(a)(1) of the Act when Supervisor Daniel Moore told employee David Nevels that the “Fight for Fifteen” button was not part of the uniform. The parties agree that the judge mistakenly read this allegation as referring to a conversation between Moore and employee Amanda Healy rather than between Moore and employee Nevels.

The parties stipulated, and Moore testified, that when asked by Nevels if he could wear a “Fight for Fifteen” button, Moore told him that it “was not part of [the company] uniform.” Because we find that an employee would reasonably infer from that statement that he was being told he could not wear the button, we find that Moore’s statement violated Sec. 8(a)(1). We further find that this violation is closely connected to the complaint allegation that Moore ordered an employee to remove a “Fight for Fifteen” button and that it was fully litigated. See Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920

F.2d 130 (2d Cir. 1990). Acting Chairman Miscimarra finds that the allegation concerning the statement made to employee Nevels is cumulative, and that it is unnecessary to pass on that allegation. Acting Chairman Miscimarra agrees that the Respondent’s instruction to employee Crowder violated Sec. 8(a)(1), and an additional 8(a)(1) violation finding based on the statement to Nevels does not materially affect the remedy. In the Acting Chairman’s view, an order to cease and desist from telling employees to remove buttons and an order to cease and desist from telling employees they may not wear buttons amount to the same thing.

Acting Chairman Miscimarra and Member McFerran disavow the judge’s discussions of: the Respondent’s business practices (e.g., com-

paring rigorous enforcement of the rule to “a drill sergeant at boot camp” and characterizing the Respondent’s brief as arguing that “individuality must be drastically suppressed”); the Respondent’s motives behind the rule (ban arose “not . . . to achieve a particular business objective but out of a fear of losing control”); and the scope of what might constitute a legitimate public image justification in circumstances outside the boundaries of this case (business objective of achieving “a sparkling clean restaurant,” as opposed to “conjur[ing] an alternate reality,” not “special enough” justification for an insignia rule in the fast food industry at large).

Acting Chairman Miscimarra agrees that the Respondent has presented insufficient “public image” evidence to render lawful the Respondent’s indication that employees could not wear a small “Fight for Fifteen” button on their uniforms. However, Acting Chairman Miscimarra disclaims reliance on the judge’s characterization of case law regarding policies that permit employers in some cases to restrict the wearing of buttons and pins. The Board and the courts have found such restrictions to be lawful where the wearing of various buttons and pins would unreasonably interfere with the employer’s public image. See, e.g., United Parcel Service, 195 NLRB 441, 441 (1972); W San Diego, 348 NLRB 372, 373 (2006); United Parcel Service v. NLRB, 41 F.3d 1068 (6th Cir. 1994). In this regard, the judge discounted the Respondent’s prohibition against buttons and pins, in part, because the judge contrasted the Respondent’s business (involving the sale of hamburgers, french fries, and soft drinks) with W San Diego, where the employer’s policy against buttons and pins was associated with the preservation of a public image involving a “wonderland effect.” Acting Chairman Miscimarra believes that the judge’s analysis, in this respect, creates the appearance of passing judgment on the sophistication or novel nature of the public image that may be at issue in a particular case. Acting Chairman Miscimarra notes that, in United Parcel Service, for example, the Board and the court upheld restrictions on the wearing of buttons and pins primarily based on the trademark brown uniforms worn by UPS employees. In this regard, Acting Chairman Miscimarra disagrees with any implication that conventional products (such as hamburgers, french fries, and soft drinks) could never warrant maintenance of a public image that, in turn, could constitute “special circumstances” justifying a restriction on buttons and pins. Acting Chairman Miscimarra also believes the judge erroneously reasoned that the Respondent’s “public image” defense was undermined by evidence that, at the Respondent’s direction, employees sometimes wore employersupplied buttons stating, “Merry Christmas” or referring to a charity

(i.e., the “In-N-Out Foundation”). Here as well, Acting Chairman Miscimarra believes the judge incorrectly passed judgment on the type of public image maintained by the employer; in Acting Chairman Miscimarra’s view, when the Board evaluates the legality of a restriction on buttons and pins, an employer’s “public image” can legitimately recognize certain holidays or charities without diminishing the importance of the public image to the employer’s business.

3 We agree with the General Counsel that the judge erred in declining to order a nationwide remedy and instead ordering that the issue be left to the compliance stage of the proceeding. The parties stipulated that the Respondent’s “dress and grooming” policy applied to employees at all of the Respondent’s 300-plus restaurants, and the Respondent’s brief made repeated references to the importance of the “consistency” of the customer experience from store to store. “’[W]e have consistently held that, where an employer’s overbroad rule is maintained as a companywide policy, we will generally order the employer to post an appropriate notice at all of its facilities where the unlawful policy has been or is in effect.’” MasTec Advanced Technologies, 357 NLRB 103, 109 (2011), enfd. DIRECTV, Inc. v. NLRB, 837 F.3d 25 (D.C. Cir. 2016) (quot-

365 NLRB No. 39

2

ORDER

The Respondent, In-N-Out Burger, Inc., Austin, Texas, its officers, agents, successors, and assigns, shall

  1. Cease and desist from

    (a) Maintaining 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.

    (b) Directing 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.

    (c) Directing employees that they may not wear any button or insignia pertaining to wages, hours, terms and conditions of employment or union, or other protected activities.

    (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

  2. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Rescind the rule in its appearance policy that prohibits employees from wearing any button or insignia without making an exception for buttons or insignia pertaining to wages, hours, terms and conditions of employment or union, or other protected activities.

    (b) Furnish all employees nationwide with inserts for the current employee handbook that (1) advise that the unlawful appearance policy has been rescinded, or (2) provide the language of a lawful rule; or publish and distribute to all employees nationwide a revised appearance policy that (1) does not contain the unlawful rule, or (2) provides the language of a lawful rule.

    (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful instruction and/or warning it gave to employee Brad Crowder requiring him to remove a button pertaining to terms and conditions of employment from his clothing and, within 3 days thereafter, notify Brad Crowder in writing that this has been done and that the warning will not be used

    ing Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007)). Accordingly, we shall modify the judge’s...

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