United States: Labor Board Finds Nothing Special About Burger Chain's Uniforms

Last Updated: May 8 2017
Article by Michael D. Carrouth and Cynthia Federico

The National Labor Relations Board recently ruled that In-N-Out Burger's uniform policy, which forbids employees from wearing buttons, pins, or stickers on their uniforms, violated Section 8(a)(1) of the National Labor Relations Act. Although the popular burger chain argued "special circumstances" justified the policy – namely that it wanted to create the public image of a "sparkling clean" restaurant – the Board rejected that line of reasoning in its March 21, 2017 ruling.

This case reiterates two major points. First, it doesn't matter if an employer is unionized or not; nearly all private employers are subject to the National Labor Relations Act (NLRA). Second, while some "special circumstances" might justify limited prohibitions on the display of certain buttons, employers bear the burden of proving those circumstances exist and that their prohibitions are narrowly tailored to address only those circumstances.  

This decision is not the best news for employers, who may be left wondering whether the National Labor Relations Board's (NLRB's) decidedly pro-union stance will begin to shift given the change in administration. To understand the current state of the law and where things might be going, read on.

Employer Thought Buttons Weren't "Sparkling"

Since 2012, employees in restaurant and retail establishments have led the "Fight for Fifteen" cause: the effort intended to pressure state and local legislators to raise the minimum wage to $15.00 per hour or for employers to raise their wages voluntarily, while also pressuring employers to accept union representation. One such group to take on the fight worked for In-N-Out Burger, the popular fast food chain operating in the Southwest and Western U.S. To aid their cause, some of the employees in an Austin, Texas location wore "Fight For $15" buttons on their uniforms.

In-N-Out's uniform policy forbade any pins, buttons, or stickers apart from a company-issued nametag that had to be clean and not worn-looking. The company's goal was to present the image of a clean restaurant where all employees dress alike. According to In-N-Out's business philosophy, its intention was to form a distinguishing brand identity with bright white uniforms and strict grooming requirements for employees. In the words of the company, they wanted customers to always feel like they were in a "sparkling clean environment."   

Following the policy, a supervisor instructed one of the employees to remove a "Fight for $15" button. In a separate incident, a supervisor told another employee he was not permitted to wear the button because it was not part of the uniform. Aided by a union organizing committee, the employees filed an unfair labor practice charge and accused the company of interference with their Section 7 rights to act together for mutual aid and protection.

NLRB Forces Employer To Allow Buttons

The Board did not take kindly to In-N-Out's policy, noting that in previous decisions to uphold an employer's right to restrict union insignia under the "special circumstances" exception, the employer demonstrated such restriction was necessary to achieve safety or particular business objectives, such as the presentation of a distinct public image. However, the Board went on to say these policies are "presumptively invalid" and the burden is squarely on the employer's shoulders to prove otherwise.

In these kinds of cases, the Board balances the employee's right to engage in union activities against the employer's right to maintain discipline or achieve its legitimate business objectives. The NLRB looked to prior cases examining the same issues to determine how it should rule in the In-N-Out case.

It first examined a 1982 decision against Burger King, where it found similar "special circumstances" did not exist to justify a ban on union organizing buttons – although it is worth noting the Board's decision was overturned in 1984 by the 6th Circuit Court of Appeals. The court disagreed with the Board and found the restaurant met the criteria for special circumstances by maintaining a consistent, non-discriminatory dress code policy to project a clean, professional image to the public.

The NLRB then examined three more recent cases where the public image exception was allowed, claiming that each had "unusual" facts justifying a ban. In a 2004 case involving Pathmark Stores, the Board permitted a supermarket to restrict a butcher from wearing a t-shirt with the words "Don't Cheat About The Meat," agreeing the message could lead customers to fear they were being cheated by the supermarket. In 2007, it permitted a construction company to bar a worker from wearing a hardhat depicting a person urinating on a "non-union" rat, ruling the sticker was "unquestionably vulgar and obscene," and the prohibition was narrowly tailored to address only that particular sticker.

In the most unique case involving the W Hotel in San Diego, the Board permitted the employer to ban a button stating "Justice NOW! JUSTICIA AHORA! H.E.R.E. LOCAL 30." The NLRB found special circumstances existed because the hotel marketed itself as providing a unique experience – referred to as "Wonderland" – where guests could fulfill their fantasies and "get whatever they want." The company asked its workers to essentially perform theater and create a make-believe environment, serving as actors on a stage with the guests as audience members.

According to the Board, In-N-Out's situation was much more similar to the Burger King case than any of the other three "unusual" cases. It did not believe the burger chain sufficiently explained how its practice of prohibiting the buttons was necessary to uphold its business model, and was not convinced the buttons would adversely affect the business in any way.

What The Ruling Means To Employers

There are two main lessons you can learn from this decision. First, most private employers are covered by the NLRA, even those that are not unionized. Therefore, the uniform policy standards established by the Board likely apply to your workplace. Second, the burden of establishing special circumstances always rests on the employer. The Board has found three circumstances justifying the proscription of union insignia:

  • when its display may jeopardize employee safety or damage machinery or products; 
  • when its display might exacerbate employee dissension; or 
  • where it unreasonably interferes with a public image which the employer has established as part of its business plan, through non-discriminatory appearance rules for its employees.

As usual, the devil is in the details. The In-N-Out decision makes clear that public image restrictions require a narrowly tailored prohibition. Customer exposure to insignia alone is not a special circumstance, nor is the requirement that an employee wear a uniform.

What's Next?

The employer in this case could appeal the decision to a federal court of appeals in the hope of overturning the Board's decision, as happened in the Burger King case cited above. But such a decision could take several years, and a reversal is by no means a certainty.

Some may wonder whether President Trump's election to the White House will spark a change at the NLRB, leading to rulings that are less pro-union in nature. While it seems certain that a change will come, it will not come overnight. Although President Trump quickly appointed Republican Philip Miscimarra as interim chairman of the NLRB, the chairman does not set the agenda for board decisions. That responsibility falls to the Board's General Counsel, a position currently occupied by Obama-appointee Richard Griffin. He will continue to determine which cases are heard by the Board until the end of his four-year term in November 2017. Even if the president fills the two vacant spots on the Board with Republicans this summer, it could take months before new cases address some of the controversial decisions of the Obama Board.

Most importantly, even if there is a change in leadership and direction with a Republican majority, there is no guarantee that a Trump-era NLRB will significantly alter the uniform policy test applied in the In-N-Out case. For these reasons, you would be wise to follow the lessons taught by this case for the foreseeable future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions